State v. Miller
| Citation | 13 S.W. 832,100 Mo. 606 |
| Parties | The State v. Miller, Appellant |
| Decision Date | 02 June 1890 |
| Court | United States State Supreme Court of Missouri |
Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.
Reversed and remanded.
W. O Forrist and W. A. Edmonston for appellant.
(1) It was error to overrule appellant's objection to the competency of Mrs. Mortimer as a witness for the state. She was the wife of Mortimer, who was, in law, a co-defendant and charged with the same homicide. They were not indicted jointly, but the law required them to be. R. S. 1879, sec 1811. The state could take no advantage of its own wrong. Neither, under our statute or the common law, is a defendant, while a party to the record and his case undisposed of, nor his wife, a competent witness for the state against his co-defendant. Whart. Crim. Ev. [9 Ed.] sec. 445, and authorities cited; R. S. 1879, secs. 1917 and 1918. (2) It was also error to allow Mrs. Mortimer to testify to a fragment of a conversation she overheard between her husband and appellant, against his objection, as well, as not to strike the same out of the record, as requested. There is no rule of law better established than that an entire conversation, or none of it, can go in evidence to charge a party with a crime. This is shown by State v. Branstetter, 65 Mo. 145, and the authorities there cited. (3) It was error to sustain the state's objection to appellant's inquiry of Mortimer if he had not been in the penitentiary two or three times, and not allowing it to be answered. The inquiry was not whether he had been sentenced to the penitentiary, or had been convicted of a felony, but simply was whether he had been in one. This could not be shown by any record. Appellant was entitled to the answer. (4) There was no corroboration of the evidence of Mortimer in any material matter, and, yet, without his evidence, appellant could not be convicted. The "matters material to the issues," in the sixth instruction for the state should have been defined. State v. Chyo Chiagk, 92 Mo. 395; State v. Conway, 21 S.E. 285; State v. Suryear, 2 S.W. 929.
John M. Wood, Attorney General, F. R. Jesse, Prosecuting Attorney, and George Robertson for the State.
(1) At the time Mattie Mortimer, the wife of George Mortimer, was called as a witness the indictment was standing against Mortimer and he had pleaded not guilty to it, but afterwards, and during the progress of the trial, this plea was withdrawn by Mortimer and he entered a plea of guilty of murder in the second degree. Mortimer was not a co-defendant and he was competent as a witness against Miller (Bishop Crim. Proc., sec. 1167; State v. Walker, 98 Mo. 95), and as a matter of course his wife was competent. Whart. Crim. Ev. [8 Ed.] sec. 391. Even if the conversation testified to were a part of a conversation, the rest of which witness did not hear, it would be admissible. She said that was all she heard. Whart. Crim. Ev. [9 Ed.] sec. 688, and authorities there cited. (2) Defendant complains that he was not allowed to ask the witness, Mortimer, if he had not been in the penitentiary, the only purpose of which was to discredit the witness' testimony, by showing that he had been convicted of a felony. This should have been shown by the record, and the court committed no error. (3) Defendant complains of instruction numbered 6, in relation to the testimony of an accomplice. It is in the language of the instruction approved in State v. Jones, 64 Mo. 391, and followed in State v. Reavis, 78 Mo. 419, and cited with approval in State v. Walker, 98 Mo. 109. But, upon an examination of the whole evidence in this case, the defendant, without the evidence of the accomplice, Mortimer, is abundantly proven guilty of the murder. Hence, were this instruction insufficient, no error prejudicial to the defendant has been committed. State v. Pratt, 98 Mo. 482.
OPINION
-- The defendant was indicted at the January term, 1889, of the circuit court of Audrain county for murder in the first degree, for shooting and killing one Samuel Apgar, in said county on the seventeenth day of April, 1888.
The indictment contained four counts. The first count charged murder in the first degree, by shooting and killing with a pistol, in the usual, formal and general manner; the second and third counts charged murder in the first degree, committed in the attempt to perpetrate a burglary; and the fourth count charged George Mortimer with the commission of the offense in perpetrating a burglary, and defendant as being an accessory after the fact. He waived formal arraignment and pleaded not guilty, and at the June term, 1889, of said court, was tried and found guilty; the jury returning a verdict of guilty of murder in the first degree. Thereupon he filed his motion for a new trial, which was continued until July, when it was overruled and defendant sentenced, from which he appealed to this court. At the close of the evidence on the part of the state, the state entered a nolle as to the fourth count of the indictment, and this was done over the objection of the defendant.
At the time defendant was indicted, George Mortimer was also separately indicted for the same offense. Apgar was an old man about sixty-five years old, and lived with his wife in a house that fronts south, and on the same street, about six blocks west of the house which had been for a few weeks occupied by both Miller and Mortimer, with their wives. Miller and Mortimer, before moving to this place, occupied a house together in a different part of the town, and Miller conducted a sort of barber shop in both of these houses. Apgar's house consisted of four rooms and a summer kitchen, which was connected with the north west room of the main house by a platform. This northwest room had a door in the west through which one passed onto the platform, which was three or four feet wide, and on into the east door of the summer kitchen. A door was between this northwest room and the southwest rooms of the house; and, on the night of the murder, Apgar had gone to bed with his wife in the southwest room. A day or two before the murder the summer kitchen had been brought into use, and at night, when Mrs. Apgar retired, the summer kitchen door was fastened and the drawers in the safe were in their places. Just immediately after the murder the doors of the northwest room and the summer kitchen were open, and the drawers of the safe in the kitchen pulled out and things in it disarranged, besides other things in the kitchen were removed and disarranged.
About two o'clock in the night Mrs. Apgar heard a pistol shot in the north room and a door slam. Immediately her husband returned into the room and said: "I am shot." Presumably he had heard a noise and gone out to ascertain what it was, and in doing so met with the burglar, who shot him. Apgar was shot with a number twenty-two pistol, and a pistol of that size was found partly burned in Miller's stove, and cartridges, of the same kind and size as those which would fit the pistol found in Mortimer's possession, on his person; and the pistol was proven and admitted to be his and the ball taken from Apgar's body exactly fitted the empty cartridges found in Mortimer's pistol. Three or four cartridges of the same kind were found in a box on Miller's work bench in the northwest room of the house in which he and his wife stayed; though that room was the common passway to the kitchen, Miller and his wife and child had a bed in the northwest room, and Mortimer, wife and child the southeast corner room, and both families lived in common; the respective heads of each alternating in furnishing provisions. The trial resulted in Miller being found guilty of murder in the first degree, hence his appeal.
Miller and Mortimer lived together in a house with four rooms in it. It fronted east and had one east front door. Passing in that door, you come into the northeast room; from that room you pass into a room directly south, with no outside door; also from that northeast room you pass into a room just west, and from that room into a kitchen south, being the southwest room of the house, which room had a door leading west onto the outside. These rooms were all used in common by both Mortimer and Miller. There were no outside doors to this house but the one in the east and the one leading from the kitchen in the west. Apgar was an ex-Federal soldier and drew a pension, and this fact was known to Miller, who had spoken of it and had expressed ill-will against Apgar. The wife of Mortimer was introduced as a witness on the part of the state, as was also Mortimer himself.
The testimony introduced was substantially as follows:
Mrs Apgar, the wife of the deceased, testified: "I live now in St. Louis; before I went to St. Louis I lived in West Mexico; I have lived there seven or eight years; my husband's name was Samuel Apgar; the house we lived in had three rooms, sixteen feet square, and one about twelve feet; it was on the north side and stood back from the street about twelve feet, maybe a little further; my husband's death occurred on the seventeenth day of April, 1888, in Audrain county, Missouri; the first to attract my attention was a pistol shot; I was in the west sitting room; there was a dining room north of that; it was a very small room; there was a passage from the room I was in to the dining room; my husband and I were sleeping that night in the west room, south of this dining room; the bed was in the west corner of the room, the head extending west; it stood against the wall next to the dining room; there was a small kitchen located about four feet from the dining room; there was a door which...
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