State v. Glahn

• Decision Date: 18 March 1889
• Citation: 11 S.W. 260,97 Mo. 679
• Parties: STATE v. GLAHN.
• Court: Missouri Supreme Court

11 S.W. 260

97 Mo. 679

STATE v. GLAHN.

Supreme Court of Missouri.

March 18, 1889.

MURDER — EVIDENCE — THREATS — APPEAL.

1. On trial for murder, where the evidence was entirely circumstantial, the court refused to instruct that, though the jury might believe from the evidence "that defendant had made threats or declarations of intentions against deceased, * * * yet if, upon a full review and consideration of all the evidence in the cause, they shall conclude that there is no evidence connecting defendant with the assault and killing of deceased, other than such threats or declarations, then they will find defendant not guilty." Held, that the instructions should have been given.

2. An instruction that "evidence of casual statements or admissions by a party, made in casual conversation and to disinterested persons, are regarded by law as the weakest kind of evidence that can be produced, owing to the liability of the witnesses to misunderstand or forget," etc., is properly refused. It goes far beyond the ordinary cautionary instruction on the subject of such evidence.

3. Where the evidence indicates either murder in the first degree, of which defendant was convicted, or no crime at all, the giving of an instruction upon murder in the second degree is not reversible error.

4. A statement made by a witness in the presence of defendant, that he (the witness) thought "the man could be found in the field who committed the murder," was not such a statement as called for action or reply on the part of defendant, and was not admissible.

5. A witness may give evidence as to what defendant testified to on a former trial.

6. The rule, even in criminal cases, is that, before the court on appeal will relieve on the ground that the verdict is not sustained by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is that the verdict is the result of passion, prejudice, or partiality.

BARCLAY, J., dissenting.

Appeal from circuit court, Monroe county; THOMAS H. BACON, Judge.

Defendant, Joseph Glahn, appeals from a judgment of conviction of murder in the first degree.

Blair & Marchand, for appellant. Atty. Gen. Boone, R. P. Giles, and J. McD. Trimble, for respondent.

BLACK, J.

On the 16th October, 1886, the defendant and his brother were indicted in the Shelby circuit court for murder. The charge is that with pistols they shot and killed Joseph Hunolt on the 4th June, 1886. The state dismissed as to Christian P. Glahn, and the venue was changed to Monroe county. After one mistrial, and at the October term, 1887, the defendant was convicted of murder in the first degree. The evidence is entirely circumstantial, and defendant's counsel earnestly contended that it does not support the verdict. This objection necessitates a somewhat extended statement of the evidence.

The deceased was a judge of the county court, traded largely in stock, and often carried larger sums of money on his person than is usual for farmers to carry. The defendant was a farmer, and resided in the same neighborhood. About 1 o'clock in the afternoon of the 4th June, 1886, the deceased left his home on section 11, and went east to the east line of that section, to a public road; thence north two miles; and thence east one mile, to the town of Leonard. His home place could be reached by what is called the "East Road," which runs south two miles from Leonard, and thence west one mile by a lane. Defendant's land is within this territory of one by two miles. About the same time of day the defendant left his home, and went in a north-east direction across his farm, and thence by the public roads to the same place. Both were on horseback. At Leonard they and other persons met and talked about matters in general, as is usual on such occasions. No unfriendly feeling was manifested by either to the other while at Leonard. About 5 o'clock the defendant left for home, taking some small purchases, and returned by the same route that he went. Shortly thereafter the deceased left for home, but went by the east road, with a view of going to or passing by section 1, which he owned, and in which he kept his cattle. This section 1 is south of the south part of defendant's farm, and is separated therefrom by the lane before mentioned. Deceased went south from Leonard for one mile, to the cross-roads, where he was last seen alive. The evidence tends to show that from there he went south another mile, and thence west along the north side of section 1, along the lane. On the next day, between 9 and 10 o'clock, his body was found in section 1, in the brush and timber, at a point on a branch which is some 238 yards south of the lane. His horse was hitched to a bush which stood much nearer the lane. To the north and east of this bush there were indications in a patch of grass that the body had been dragged over it in a north-east direction, and at one place on this drag, as it is called, there were found foot tracks; one set appearing to have been made with a coarse, and the other with a fine, boot. The post mortem examination disclosed five wounds, from two shots. One shot entered the right side near the navel, and extended upwards through the left lung, and the bleeding was internal. When found there was a gash in the throat extending from ear to ear, but with little or no blood on the deceased's clothes, or on the ground at the place where the body was found. The inference is drawn that deceased had been carried from the drag to the place where found, and that his throat was cut at the latter place subsequent to his death.

For the state, a Mr. Robirds testified that he heard shooting and hallooing in the direction of section 1 at about 6 o'clock in the evening. He was then at work at a place not far from the defendant's house. He had been working for the defendant up to 10 o'clock in the forenoon of that day. He says when he heard the shooting and hallooing he went to defendant's house, and made inquiry about it of Mrs. Glahn, and then inquired for Mr. Glahn, and she said he was about the farm, perhaps at the granary. Robirds passed by the granary on his road to Mr. Gay's house, where he boarded, but did not see the defendant. That evening the defendant went to Mr. Gay's, and the witness gives the following account of what was said: "He came over there about dark. I asked him about the shooting; if he had heard it. He said, `Yes;' and turned to Mr. Gay, and addressing him, asked if he knew where there was a big elm tree down in my pasture. Mr. Gay told him he did. He said he was standing there watching a squirrel hole in that tree; that he wanted to kill some squirrels. He said he was sitting there at the time, and heard the shooting, and it seemed like it was to his back, to the southwest. He said he heard three or five shots. I do not know whether he gave any definite number or not. I think he heard the hallooing. Said he wanted to see if I could cultivate for him the next day, in the afternoon. I told him I could. He left it unsettled. He would see me next morning, is my recollection about it. He said he was going from there to Mr. Gartrell's." This evidence is corroborated by Gay and others. From there the defendant went to Gartrell's. Mrs. Gartrell testified that her husband was not at home, and the defendant asked her to tell him to bring some money over to his, defendant's, house early the next morning, as his wife was going to Shelbina, and he needed the money. It appears that Mr. Gartrell owed him $2.50, but Gartrell says he had before told the defendant that he could not pay it until the following Monday. Mrs. Glahn says her husband came in with his gun in a few moments after Robirds left; that he milked the cows, ate his supper, went to Gay's, came back, and went to bed, and did not leave the house again that night. Gus Glahn, a brother of the defendant, lived in Shelbina, but owned a farm in the same neighborhood, and upon which one Gosney resided. Gosney says that defendant came to his house about sunup on the morning of the 5th of June, and inquired for Gus, saying that he wanted to send a pig to Shelbina to be sent to his mother. Gus Glahn had been at his farm, but left on the 4th, without leaving word where he could be found. From there the defendant went to Ben Glahn's, another brother, and made like inquiries. Gus Glahn was not there, and the defendant took breakfast with his brother Ben. While there he said he had been to Gosney's, and that his wife wanted to go to Shelbina with Gus. The defendant then went back to his house, and between 9 and 10 o'clock he had a conversation with some three different persons on the road in front of his house, in which they spoke of the fact that Hunolt was missing. He then had his gun, and professed to be hunting squirrels. To these persons he related the circumstance that he was watching the squirrel trees on the previous evening when he heard the shots towards section 1. To some of them he stated that when he came home from Leonard he put his dog in the granary before he went for the squirrels, because the dog frightened them. These squirrel trees were three-quarters of a mile north of the place where Hunolt was found. The state put in other statements of the defendant of a like character, and also the evidence of two or three persons who testify that they heard defendant say, at the coroner's inquest on the 5th, that he was plowing corn when he heard the shots.

The theory of the state is that defendant came from Leonard, put away his horse, shut the dog up in the granary, and then went down to section 1, and there shot Hunolt, and that these statements were made to screen himself from detection. It may be stated here that it is clearly shown that these trees did have holes in them, such as squirrels frequent. There is no certain evidence that defendant was not at these squirrel trees. The defendant had been sick, and under the care of a...