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
 
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Page 144

10 S.W. 144 (Mo. 1888)

98 Mo. 125

The State

v.

Wiley Mathews, Appellant

Supreme Court of Missouri

December 20, 1888

Appeal from Christian Circuit Court. -- Hon. W. D. Hubbard, Judge.

Affirmed.

Boyd & Delaney and Travers & Payne for appellant.

(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.

B. G. Boone, Attorney General, for the State.

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.

Brace, J. Ray, J., absent; Sherwood, J., dissents, and Barclay, J., not sitting.

OPINION

Page 145

[98 Mo. 127] Brace, J.

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,

Page 146

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...

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