State v. Howell

23 S.W. 263, 117 Mo. 307, 1893 Mo. LEXIS 347

• Court: Supreme Court of Missouri
• Decided: June 27, 1893
• Status: Published

Opinion

Sherwood, J.

— I. In discussing the various errors assigned for a reversal of the judgment in this cause, attention will first be turned to the application for a continuance heretofore set forth.

There is in this state a statute in which is formulated the statutory grounds for a continuance in criminal cases as follows:

“ Section 4181. Amotion to continue a cause on the part of the defendant on account of the absence of evidence must be supported by the oath or affidavit of the defendant or some reputable person in his behalf, showing the materiality of the evidence expected to he obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must give his name, and show where he resides or may be, and the probability of 'procuring his testimony, and within what time, and what facts he believes the witness will prove, and that he believes them to be true, and that he is unable to prove such facts by _ any other witness whose testimony, can be as readily procured, and that the witness is not absent by the connivance, procurement or consent of the defendant, and what diligence, if any, has been used in the premises by the defendant, and that the application is not made for vexation or delay merely, but to obtain substantial justice on the trial of the cause.”

Analyzing this section, it will be found that the requisites for such an application are: First. That it show the materiality of the evidence expected to be ■obtained. Second. That it show due diligence has been used by the defendant to procure such evidence, and in what that diligence consists. Third. Give the name of the witness, and show where he resides or may be. Fowrth. Show the probability of procuring his testimony and within what time. Fifth. State what facts applicant believes the witness will prove. Sixth. That applicant believes them to be true. Seventh. That he is unable to prove them by any other witness whose testimony can be as readily procured. Eighth. That the witness is not absent by the connivance, procurement or consent of defendant. Ninth. That the application is not made for vexation or delay, etc. Tenth. Lastly the application must be supported by the oath, etc.

There are no intendments of law in favor of such applications, and examining the present one it will readily appear that it lacks several of the essentials which the statute prescribes. The application does not comply with the first statutory ground; because it is well established that it is no ground for a continuance that there is an absent witness who can be used merely to impeach the chief witness of the adverse party. Whart. Crim. PL & Pr., sec. 592, and cases cited.

No showing of diligence is presented by the application, only a portion of which has been copied; but looking to the original, it is shown that what Williams and E. D. Larkins would testify to, was in relation to Owen McKinney’s, a witness who twice before had testified on behalf of the state, making contradictory statements, and was known to defendant “after the trial of this cause in May, 1891.” How long after this it was known does not appear, nor does it appear that, immediately on its becoming known, the proper steps were taken or the proper process issued to secure the attendance or the deposition of those witnesses; but, in any event, if due diligence had been used in this regard, still the testimony of the witnesses would only have tended to impeach McKinney, who was supported in his testimony as to recognizing defendant as he was running through the railroad yards, by Miller, Cullatin and Plopper, so that even if McKinney’s testimony had been overthrown, the result would have remained unaffected. And, besides, the testimony of the absent witnesses, mentioned was only to be used to impeach the testimony of McKinney, and, therefore, for the reason already given, furnished no ground for a continuance. The same line of remark applies to the testimony of E. D. Larkins.

As to the witness, Adams, it does not appear when defendant became apprised of the knowledge of Adams on the subject, nor what steps he took on that occasion. But the testimony, of Adams was wholly unimportant, as it was only of a very weak, negative character; it. simply went to show that he saw a man in the railroad yards that night of the murder whom he did not recognize as the defendant. This was certainly a very trivial ground on which to ask a continuance.

The present application was made with the view to postpone an approaching third trial. Nearly two years had then elapsed since the crime had been committed, and it would have required a far stronger showing than that made by defendant to have authorized a continuance; for such applications have no presumptions indulged in their favor, while every reasonable presumption is indulged in behalf of the action of the trial court when it refuses a continuance. State v. Whitton, 68 Mo. 91; State v. Ward, 74 Mo. 253, and cases cited; State v. Wilson, 85 Mo. 134; State v. Steen, 115 Mo. 474; State v. Gamble, 108 Mo. 500; Kelley on Criminal Law, sec. 321. No error, therefore, occurred in the trial court refusing to continue the cause.

II. Nextfor consideration is the point that the jury were' allowed to separate. The record discloses that while the jury in charge of the sheriff was passing along the street juror Renfro called to his sister, Mrs. Winters, who was on the opposite side of the street, and inquired as to his mother’s condition; that with the sheriff he walked partially across the street in full view of the other jurors, and in a tone of voice loud enough to be heard by them, talked to her (his sister) about the anticipated death of their mother. The rest of the jury and the officer in charge heard all this conversation. Renfro was all the time in charge of the sheriff ■and in full view of the officer and entire jury. This is .shown by the affidavits of sheriff Bain, juror Renfro, jurors Dent and Moe and Susan Winters.

We have hitherto ruled that section 4209, Revised Statutes 1889, respecting the non-separation of jurors* in capital cases must be strictly observed. State v. Murray, 91 Mo. 95; State v. Gray, 100 Mo. 523. In this case, however, the state has assumed the burden under the ruling in State v. Orrick, 106 Mo. 111, and affirmatively shown the facts aforesaid, which facts directly establish that no such separation has occurred, as would fall within the purview of our statute or former rulings. See, also, State v. Sansone, 116 Mo. 1.

III. The motion for anew trial alleges also that after the close of the evidence and against the objections of' defendant, one of the jurors was permitted to try on one of the overshoes which had been identified as that of defendant by Denbo, and by deputy sheriff Winters. But the record makes no mention of such an occurrence, and so nothing need be said on this point.

IV. In the motion for a new trial it is claimed that jurors Ford and Cunningham had prejudged the case, were prejudiced against defendant and were therefore incompetent to sit in the cause. These jurors, whose reputations for truth are established by numerous affidavits of residents of the county, deny this. There are, it is true, affidavits to the contrary; but when there are affidavits pro and con in a case of this sort, it would require a very strong case indeed which would induce this court to interfere and set aside the verdict on that account. Morgan v. Ross, 74 Mo. 318; State v. Cook, 84 Mo. 40; State v. Gonce, 87 Mo. 627.

V. The remarks of Mr. Bain, counsel for the state, in regard to the overshoes, were objected and excepted to at the time, but counsel for defendant at once withdrew his exception, so this left no exception standing. As to the subsequent remarks of the counsel, though excepted to, such exception was not preserved in the motion for a new trial, and consequently occupies a similar attitude to the exception which was withdrawn.

VI. It is insisted that error occurred in the admission of evidence showing that after the fifst conviction of defendant, he planned and endeavored to make his escape, and tried to induce others to assist him therein. Such evidence, tending as it does, to indicate a consciousness of guilt on the part of a prisoner, and therefore a strong motive for escaping, is always competent. State v. Moore, 101 Mo. 316; State v. Jackson, 95 Mo. 623; State v. Williams, 54 Mo. 170; State v. Mallon, 75 Mo. 355. And the rule of evidence applies as well to a person in jail after conviction, and while his cause is pending in an appellate court as before; no just distinction can be taken between the condition of a person thus circumstanced, and one upon whom no conviction has fallen or sentence been passed. It is too plain for argument that the same strong incentive would prompt endeavors to escape in tíie one case as in the other; indeed it may be said with great force of reason, more powerful motives would spur a defendant to make his escape after he has been solemnly adjudged guilty, than before that period.

VII. Contention is made that counsel for the state were allowed to cross-examine defendant in an unauthorized manner. His cross-examination as disclosed by the present record has been carefully read, and nothing is discovered therein which does not necessarily, or else legitimately, relate to the subject embraced in his examination in chief, and in thus ruling we adhere to the conclusions heretofore announced in State v. Avery, 113 Mo. 475.

VIII. Among numerous other grounds urged in the the motion for a new trial is that if one be granted, he will be able to show that “Grus Pratt” has a bad-reputation for truth. To impeach.the reputation of an adverse witness is no more a ground for a new trial than it would be if offered as a basis for a continuance. State v. Welsor, 21 S. W. Rep. 443, and cases cited.

IX. Now, as to the instructions: They have been set forth at large in the accompanying statement. The most of them given on behalf of the state are in' stereotyped forms, often approved by this court. No special objection is taken in the brief of defendant’s counsel to any of them except the fourth instruction ; but this instruction when read in connection with the eighth instruction, given at the instance of defendant, and the fifth instruction on the part of the state, placed the point involved fairly before the jury.

On request of defendant the court gave instructions numbered from 1 to 9 inclusive, heretofore set forth. Instructions numbered 10 and 11 were also given, but Were first modified, the modifications consisting of omitting certain portions of the original instructions, which omissions are indicated by brackets. These modifications were properly made. As to the tenth instruction, because as originally drawn, it endeavored to make it appear that there was a distinction between the state and the prosecution, and was calculated to indicate to the jury that the latter was being used oppressively against defendant; something which was highly erroneous and misleading. So as to the eleventh instruction as originally drawn; for there it is assumed that the charge against defendant was supported only by circumstantial evidence, when in truth and in fact there was abundant testimony, in addition to that of a circumstantial character, which strongly tended to support the charge contained in the indictment.

As to the instructions 12, 13, 14 and 16 asked for defendant, they were properly refused, either as misstating the law, or else as having been covered by those already given; and instructions 14 and 16 seem to have been purposely so drawn as to mislead the jury.

Relative to instructions 15 and 17, they were framed so as to prevent the viva voce testimony of Hollis Lawson from having any effect on the ground, as the seventeenth instruction in* effect states that it had been agreed by the state and defendant at a former trial that if he were present he would testify that defendant left Almroth’s store on the night of the nineteenth of January, 1889, at “about fifteen minutes past eight o’clock,” etc., when the oral testimony of Lawson, as heretofore stated, was that defendant left Almroth’s store about ten or fifteen minutes before eight o’clock, which statement is fully supported by Almroth himself. It would be a singular idea, indeed, if parties litigant by any temporary agreement made merely for convenience, could prevent a witness, if he subsequently comes into court, from telling the truth of the matter, and prevent the jury from regarding oral testimony, if it happens to be opposed, by some perfunctory and time-serving agreement that has long since performed its purpose. The instructions mentioned were,- therefore, properly refused; and so was the eighteenth in the nature of a demurrer to the evidence, for reasons already and presently to be given.

X. Of the corpus delicti is is needless to speak; the facts heretofore related establish the death of the little one beyond peradventure, and no one can read this very voluminous record on which the hand of the spoliator is still freshly and painfully visible, without being profoundly impressed with the confident belief and abiding conviction of the absolute justice of the verdict.

Within the compass of an opinion, only the salient features of the incriminatory circumstances can be given, but those circumstances, though barely outlined, disclose a series of most outrageous murders endeavored to be concealed by the torch-bearing hand of arson.

If Henry Smith is to be believed, and that was matter exclusively for the jury, defendant was the only person in that locality who had and owned a powerful motive which might- result in such a crime as here charged, as its legitimate outcome and natural sequel.

• Then we have not only motive prompting, but we have defendant saying “the damned thing has to he got rid of.’’ That this was done is shown by independent testimony that the crime of abortion had been perpetrated. 'This utterance of defendant in reference to the removal of the fruit of his crime by the commission of abortion, is what is commonly called “declarations of intention,” it being common for persons about to engage in crime' to make similar observations. Such declarations are of great moment when clearly connected by independent evidence with some subsequent criminal action, for the effect of such language is to render it less improbable that a person so speaking would commit the offense charged, and serves to explain the real motive and character of the action. BurrilPs Circumstantial Evidence, 338.

But, in addition to the foregoing, we have testimony showing that defendant was at the scene of the crime between three and four o’clock of the 'afternoon of the same day it was committed. He is next seen on ■his way to Brookfield, where, after remaining some hours, he is next seen about eight o’clock going south on the Main street of that town; then a few minutes afterward a mile and a quarter distant, still further south and on the road toward Mrs. Hall’s; then soon we have the blazing dwelling, the hurried assembling of the neighbors; the discovery of the freshly made tracks; the hot pursuit on the recent trail; the endeavors to elude the pursuers; the frequent recognitions' and final capture of defendant with travel stains fresh upon him; his clothing dripping from recent exposure and rapid flight through the snow, and then his unintentional and virtual admission of knowledge of the crime; all those concomitant circumstances unite in declaring defendant the perpetrator of a cluster of atrocious crimes which never before have found parallel in Missouri.

The judgment is affirmed, and we direct that the sentence of the law be carried into execution.

Gantt, P. J., concurs. Burgess, J., not sitting.