State v. Woolard

• Citation: 111 Mo. 248,20 S.W. 27
• Parties: STATE v. WOOLARD.
• Decision Date: 01 July 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 27

111 Mo. 248

STATE v. WOOLARD.

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

CRIMINAL LAW — TRIAL — MISCONDUCT OF COUNSEL — INSTRUCTIONS.

1. It is error to allow one of the prosecuting attorneys to say to the jury in his argument that the other prosecuting attorney, when defendant's accomplice offered to turn state's evidence, made no promise to induce him to testify, and told him that all he wanted was the truth, where such matters have not been shown by the evidence.

2. It is error to instruct the jury that, when the defense of an alibi is relied on, it rests on defendant to establish such defense to the reasonable satisfaction of the jury.

3. Where an accomplice has testified for the state, it is error to refuse to instruct the jury that such testimony, "when not corroborated by the testimony of others not implicated in the crime as to matters material to the issue, ought to be received with great caution."

4. Where the evidence is principally circumstantial, it is error to refuse to instruct the jury that, "in order to convict the defendant upon circumstantial evidence alone, the circumstances tending to show his guilt should be established beyond a rational doubt by the evidence in the cause, and, when so established, should point so strongly to the guilt of the defendant as to exclude any other reasonable hypothesis than that of guilt."

Appeal from circuit court, Butler county; JOHN G. WEAR, Judge.

Indictment of David Woolard for murder. Defendant was convicted, and he appeals. Reversed.

Lentz & Standard, for appellant. The Attorney General, for the State.

GANTT, P. J.

The defendant was indicted at the May term, 1891, of the Butler county circuit court, for the murder of John Yarbrough. At the same term the same grand jury indicted one Alfred Brown for the identical offense. When the cause came to trial the state dismissed the indictment against Brown, and he testified against the defendant. The evidence tended to prove that John Yarbrough was a single man. He lived on a small farm by himself, in what was known as the "Hays' Settlement" in said county. He was reputed to have considerable money. He was shot twice. One bullet entered his back just above the hip and came out through the stomach; the other went in at the hip, and came out in the front of the leg. The evidence further tended to prove that Yarbrough was killed while plowing in his field. The defendant Woolard lived eight or nine miles from Yarbrough, and had lived there for eight or nine years. F. M. Maberry testified that he never heard defendant speak of Yarbrough's death except in a casual way, until one Bayliss was arrested on a charge of the murder. Defendant then said "he was afraid Brown would give it all away, and, if he did, it would break our necks;" that before Bayliss should be hurt be would have his own neck broken, because Bayliss was innocent. Defendant was generally short of money, but after Yarbrough's death he told Maberry he had $150. He said it was marked, and he was afraid to use it. It was not shown Yarbrough really had any money. The constable, Jonas, testified that after he had arrested defendant on this charge defendant said that before Bayliss should suffer he would have his own neck stretched; that Bayliss was an innocent man. He said Brown ought to have told it all. He wanted to make complaint against Brown. After the complaint was written he refused to sign it. He said he understood Brown had given the whole thing away; and, if he had, it would break their necks. Bates and Cato heard the statement. Matthew Wallace testified he had known defendant all his life. Never heard him say anything about Yarbrough's death since the killing. Before that, heard him say: "Two men could make some money by killing and robbing such men as Yarbrough, and then go out west." He disclosed this conversation to the state about one-half hour before he testified. John Brown testified they found Yarbrough dead on 16th May. Buried him on 17th. Alfred Brown, who had been indicted for the same offense, testified as follows: "I live in Ash Hill. Knew John Yarbrough. I know Dave Woolard. I saw Yarbrough when he was shot. Dave Woolard shot him; fired two shots. He had a rifle. Don't know the name of it. Can't tell the time of the day. It was one or two o'clock. Yarbrough was in the field, about a hundred and fifty yards from the fence, when shot. Woolard was on the outside when he fired. When the second shot was fired he fell. When we left home he said he was going to look for a red cow. He said nothing about killing of Yarbrough until he got close to the field then he said he was going to kill him. At first shot he kind of turned round, scringed down, and looked. At second shot he fell. After second shot, Woolard turned and walked off. He said if I ever told it he would do me the same way. Yarbrough's back was to Woolard when he shot. He was at his place plowing, going from us." Cross-examination: "I have been indicted for killing Yarbrough myself. I was in the Prosecuting Attorney Scott's office this morning. Mr. Scott said if I would swear against Woolard he would release me, and turn me out of jail. I have made other statements about the killing of Yarbrough. I told Sam Gardner that Woolard did not do it, but Horace Bates did. I also said that Bayliss killed him. I do not make this statement for my release. I told Lee Duncan that Bayliss killed the deceased, and that Woolard did not. Horace Bates did not tell me that if I would swear that Woolard did the killing, and that Bayliss did not, he would bail me out of jail. I...