State v. Francis

98 S.W. 11, 199 Mo. 671, 1906 Mo. LEXIS 336

• Court: Supreme Court of Missouri
• Decided: December 4, 1906
• Status: Published

Opinion

BURGESS, P. J.

The defendant was charged in the information with murder, in the first degree, committed upon Winona Newt-on by administering'to her carbolic acid, a deadly poison; and by choking and strangling her, and with assaulting her with dangerous and deadly weapons, to-wit, a knife and a large heavy stone. Upon arraignment lie pleaded not guilty. A trial was had in the criminal court of Jackson county, at' which he was convicted1 by the verdict of a jury of murder in the first degree. Prom the judgment of conviction and sentence of death and from order denying him a new trial, and in overruling his motion in arrest, defendant has appealed to this court.

Defendant contends that the evidence did not warrant the verdict and that numerous errors were committed upon the trial, which entitled him to a reversal of the judgment upon the ground of the want of evidence to justify the verdict, and if this contention be not sustained, that the judgment be reversed and a new trial awarded because of numerous errors committed upon the trial.

Prom an examination of this enormous record we are convinced that in order to' reach a decision in the case it will be only necessary to pass upon one question presented by the appeal, and that is the sufficiency of the evidence to sustain the verdict. The evidence of the State was entirely circumstantial and in order to have justified the verdict the facts and circumstances in evidence should be consistent with each other' and with the guilt of defendant and inconsistent with any reasonable theory of defendant’s innocence.

The theory of the State was that the defendant had been criminally intimate with the deceased resulting in her pregnancy, and in order to cover up his crime administered to her carbolic acid, a deadly poison, from the effects of which she immediately thereafter died. It was therefore necessary for the State to prove, the body of the crime, or the fact that a murder had1 been committed by proof of the death of Winona Newton by the criminal agency of the defendant. The death of Winona Newton being undisputed, the question for our consideration is whether the evidence was so strong and convincing as to bring the case within the rule announced, and that her death was the direct re-suit of the criminal act of the defendant. Circumstantial evidence was sufficient for that purpose if it was of such a character as to leave the inference of guilt the only reasonable inference to be deduced from the facts disclosed by the evidence. In order to justify the verdict of guilty, however, if the jury found the cause of death to have been' through the administration of carbolic add poison, the evidence must have pointed with conclusive force to that result and that the defendant administered the poison to the deceased.

Winona Newton was at the time of her death about fifteen years of age, and rather small for her age. She lived with her father, three brothers and two younger sisters in the suburbs of Kansas City, near 55th street and College avenue. The mother had been declared insane and sent to the lunatic asylum prior to the commission of the crime. The defendant was a single man, twenty-one years old, and by occupation a railroad detective.

A short distance from the Newton home was a bridge over a little creek; this' bridge was situated1 near 55th street and Walrond road. Prior to living at the above-named place the father of the deceased resided near the home of defendant, or, rather, the home of defendant’s mother. Defendant was apparently on friendly terms with deceased, especially after the time that she worked for and waited on defendant’s mother during one or two^ sick spells. After deceased’s father moved out on 55th street, deceased and defendant corresponded, often not signing their .true names to the letters. Deceased had been taking medicine, and desired defendant to give her money with which to employ a physician. The letters indicate that defendant had been meeting deceased at night, clandestinely, and had failed to meet her after dark on one or two occasions. The evidence further showed that defendant went out to this little bridge twice after dark, and met deceased and her younger sister once. That defendant admitted that he had been back of deceased’s house and near the coal shed one night'when she and her father passed by. On other occasions, shortly before her death, deceased visited the switch yards, where defendant was employed, .and spent considerable time in company with defendant, going into a house alone with him. To other railroad men defendant stated that deceased was his sister, his sister-in-law, his niece, his. cousin and his girl. Deceased was in poor health, having missed her menstruation twice; she suffered a good deal, and took such medicines as Peruna, Mountain Balm and Lydia E. Pinkham’s Female Complaint. On Friday, November 3,1905, deceased spent most of the day in the house, lying down on a couch; and her father and one brother spent most of the day doing some work in the cellar. About 5:30, p. m., just before dark, deceased’s sister, Ada, commenced to get supper, and one of the boys suggested to let deceased cook some corn starch. Deceased got up and walked out on the back porch, where she remained for about five minutes, and then returned to the kitchen. Ada suggested to the brother to get up off of the lounge and let deceased lie down, but deceased replied that she did' not care to lie down. Deceased then got a cup and put it under her arm, got a fascinator and placed it around her neck, looked at her father, and at Ada, and walked out of the kitchen onto the back porch. In a little while the corn starch was ready to be taken off of the stove; and Ada stepped to the porch and called deceased, but received no reply. After waiting still longer, Ada went and called again; she returned to the house and told her father of her inability to find deceased. Then one of the boys was sent out in the yard; he looked around the coal shed, privy and back yard, and returned with the word that deceased could not be found. Then the father and one of the boys went out with a lamp, made a careful examination of the premises, and went to two of the neighbors, met two or three people on the street, and went up to' á store. After making there inquiries they returned and had supper. At ten o’clock the other son returned from his work; then the whole family went to bed. The next morning the body of the deceased was found southeast of and near the little bridge referred to, with a large stone on top of her head. There were finger marks on the throat of deceased, a wiound on the forehead, one on the cheek and one over the eye. There was also a clean cut on each side of the face, made by a knife. In the mouth was the odor of carbolic acid, and an ounce and a half of that liquid was found in her stomach. The empty cup which deceased' took from home was found on the ground near her dead body. A further examination showed that deceased was pregnant, and had. been in that condition for about two months.

One of the State’s witnesses, named Ed Marcus, testified that he crossed that little bridge just before dark that evening, saw defendant standing there, and that he stopped and talked with defendant, he knowing defendant by name. The witness noticed that defendant was looking around at the bridge very closely, and asked defendant if he was the bridge inspector, defend-' ant replying that he was.' Defendant pointed to the Newton house and asked Marcus if he knew wlm lived in that house; to which Marcus replied that he (defendant) went with a girl up there enough to know who lived in that house: Marcus stated that he then passed on, leaving defendant still standing on that bridge; he also stated that he noticed a horse and buggy standing close to a fence near the bridge.

Another witness, Fred Grubb, testified that he passed near that bridge about that time, saw defendant, and recognized him; that he saw deceased come out on her back porch and sit down on the edge of the porch; that defendant waved to her, and deceased' got up and went back into the house.

Defendant was arrested, and in Ids pockets were found letters written by deceased to defendant, and one letter written by defendant to deceased, wbicb he bad never mailed. In bis statements to tbe police officers and to tbe prosecuting attorney defendant stated tbat be did not know tbat Winona Newton was dead; tbat be was not out there tbat afternoon, and knew nothing about it. He also admitted writing a letter to deceased in red ink, but claimed tbat all of the letters tbat he wrote to' her were suggested by letters tbat be received from her; and tbat all of tbe money tbat be sent to her was sent because be thought bis mother owed her for work. Defendant admitted tbat be bad given defendant some money to buy shoes with, and also to buy medicine with; tbat deceased told defendant’s mother tbat she bad been wading in tbe creek and bad missed her monthly sickness; tbat bis mother prescribed for her, and told her tbat medicine would bring her around all right. Tbe defendant further said tbat on bis pay day be went over to meet deceased at tbat bridge, intending to give her some more money, and that be met deceased and her little sister; tbat be then gave deceased fifty cents to-pay for mending her shoes. He also admitted writing letters to deceased, wbicb be signed “Jesse,” because be knew her father did not allow her to receive letters from a man. Defendant further admitted that bis mother bad told him tbat deceased was suffering with blood poisoning, and tbat deceased” bad talked to bis mother about medicine for that trouble. In these statements defendant said tbat be was not out at tbat bridge on tbe night tbat deceased was murdered, but was with bis mother at supper, and then went with bis mother to tbe residence of a family named Jacobe, where they spent tbe evening.

This letter in red ink was read by Ada Newton, a sister of deceased, who< testified to its contents as follows : “Where in tbe wide world have you been? Meet me at tbe bridge; meet me alone; I have some medicine for you. If you don’t meet me send Ada, and tell me wihy you d'on’t meet me. Kid, I have some money for you. By, by, Dear.” (Signed) “Jesse.” Ada Newton further testified that she was acquainted with and recognized this letter as being in defendant’s hand writing. That this letter was given to her by the postman, and she gave it to and saw deceased read it; the witness reading it over deceased’s shoulder. After reading it deceásed burned the letter. For several days prior to receiving said letter, deceased had been away from home, and had been staying with the Matney family, where there had been a death; this was in the latter part of October, 1905.

The night watchman, of the telephone exchange testified to having ten or twelve calls from the defendant on the night of November 3rd; that defendant told him once that he was at the pesthouse, then that he was at the dog pound, then that he was at the police station, and finally said that he did not believe that his little brown haired girl and he were on friendly terms any longer. This witness had calls from defendant till after one o’clock that night; and also heard three or four ladies talking at the same ’phone with defendant. In October, 1905, .two1 witnesses testified to overhearing a conversation between defendant and another man, in which defendant said, “I have to hurry up and meet the kid between five and six o’clock; poor little Winona, she isn’t very old, she don’t know right from wrong; but she is a Grod damn good kid to stay with. ”

On behalf of the defendant, the evidence tended to prove an alibi; he introduced several witnesses who told of his whereabouts during the afternoon of November 3rd, and several who testified that the defendant was at the Jacobes’ after supper. These witnesses testified that the defendant came to the Jacobs house in company with the defendant’s mother. His mother did not testify. The defendant took the stand and denied all knowledge of the murder of Winona Newton, and denied ever having sexual Intercourse with her. There was also some evidence introduced contradicting and tending to- impeach some of the State’s witnesses.

That Winona Newton died from the effects of carbolic acid poison is conclusively shown by the evidence, but as to whether administered by her own hand or by some other person, especially by the defendant, is a question demanding the most serious and careful consideration. The intimacy that had existed between the defendant and the deceased for so long a time, the visits that she made him, the clandestine meetings that took place between them, the repeated requests made by him for her to meet him, the contents of the letters that were found upon his person when arrested, the contents of the letter written with some red liquid, the giving her money upon different occasions to- pay for mending her shoes and the purchase of medicines, her appeal for money with which to get a doctor, his statements made while under arrest, his remark to- a friend of his some time prior to the homicide that “I have got to hurry up and meet the kid [referring to- deceased] between five and1 six; poor Winona, she don’t know right from wrong, but she is a damn good kid to be with, ’ ’ and the fact that there was no evidence that she associated with any other man, tends strongly to show that he was responsible for her unfortunate condition, but this falls far short of establishing the fact that he was her murderer. There was no evidence that he had ever obtained for or furnished her with the poison causing her death, or that he or she ever knew that she was pregnant at the time of her death, but upon the other hand the evidence tended to show that she- thought she had taken cold, which had caused her monthly periods to cease, and that she was taking such medicine as she could procure in order to restore her normal condition. They had no quarrel but seemed to be upon the best of terms. WTiat motive then could he have had in murdering her? There is not a scintilla of evidence in the record tending to show that he had any desire to break off his alliance with her; upon the contrary the evideuce clearly shows that he desired its continuance. There was therefore no apparent motive for the homicidal act by defendant, and while it does not follow that there was no motive because none appeared, and this is not conclusive of defendant’s innocence, yet it is a very important factor in this case, as tending to show his innocence. [State v. David, 131 Mo. 380.]

Much stress' is laid upon the fact that in the £ £ red ink letter” written by the deceased to meet defendant alone at the bridge where the dead body was found, it was stated that he “had some medicine for her.” The letter was written in October before the homicide, and in addition to asking the deceased to meet him at the bridge, asked her if she could not meet him to send her sister, Ada, who was then about twelve years of age. There is no evidence whatever tending to show that the medicine which defendant then had for the deceased was poisonous — upon the other hand it tends rather to show that it was not poisonous, otherwise he would not have intended to send it by her sister. It is said for the State that in accordance with that letter, defendant went to that bridge late on the afternoon of November 3rd, and like most other men about to commit a crime he tried to deflect suspicion from himself. But that letter was written in the month of October, and in it defendant asked deceased to meet him on the following Wednesday or Thursday evening, while the homicide was committed on the night of the third day of November, which was Friday. It does not, therefore, tend to show that defendant was ever at the bridge on the evening of the night of the murder.

One Ed Marcus, a witness for the State, testified that he saw the defendant at the bridge late in the evening of the 3rd of November, that defendant told him he was the bridge inspector, but he was so completely impeached, that he was unworthy of belief. Indeed the evidence upon the part of the defendant shows eonclusively that he was not at the bridge upon that evening, but was elsewhere.

Adelbert Myers, a witness, says this Marcus boy was at work for him on that day, and was with him all day until about half past five o ’clock when he sent him to his (Myers’) home; that when he, Myers, reached home about six or half past six o’clock, the boy was there and ate supper with his family, and after supper he and his wife, with this boy, went, in company with Martin Ragan and his wife, to the theatre, where they remained until late at night, when the boy returned with them and stayed at Myers ’ home all night. This testimony is corroborated by Mrs. Myers, who says the boy reached her home about half past five o’clock in the evening, brought their horse from the blacksmith shop, where he had been shod, and the boy remained at the house until her husband reached home, had supper with them and went with them to the theatre, in company with the Ragans. Martin Ragan and his wife both say Mr. and Mrs. Myers, with the Marcus boy, reached their house about 7:30 o ’clock in the evening, and they all went to the theatre together and left together, and tell of talking to the boy on the way home; they tell of the attraction at the theatre that night, that it was amateur night, that Friday night is amateur night at the theatre, and that this particular attraction was at the theatre but one amateur night and that was on Friday night, November 3d, 1905, the night of this girl’s death. This testimony is further corroborated by the testimony 'of a number of employees of Myers, and the Marcus boy was not recalled to deny their testimony.

That Marcus was not at the bridge the night of November 3d, is clear, and that he was mistaken as to the night, or committed wilful and corrupt perjury, is equally clear.

In State v. Huff, 161 Mo. l. c. 487, it is said: “Testimony completely impeached is no testimony at all, and rests on the same basis, in legal contemplation, as though no testimony had been introduced. And when such a case occurs, relief will be granted by this court. [State v. Packwood, 26 Mo. 340; State v. Primm, 98 Mo. l. c. 373, and cas. cit.] ”

Fred Grubb, a witness ‘for the State, testified that he saw the defendant on the bridge the night of November 3, about 5:40 o ’clock, just at dark, and although he had never seen him before in his life, and although he was one hundred and eighty-five feet from him, in a direct line, and could only see him when looking between the boards which formed the north banister of the bridge, he testified that the man he saw there was the defendant. But the little boy, John Newton,' who knew the defendant well and whn was with Grubb at the time, and had as good an opportunity to see the man on or near the bridge, failed to recognize him as the defendant. In-contradiction of Grubb, defendant introduced the testimony of D. O. Spangler and his wife, Frank Embre, William Blane and his wife, Joseph Lowry, A. C. Cooper, Alice and Peter Jacobe, C. E. Freeman and his wife and the defendant himself, by all of whom it was proven that defendant was not present at the bridge at the time Grubb testified that he saw him there. Mr. and Mrs. Blaine testified that at the very time Grubb says he saw defendant at the bridge the defendant was in their place of business, at 8th and Walnut streets, six miles from the bridge, getting a hat for which he paid them two silver dollars and got in exchange the hat and fifty cents in silver, and they recognized the hat offered in evidence as similar to the hat Francis received from them, and they recognized the hat positively (by the work on it) as one they had repaired, cleaned and blocked; they go farther and tell us why they are able to fix the exact date and the time of their transaction with defendant: a lady whose name and address they give was visiting them on this evening, and that lady arrived about half past four in the evening, and she was there when the defendant came in and the transaction with him was just before closing time (6 o’clock), was the last transaction of the day, and was after the lamps were lighted, and they say it was between half past five and six o ’clock. If their testimony is true, the defendant could not have been at the bridge when Grubb claims to have seen him. The Blaines’ testimony is corroborated by A. L. Cooper, who says he saw defendant at the entrance to the Bank of Commerce building at about five o’clock, and D'. O. Spangler, who says he and defendant left the bank of Commerce building at about five o’clock and went to Tenth and Main streets (the Bank of Commerce building is at Tenth and Walnut streets, one block east of Tenth and Main streets), where they stood a few moments and at about 5:10 o’clock separated, the defendant going north on Main street, saying he had to go to Eighth and Walnut to get his hat. Frank Embree says he saw defendant a few minutes- later (when it was growing dark and the lights in the restuarant were burning) pass a restaurant on the north side of Eighth street, between Main and Walnut, and talked with him a moment; that defendant was then going east toward the store of the Blaines; and the defendant relates these facts substantially as testified to by all of these witnesses, and says when he left the hat store he took a car and went home. He further says that after he left Spangler at Tenth and Main he stopped on his way to the hat store at the Owl drug store, and purchased a bolt of “easy strap.”

Joseph Lowry says that defendant reached home about six o’clock and immediately after supper defendant and his mother left the house together, stating they were going to Jacobe’s to spend the evening, and at about half past eleven o’clock: they returned and with them the little Jacob e girl.

. Mr. and Mrs. Jacobe testified that the defendant and Ms mother reached their house about seven o’clock and remained until eleven or eleven-thirty that night, and they are corroborated in this by the testimony of Mr. and Mrs. Freeman, who testified' that defendant and his mother reached the Jacobe home at two or three minutes before seven o’clock. It seems to us a more perfect and reasonable alibi has seldom been established, and, confronted with tMs testimony, the irresistible conclusion is and must be that Fred Grubb was mistaken in his identity of the defendant as being the man on the bridge; but even were Ms testimony true and if it were shown positively that defendant was upon the bridge when Grubb says he saw him, the evidence would still fall far short of proving that defendant murdered the deceased.

One Raymond Lyming was another witness upon the part of the State. This witness was a boy Mne years of age, had attended school about two and one-half years, but had never gone to Sunday School or attended church. Being asked if he knew the meaning of an oath, he answered that he did, that his father told him what it was, but he did not know what they would do with him if he did not tell the truth. He was objected to as a witness by defendant because incompetent. He was, however, allowed to testify and stated that he saw the defendant at the bridge at about eight o ’clock on the night of the homicide; that he was in fifteen feet of him when he lit- a match to light a cigar and by the light of the match he saw his face. That he did not know him at the time, but recognized him when he saw Mm in the court room. But he also testified that at the time he saw defendant the witness was on his way home on horseback, and that John Newton, the brother of deceased, was riding behind him upon the same horse; that at the same time Winona and Ada were coming up there and she told John to hurry on home. Now the evidence conclusively shows that at the very time that the witness testified to having seen defendant at the bridge both John and Ada were at home, so that it is manifest that tbe witness did not tell the truth, or that he was mistaken as to the night when he saw defendant, and we conclude that it must have been the latter.

The State seems to lay much stress upon the testimony of one Maudie Bowles, a witness for the State, to the effect that she heard the defendant say to another young man whom she-did not know, “Why I have got to hurry up and go and meet the kid between five and six; poor Winona, she don’t know right from wrong, but she is a damn good kid to be with,” as tending to show that the defendant met the deceased at the bridge on the evening of the third of November, 1905', but the witness stated emphatically that said conversation (if indeed it ever took place) occurred between the first and the fifteenth of October, 1905. It, therefore, had no tendency whatever to show that defendant met and murdered deceased on the 3rd of November next thereafter.

It follow's that there is not one iota of evidence worthy of belief which even tends to show that the defendant knew that the deceased was pregnant, that he ever threatened or had any ill-will or malice towards her, but on the other hand, . it tends to show that they were upon the best of terms; or that he ever bought or otherwise procured or had in his possession any carbolic acid; or that he was at the bridge on the night of the murder, or that he ever administered or even had an opportunity to administer the carbolic acid to the deceased which produced her death, or that he had any connection with it; and, in order to reach the conclusion arrived at by the jury, they must necessarily have indulged in the field of conjecture, which is entirely too visionary to justify the taking of human life or to deprive a man of his liberty. At most, the evidence adduced only raised a suspicion against the defendant, and under such circumstances no conviction of crime should be permitted to stand. In State v. Jones, 106 Mo. l. c. 313, it is said, “Mere suspicion, however strong, will not supply the place of evidence, when life or liberty is at stake. ’ ’ In the case of State v. Scott, 177 Mo. 665, a conviction was sought on circumstantial evidence, and Pox, J., in speaking for the court, said: “We have carefully analyzed all the testimony as presented by the State . . . and while it may be said that it is calculated to arouse a suspicion of guilt of this defendant, yet suspicion or even strong probabilities of guilt do not authorize a conviction. Giving every circumstance its full force, and leaving out of view any testimony offered by the defendant, it falls far short of furnishing that clear and convincing testimony upon which the citizen should be deprived of his liberty. The law should' be. universal in its application; it should be applied to the humble and exalted alike. This defendant may be guilty, but the facts, as disclosed by the record in this case, fail to show it. If there was any substantial evidence upon which to base this verdict, it would not be disturbed, but, in view of the insufficiency of the testimony to authorize this conviction, we must decline to sanction it. . . . Resting upon the testimony of the State alone, it created but a suspicion of defendant’s guilt, and, whether such suspicion was strong or doubtful, it did not authorize his conviction.’’

To the same effect is State v. Morney, 196 Mo. 43; State v. Crabtree, 170 Mo. 642.

Besides, the evidence tending to show an alibi was very persuasive at least, if not in fact established. We, however, agree with counsel for the State, that the facts disclosed by the record do not even suggest suicide, or the accidental falling of the large rock upon the body of the deceased. The rock could not have made the cut places upon her cheeks, but how they came there, and by whom the murder was committed, seems to be shrouded in mystery. These wounds and bruises were not however sufficient to cause the death of the child — and according to the evidence did not do so. So that the conviction must stand or fall upon the allegation with respect to the poisoning.

While the conduct of the defendant towards and the treatment of the little girl in debauching her, was of the most reprehensible character, yet, upon a trial for her murder he was entitled to be tried just as any other person charged with crime, according to the same forms of law and rules of evidence, among which is, that when a conviction for crime is sought upon circumstantial evidence it must always be scanned with great caution and can never justify a verdict of guilty, especially of murder in the first degree, the penalty of which is death, unless the circumstances in proof are of such a character and tendency as to produce upon a fair and unprejudiced mind a moral conviction of the guilt of the accused beyond all reasonable doubt, and to be absolutely inconsistent with his innocence.

Our conclusion is that there was no substantial evidence to authorize the verdict, and that the judgment should be reversed and the defendant discharged. It is so ordered.

All concur.