Story v. State

68 Miss. 609

Opinion

Cooper, J.,

delivered the opinion of the court.

We find no error in the rulings of the court below in refusing to permit the appellant to make an application for a continuance when the venire was ordered, or in directing the writ of venire facias to the sheriff, when, upon the motion of appellant, the venire drawn from the jury-box was quashed, or in overruling the application for a continuance made by appellant on the day fixed' for his trial, or in the examination of the jurors upon their voir dire and im-panneling the jury by which he was tried and convicted.

When the defendant first asked the court to permit him to prepare his application for a continuance, it was properly refused, because it could not then be known whether his witnesses would or would not be present at the time fixed or about to be fixed for trial, and if they should be in attendance the ground of the application would fail, as it did fail; for on the day of trial every witness desired by the defendant appeared in court save one on whom process had not been served, and who was shown to have permanently removed to another state.

The venire drawn from the jury-box was, upon the motion of the defendant, quashed, and it then appeared that the jury-box had been exhausted. The defendant then moved the court to direct the clerk to make up a jury-box by depositing therein the names appearing on the jury list for the year. The court properly overruled this motion, for, in the absence of any evidence to the contrary (and none was offered by the defendant), it must be assumed that the officers discharged the duties imposed on them by law, and that the jury-box had been legally exhausted. In this condition of affairs nothing remained for the court except to secure the venire in the method adopted.

We find nothing in the rule announced by the presiding judge, for the examination of jurors, prejudicial to the defendant. That rule was that the judge would undertake the examination of jurors upon their voir dire touching their competency, permitting and inviting counsel to suggest any questions they desired to be asked but not permitting them to directly interrogate the jurors upon the subject of their competency, and after each juror had been found competent by the judge, he was then to be examined by counsel directly, with a view to peremptory challenge, but for no other purpose. The rule thus announced by the presiding judge is to be commended rather than reprehended, for its operation is to prevent an unnecessary consumption of the time of the court, assures full and impartial examination of jurors, and violates no right of one charged with crime. Under its operation an impartial jury, against no member of which is objection taken, was secured to the accused, without his having exhausted the peremptory challenges allowed him by law.

On the trial of the cause it appeared that Barney Kleinfelder, the deceased, by an arrangement between himself and Dr. Munt-ford Jones had erected a saw-mill on the plantation of the latter, which was operated by Kleinfelder who received three-fourths of the lumber cut from the timber on Jones’, place, Jones receiving the remaining fourth, and that for some months before the homicide there had been a disagreement between Jones and Kleinfelder in reference to their business.

Austin Williams, the principal witness for the state, and the only eye-witness to the killing, gives the following history of what preceded, and the circumstances attending the killing: On or about the first of November, 1889, the defendant, Story, and Muntford Jones, Jr., a son of the owner of the plantation, appeared on the place, each armed with a new Winchester rifle, and a pistol. They took their meals at the house of this witness (a negro), and, there being no vacant house on the place, slept at night in his cotton house. Story had a pair of saddle-bags, the contents of which were one undershirt, one pair of drawers and some Winchester cartridges. Story and Jones arrived at the house of witness in the afternoon, and. Story some time thereafter suggested that they should go to the mill. Jones replied that he was too tired and preferred to wait until morning. The next day they met at the mill, and, after their return, witness heard a conversation between them in which Story said, “They are fine fellows.” Jones replied, “Yes, but I want a settlement.” • Story then said, “ If you cannot get á settlement, let us do what we., came here to do.” Jones replied, “No: we came from Kosciusko, through Durant, Lexington and Tchula with our guns, and it will not do to have trouble so soon.” Story then suggested, “ We will get him off to himself some day and lose him. I came here to get those fellows off the place, and will do it if I have to kill every one of them.”

On another occasion at the house of the witness, Story, Jones and Kleinfelder were all present as were several other persons. • It was night, and when no one was looking at them, Story and Jones “ winked and batted their eyes at each other and at witness, and made signs to him,” which he interpreted as meaning that he should get the others out of the house, so they might kill Klein-felder. Story then went and called the two negroes who had his pistols and got the pistols. The witness then took Jones aside and told him not to kill Kleinfelder in or about his (witness’) house, as it would involve witness. Jones then had a whispering conversation with Story and returned and told witness “ it was all right.” Story got up and stood with his back to the fire, and witness then called him aside and said to him that he did not want any murder at his house. When Kleinfelder was about to leave the house Story said to him, “ Go out this way,” directing him to the door which led through the cotton field. Kleinfelder said, “No, he would go the other way.” Then Story insisted upon his going through the field. Story and Kleinfelder then went out together and walked off some distance in the dark. Witness then told Jones not to let any murder be done, and he replied that there would not be, and called Story, who returned, and he and Jones stood out-doors and talked awhile, but witness did not hear the conversation.

The circumstances of the homicide, which was on Nov. 14th, as given in the language of this witness are as follows :—

“On the day of the killing of Kleinfelder I went across the bayou to John Parrot’s to weigh some cotton and found no one there. I came on back late in the evening and passed by where Story was looking for a squirrel; stopped and asked him what he was doing. He said he was after a squirrel and asked me to shake a bush so as to turn it for him, I did so, and saw a hole in the tree that a squirrel could go into and told Story of it, and that I did not have time to fool there. I then left him, and came up the road and met Kleinfelder about a hundred yards from where Story was. I stopped and told him I wanted to get some lumber, and gave him the size of’ the house and asked him to make out the bill. While we were talking Story came up, holding his gun through his arms on inside of his elbows behind and across his back, and stood near Kleinfelder, with the muzzle of the gun pointing towards his right side. Story threw or moved himself by motion of his body to and fro and changed his right hand to the trigger and lock of the gun; all at once the gun went off, Kleinfelder said, ‘Oh, Christ,’ and leaned forward; then Story handled his gun. Kleinfelder said ‘Don’t shoot me,’ and threw his arms across his chest or front of his body; Story then threw the butt of his gun to his shoulder and fired another shot, and Kleinfelder fell to the ground ; Story then shot him again. Story then told me to go up and feel in Klein-felder’s pocket and see if he had a knife; I refused to do it, and Story- levelled his gun on me and said he had killed two men where he came from, that Dr. Jones would bond him and get him out of it, and told me if I did not do it he would shoot me. I then went up to Kleinfelder and felt in his pocket and felt the knife, but I told Mr. Story I did not find a knife. We then went up towards my house, and met Mr. Jones about thirty yards from the place of killing. Jones said, ‘ What is the matter ?’ Story said, ‘ I have killed Barney Kleinfelder down the road.’ Jones asked if he was dead; Story replied, ‘Yes, dead as hell.’ Jones asked, ‘Did you find a knife or any weapon on him ?’ Story replied, ‘ No.’ Jones said, ‘ He had a knife, I saw it about a half hour ago.’ We all three then went to the body, Jones took Kleinfelder’s knife from his left hand pocket and opened and placed it by his side; he then took Story’s knife and cut Story’s coat; Story said, ‘ Take care, fellow, don’t cut my coat too much; this is all the coat I have.’ Story and Jones then talked the matter over and agreed what we were all to swear to about the killing. Story told me that if I did not swear to what he had agreed on he would kill me wherever he found me, and that Dr. Jones would back him up in it; and if my evidence sent him to prison, he would kill me whenever he got out, it made no difference how long. What was agreed on I stuck to until I heard Story was in jail. I was afraid to do otherwise.

“We then went back to my house, Story then said to Jones, ‘I have done what I agreed to and I want my pay.’

“ Jones said, ‘ I will telegraph to my father and he will go on your bond.’

“ At the time Kleinfelder was killed he had a bottle of coal oil in his right hand and a stick in his left, with a sack across the stick and a ham in each side of the sack. He appeared astonished at the first shot; not a thing indicated that Story intended to shoot. He had no knife in his hand at the time, and not an unkind word had been said. After the second shot he fell on his right side, and was shot the third time while in that position.”

The witness also stated, that on one occasion Story said to Jones that they could kill Barney and Jake Kleinfelder, but it would be a pity to kill the young lad [a younger brother of deceased who was also at the ■ mill], that when the others should be killed he would leave the place anyway; that on one occasion Jones and Story got up a wild hog hunt and invited Kleinfelder to go on it, who agreed to go but did not do so; that afterwards in a conversation between Jones and Story, they said Kleinfelder had saved his life by not going. The witness further said that he was the manager for Dr. Jones on his place, and that Story said to him that in any controversy between the landlord and outsiders the tenant should be on the side of the landlord.

This witness on cross-examination admitted that on the examination before the coroner’s inquest ho had testified that when Story came up to where witness and Kleinfelder were talking about the lumber, he requested Kleinfelder to keep, an accurate account of all lumber sawed by him on the partnership mill; that Kleinfelder inquired in an angry manner, “What in the hell have you got to do with it anyway ?” That Story said, “ It is a part of the business for which I was sent herethat Kleinfelder then said, “ I will kick hell out of you, and will settle this matter with you right now,” and lunged at Story with his knife, cutting him on the breast of his coat, and that Story then shot and killed him. He also admitted that after his arrest and while in jail, he had made similar statements to several persons, but explained that this was because of his fear of Story.

The state proved by a brother of the deceased that a short time before the killing young Jones had attempted to have a settlement of the partnership affairs between his father and the deceased, but failed to agree, and that while the discussion between Jones and the deceased was in progress, Story sat near by with his rifle across his lap. It also proved by this witness that immediately after the killing he went to the body of his brother and found it lying on the back with the sack of hams under it, a bottle of coal oil clenched in the right hand, the right pocket partly turned out and the knife lying near the left, side in the blood ; that there were three wounds on the body made by balls from the rifle, one entering above the left hip, traversing the body and coming out on the right side of the neck, one entering in front and passing out at the back a little above the point of entrance, and the third entering beneath the left ear and cutting the hat band on the right side at its exit.

The state, over the objection of the defendant, was permitted to show in evidence the following facts : By the brother of the deceased, that there was a pending law-suit between Hr. Jones, the owner of the plantation, and the deceased. By the witness Austin Williams, that he had gone to Kosciusko several times during the year to see Hr. Jones, who was very bitter against Kleinfelder, and got witness to appear before the grand jury as a witness against him, whereby several indictments were secured' against him, by reason of which Kleinfelder was unfriendly toward wdtness, which defendant knew, and he knew that witness wanted to get Kleinfelder off the place. By witness Neal, that in February preceding the homicide he had a conversation witb Dr. Jones in reference to the trouble between Dr. Jones and the deceased, in which conversation Jones said that “ Kleinfelder had sent him (Jones) word that he was going to make catfish bait out of him, and he never talked to Kleinfelder without having his hand on his pistol; that he was going to get rid of him, a blue-bellied son of a bitch, and would kill him if he were to make a motion against him.” By witness Millsaps, that he was the manager of the store on the Marcella plantation of Mr. Richardson, which is about two and a half miles from Dr. Jones’ place; that in the spring preceding the homicide he had a conversation with Dr. Jones, in which he stated that he desired to- get rid of deceased and would force him off his place. And by this witness it was proved that the following letter had been written to him by Jones, whose handwriting he recognized, which letter was also admitted in evidence, over the defendant’s objection:—

“Kosciusko, Miss., May 30, 1889.

“ E. F. Millsaps :

“ Dear Sir — I hear that Kleinfelder is selling all my lumber to Gen. Miles, and to Marcella, too; is it true ? Please inform me by return mail how many Winchesters are on Marcella, and how many boys can I rely upon, and who are they ? What became of those deer dogs that Mr. Alford had on Marcella?

“Your friend truly, M. Jokes.”

Also, over like objection, the following letter written by Dr. Jones to the deceased :—

“ Kosciusko, Miss., June .6, 1889.

“ B. P. KleiNeelder :

“ Dear Sir — I wrote you two weeks ago for statement of lumber sawed at my mill up to date. I heard nothing from you. Again 1 ask you for the amount of lumber sawed at my mill, and notify yon to saw no more, to shut my mill down from this day on. We saw no more on shares; our agreement is at an end. A settlement is required, and you to remove from my plantation.

“M. JONES.”

Objection was made to one other piece of evidence, which will be hereafter noticed.

Objection was taken to all the evidence above noted on the ground that the declarations of Jones therein referred to were not made in the presence of the defendant; that they were remote in time and irrelevant in character; that if introduced by the state under the theory that a conspiracy was formed between the defendant and Jones for the murder of IOeinfelder, they were made long before any supposed conspiracy had been formed, and were not acts done or declarations made in the prosecution of the common purpose.

It is unnecessary to consider the evidence in the light in which it is supposed by appellant’s counsel to have been introduced. There is another view, and the one we infer held by the court below, in which its competency, resting upon a totally different principle than that which applies where the act of one co-conspirator is sought to be used in evidence against another, is apparent.

The act of one co-conspirator is admissible against the other because, in contemplation of law, the act of each is the act of all. Its competency as evidence rests upon the same principle that underlies the relation of principal and agent in legitimate affairs, and is subject to the same limitations that are there applied. It is for the same reason that the act of an agent in civil affairs beyond the scope of his agency, and the act of a co-conspirator not done in the prosecution of the common purpose, is incompetent to bind, and therefore incompetent as evidence against the principal in the one case, or the conspirator on trial, in the other. That reason is, that the act is not that of the person against whom it is invoked, done through the hand of another, but is the independent, unrelated act of the person by whom it is done.

Where a conspiracy is formed to do an act, all are bound by the act of each in the prosecution of the common purpose, for the object of the conspiracy calls it into existence, and he who seeks to accomplish that object acts, not only for himself, but for all others who by joining with him aid, encourage and authorize the act he does. 4 Am. & Eng. Ency. of Law, § 621, note 5.

But a person actually committing a crime is none the less responsible for it whether he acts for himself alone or for himself and others. Upon the trial of the actual perpetrator of an offense, it is not necessary for the state to show by direct evidence the motive which impelled him to commit it.

A malicious killing of.itself implies some unlawful motive, and the state need not establish what that is by specific proof. But it does not follow that because it need not, therefore it may not make such proof. It cannot be said that the motive with which an act is done is irrelevant to explain its character or to strengthen the probability that the person shown to have committed it was impelled by such motive rather than some other. Mr. Stephen in his admirable digest on the law of evidence thus formulates the rule : “ Where there is a question whether any act was done by any person, the following facts are deemed to be relevant, that is to say, any fact which supplies a motive for such an act, or which constitutes preparation for it; any subsequent conduct of such person apparently influenced by the doing of the act, and any act done in consequence of it or by the authority of that person.”

In treating the subject under inquiry, Mr. Roscoe says-: “ But there are cases in which much greater latitude is permitted, and evidence is allowed to be given of the prisoner’s- conduct on other occasions where it has no other connection with the charge under inquiry than that it tends to throw light on what were his- motives and intention in doing the act complained of. This cannot be done merely with the view of inducing the jury to believe that because the prisoner has committed a crime on one occasion, he is likely to have committed a similar offense on another, but only by way of anticipation of an obvious defense.” 1 Ros. Cr. Ev. 140.

In Rex v. Clewes, 4 C. & P. (19 Eng. Com. Law, 485) upon an indictment for murder of one Hemmings-, it was opened' that great enmity existed between Parker, the rector of a parish, and his parishioners, and that the prisoner had used expressions of enmity against the rector, and said that he would give £50 to have him shot; that the rector was shot by Hemmings, and that the prisoner and others who had employed him, fearing that they should be discovered, had themselves murdered Hemmings. Evidence of the malice of the prisoner was given without objection, and it was then proposed to show that Hemmings was the person by whom the rector was murdered. This was objected to, but Littledale, J., decided that it was admissible.

In Hunter v. The State, 43 Ga. 483, it was held competent, as tending to show motive on the part of the accused, to prove that he was the rejected and the deceased the accepted suitor of a particular lady, and that rumors of an -approaching marriage between the lady and the deceased were brought to the knowledge of the accused. The court there said : “ In the administration of the criminal law, any fact shedding light upon the motives of the transaction will not be excluded from the consideration of the jury, whether it goes to the attestation of innocence or points to the perpetrator of the crime.” For a like purpose it has been held competent to show that the defendant and deceased both sustained a relation of illicit intercourse with the same woman. State v. Larkin, 11 Nev. 316 ; that the prisoner was in the habit of having illicit intercourse with the wife of the deceased. People v. Stout, 4 Park. Cr. Cases, 71; that the step-children of the accused, with one of whom he had illicit intercourse, had left his house and gone to that of the deceased, who refused to give them up. Fraser v. The State, 55 Ga. 326; that the deceased had a few days before killed a near relative of the prisoner. Kelose v. The State, 47 Ala. 573; and in People v. Hendrickson, 1 Park. Cr. R. 406, and State v. Green, 35 Conn. 203, in which cases the prisoners were charged with uxorcide, it was held competent to anticipate the presumption of conjugal affection and show, in the one case, that the prisoner was not in truth the husband of his supposed wife, because he had a living wife at the time of his marriage to the deceased, and, in the other, that by the will of the wife’s father the prisoner had been disappointed in his expectations of pecuniary gain in becoming connected with the family. In many of these cases the expression is used that even where such' evidence is inconclusive and of but slight value, it is proper to submit it to the jury under admonition, not to assume the crime from the mere motive.

It would be difficult to imagine a case in wbicb sucb evidence should be admitted if it was incompetent under the facts of the present one. If the testimony of the state’s witness was believed by the jury, the defendant, by his own declarations, had connected the malice of Dr. Jones towards the deceased and his desire to have him di’iven from his plantation, with the killing, as the motive by which he was impelled.

It appears as an uncontroverted fact that the appellant had never seen or heard of Kleinfelder until the day before he with young Jones appeared on the farm. Naturally the accused would have insisted before the jury that a killing so barbarous and horrid as that testified to by the state’s witness could not occur without some motive potent enough to impel the act, and that he, a confessed stranger to the deceased and his affairs, without hatred or ill-will of any kind against him, and without occasion for desiring to injure him, could not, in the nature of humanity, have done the deed as detailed by the witness.

In anticipation of this defense, the state laid the fountain of malevolence a step beyond, and attempted to show that the hatred towards deceased resided in another, and that the prisoner murdered him because of the procurement of that other. The fact of the killing stands confessed; its details are alone in controversy. According to the state’s witness, the killing was of unparalleled barbarity, so exceptional in character as to stagger credulity, but for the fact that the wounds on the body and the incumbered hands of the dead man, lend potent corroboration to his story. The defendant claimed that he was the party assailed, and that he killed the deceased in necessary self-defense. Under these circumstances, it was especially important that the state should, if possible, establish the motive of the crime. ' Looking to the whole evidence, that for the state and the defense, it is not difficult to trace the crime from its inception to its consummation. On the 30th of October, according to defendant’s own testimony, he was employed by Dr. Jones to go to the plantation to guard convicts who were to be secured in the following January. Young Jones and the appellant, armed with two Winchester rifles and pistols, with one change of underclothing for the two, and fully supplied with cartridges, left Kosciusko for the plantation ■ the next day. In two weeks’ time Jones was rid of the man whose presence on his plantation annoyed him, and the appellant stood before the jury explaining how the deceased, with a bottle of coal oil in one hand and two hams and a knife in the other, made a sudden and violent assault upon him, who was then armed with a Winchester rifle, and how, in defense of his life, he slew him.

Under the facts of this case, if the evidence admitted to show motive were as clearly incompetent as under the law it is competent, we should still hesitate to disturb a verdict otherwise so abundantly supported.

It remains to notice but a single other exception. After the homicide, according to the testimony of Williams, young Jones promised the accused to send a telegram to his father to procure him to become surety upon appellant’s bond to appear and answer for the killing. When upon the stand as a witness for the defendant, Jones was asked if he had sent the telegram, and without objection by the defendant, replied that he had. He was then asked to state its contents, whereupon the defendant objected on the grounds, first, that the telegram was the best evidence of its contents, and second, that it was incompetent in any event against defendant. The court seems not to have ruled upon the whole objection. The bill of exceptions states that the judge ruled that the witness could not be required to answer until the telegram should be first shown him. Whereupon the witness, without waiting for the court to direct him to auswer, replied, giving the contents of the telegram' as follows: “ Eugene killed Barney, justifiable — will be home on to-morrow’s A. M. train.”

We are not prepared to say that this evidence should have been •admitted, but since no objection was made to the evidence of the fact that the telegram was sent, we find nothing in its contents as proved tending to the injury of the defendant.

The judgment is affirmed.