10 S.W. 144 (Mo. 1888), State v. Matthews
|Citation:||10 S.W. 144, 98 Mo. 125|
|Opinion Judge:||Brace, J.|
|Party Name:||The State v. Wiley Mathews, Appellant|
|Attorney:||Boyd & Delaney and Travers & Payne for appellant. B. G. Boone, Attorney General, for the State.|
|Judge Panel:||Brace, J. Ray, J., absent; Sherwood, J., dissents, and Barclay, J., not sitting. Sherwood|
|Case Date:||December 20, 1888|
|Court:||Supreme Court of Missouri|
Appeal from Christian Circuit Court. -- Hon. W. D. Hubbard, Judge.
(1) The court erred in admitting evidence tending to show that after the killing, and some three hundred yards away from the scene, the defendant attempted to shoot and kill old man Greene. This was not a part of the res gestae, but was evidence of a distinct and independent crime, and was highly prejudical to defendant. State v. Rainsbarger, 31 N.W. 865; People v. Hamblin, 7 Crim. Law (Cal.) 846; Smith v. State, 17 Neb. 358; Smith v. Reavis, 70 Mo. 289; State v. Reavis, 71 Mo. 219; State v. Reed, 85 Mo. 195; State v. Turner, 76 Mo. 351; State v. Meyers, 82 Mo. 559; State v. Beaucleigh, 92 Mo. 490. (2) The court erred in admitting evidence tending to show that in November, preceding the killing, the deceased, William Edens, was taken out by a body of men and whipped, and that defendant was one of the number. See authorities, supra.
Evidence is always admissible, for the prosecution, of preparations made by a defendant, or defendants, to commit a crime. Whart. Cr. Ev., (9 Ed.) sec. 753; Bur. Cir. Ev., pp 343-365; Rex v. Hunt, 3 Barn. & Ald. 356; Campbell v. Comm., 84 Pa. St. 187, 196.
[98 Mo. 127]
The defendant Wiley Mathews, with William Walker, John Mathews and thirteen others, was indicted in the circuit court of Christian county for killing Charles Greene on the night of the eleventh of March, 1887. The defendant,
upon a separate trial, was convicted of murder in the first degree. William Walker and John Mathews were also, on separate trials, each convicted of murder in the first degree, and their cases brought by appeal to this court, and in each of them, at the present term, decisions have been rendered sustaining their conviction. Ante, pp. 95, 119. The record in this case is substantially the same as in those, and as all the points, except those hereinafter noted, were ruled adversely to the defendant in each of those cases, those only will be noticed that are peculiar to this case.
I. Charles Graves, a witness for the state, in delivering his testimony, after having testified that immediately after the shooting, defendant came out of Edens' house, where Greene was killed, to where he was, and that he went down the railroad with him, testified: "He (defendant) hollered to a man who was walking up the railroad in the direction of where the killing was done, about one hundred and seventy-five or one hundred and fifty yards of Edens' house, I would suppose.
Q. "What was said there?
A. "Some one hollered at this man who was walking up the railroad, and asked him where he was going. Some one in the lead hollered 'Stop that man, or else kill him,' and the defendant, Wiley Mathews, [98 Mo. 128] hollered at him and says, 'Where in the hell are you going?' and the man on the railroad answered, 'I am not going far.' And he says, 'You had better go, and that damn quick,' and just started and turned his gun right down off his shoulder, and Joe Inman caught the gun and said, 'You shan't shoot that man at all.' I had a conversation with him myself right along directly after that a few minutes. I don't suppose we had walked more than fifteen or twenty steps until he said he had got him a man that night to save his Uncle John; that he shot him in the back with a shot gun, and he shoved his hand up on his back something similar to that. He said it was William Edens."
George W. Greene, the man above spoken of, testified that he believed the man who ordered him to stop was the defendant, although he would not swear positively to it.
It is contended that the admission of this evidence was error for the reason that it tended to prove an independent crime, i. e., an attempt to shoot Greene. Conceding that it does, the question asked was unobjectionable. There was no objection made to the evidence contained in the answer and no exception taken to its admission, and no reason assigned for its exclusion. Under repeated rulings of this court, the error, if any, could avail the defendant nothing on appeal as was held in State v. Walker, ante, p. 95, to which could be added numerous others if necessary. The evidence, however, was admissible. The defendant and his companions were going directly from the scene of the homicide,...
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