State v. Blackburn

• Decision Date: 16 February 1918
• Citation: 201 S.W. 96,273 Mo. 469
• Parties: THE STATE v. CHARLES BLACKBURN, Appellant
• Court: Missouri Supreme Court

201 S.W. 96

273 Mo. 469

THE STATE v. CHARLES BLACKBURN, Appellant

Supreme Court of Missouri, Second Division

February 16, 1918

Appeal from Camden Circuit Court. -- Hon. C. H. Skinker, Judge.

Reversed and remanded.

Frank H. Farris, Phil Donnelly, I. W. Mayfield and W. P. Mayfield for appellant.

(1) The admission of the testimony of witnesses Winfrey, Fry, Smith Evans and others, as to the statements of deceased made on the afternoon of November 9, 1915, and on other days prior to the morning of November 10th, at which time the deceased is supposed to have met his death, and at places from one to five miles distant from the scene of the killing, were wholly incompetent and prejudicial to the defendant, for such statements were not a part of the res gestae, were not dying declarations, were not made in the presence of the accused and all of them were hearsay. State v. Wilson, 250 Mo. 329; State v. Kelleher, 224 Mo. 167; State v. Church, 199 Mo. 634; State v. Brown, 181 Mo 216; State v. Terry, 172 Mo. 219; State v. Hendricks, 172 Mo. 673; State v. Locket, 168 Mo. 487; State v. Hudspeth, 159 Mo. 204; State v. Duestrow, 137 Mo. 321; State v. Thompson, 132 Mo. 321; State v. Punshon, 124 Mo. 457; State v. Nocton, 121 Mo. 552; State v. Raven, 115 Mo. 442; State v. Rider, 95 Mo. 486; Carroll v. Frank, 28 Mo.App. 70; State v. Walker, 78 Mo. 388; State v. Umfried, 76 Mo. 407; State v. Thomas, 68 Mo. 612; State v. Evans, 65 Mo. 578; State v. Brown, 64 Mo. 371; 12 Cyc. 429; Rex v. Thompson, Anno. Cases 1913 A, 530. (2) The admission of testimony as to alleged statements made by the defendant at the Coroner's inquest was error; he was summoned as a witness and sworn, put under the duress of an oath, was not represented by counsel, was suspected of the crime and not advised thereof, nor of his right to refuse to testify, was examined, cross-examined, browbeaten, threatened, treated with contempt and disrespect, surrounded by a mob, and statements made under such conditions are inadmissible against him. 21 Cyc. 994; State v. Thomas, 250 Mo. 211; State v. Thornton, 245 Mo. 440; State v. Marion, 235 Mo. 375; State v. Young, 119 Mo. 517; Ex parte Gauss, 233 Mo. 282. (3) The admission of testimony in rebuttal, or, for that matter, on direct examination, of the value of defendant's farm, was inadmissible for any purpose; the price, if any, to be paid by deceased was a matter of contract between him and the defendant, and deceased's idea of the value of the land and, in fact, the value of the land to the deceased, may have been far in excess of the value fixed by others or of what they honestly believed its value to be; and their opinion as to its value was an attempt to make their value the opinion of the deceased, and to create the impression that because deceased was paying a greater sum of money for the land than some of his neighbors thought it worth was evidence defendant killed him. Inadequacy of consideration is no ground for refusing the enforcement of a civil contract, either in law or equity, and standing alone is not evidence of fraud or undue influence. 9 Cyc. 367, 463; Brownlow v. Wollard, 66 Mo.App. 641; Chenowith v. Express Co., 93 Mo.App. 193; Scriba v. Neely, 130 Mo.App. 261. (4) The admission of testimony that the defendant did not hunt or assist in the search for deceased was also error. The defendant is not called upon to speak, nor the law does not require him to act until a charge is made to him and against him. State v. Gordon, 199 Mo. 592. (5) All of the testimony on part of the State, standing alone, is not sufficient to overcome the presumption of innocence and to establish defendant's guilt beyond a reasonable doubt, and the testimony as a whole is as consistent with the theory of innocence and more so than it is with any theory of defendant's guilt. It simply establishes two facts, that deceased was killed, when and by whom is a matter of conjecture, and that defendant and deceased had been and were shortly before the killing negotiating a lawful business transaction, and the State assumed and the jury took as true, that these two facts were sufficient upon which to convict the defendant and take from him his liberty for life. The verdict is not supported, the judgment is not just, and the cause should be reversed. State v. Gordon, 199 Mo. 593.

Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for the State; Sid C. Roach and L. C. Mayfield of counsel.

(1) The appellant having filed no brief in this case, we will follow the assignments of error, as set up in appellant's motion for a new trial and in arrest of judgment. The court did not err in overruling appellant's instruction in the nature of a demurrer to the evidence, offered at the close of the State's case. State v. Swain, 239 Mo. 728; State v. Wertz, 191 Mo. 578; State v. Stewart, 116 Mo.App. 330; State v. Warner, 74 Mo. 85; State v. Pollard, 174 Mo. 614. (2) The seventh assignment, that the verdict is not supported by any substantial evidence, is refuted by the record. State v. Scott, 214 Mo. 261; State v. Howell, 100 Mo. 659; State v. Maurer, 255 Mo. 168. (3) The statements of deceased to witnesses Winfry, Fry, Smith, Evans and others were properly admitted in evidence. State v. Thompson, 132 Mo. 322; State v. Thompson, 141 Mo. 416; State v. Kennedy, 207 Mo. 539; State v. Kennade, 121 Mo. 413; Gomaz v. State, 170 S.W. 713; Pound v. Georgia, 43 Ga. 129; State v. Pearce, 87 Kan. 463; Martin v. State, 77 Ala. 10; Spivey v. State, 169 S.W. 951; Hunter v. State, 40 N.J.L. 436; Merritt v. State, 45 S.W. 21; Keener v. State, 18 Ga. 224; State v. Vincent, 24 Ia. 573. (a) The general rule of res gestae. State v. Thompson, 132 Mo. 322; State v. Day, 100 Mo. 248. In the very nature of things the res gestae must vary as the fact of each case vary. State v. Thompson, 132 Mo. 322; Fowler v. Railway, 182 Ill.App. 132; Pound v. Georgia, 43 Ga. 130; Price v. State, 98 P. 452. (b) The subsidiary act need not transpire at the same instance with the main one, or always even on the same day; and, in reason, as well as in accordance with the current of the authorities, the time which divides the two is not the controlling consideration, though it may be taken into the account. Is it presumable that, distinctly and palpably, it influenced or was influenced by the main act, or proceeded from the same motive? If so, it is admissible, otherwise not. 2 Bishop's New Crim. Proc., sec. 1085; 1 Greenleaf on Evidence (16 Ed.), sec. 108; State v. Day, 100 Mo. 248; Davids v. People, 192 Ill. 189; Price v. State, 98 P. 447; State v. Kennade, 121 Mo. 413; 6 Ency. Ev. 614. (c) Any evidence that tends to show motive for killing the deceased is always relevant as rendering more probable the inference that he did kill him. Underhill, Crim. Ev. (2nd Ed.), sec. 323; State v. Miller, 156 Mo. 86; State v. Hyde, 234 Mo. 226; Smithson v. State, 137 S.W. 490; 1 Greenleaf's Ev. (Lewis Ed.), sec. 108. (4) Voluntary statements of the appellant, made when a witness at the coroner's inquest, are properly admitted in evidence. State v. Thomas, 250 Mo. 212; State v. Thornton, 245 Mo. 440; State v. Marion, 235 Mo. 375; State v. Young, 119 Mo. 516; State v. Wisdom, 119 Mo. 551; State v. Mullens, 101 Mo. 520; People v. Kelly, 47 Cal. 125. The contention that the verdict is insufficient to support the judgment is groundless. State v. Lawler, 220 Mo. 33; State v. Whitton, 68 Mo. 91; State v. Patterson, 116 Mo. 511; State v. Kattlemann, 35 Mo. 107; State v. Schmidt, 137 Mo. 270; State v. Van Wye, 136 Mo. 243.

ROY, C. White, C., concurs.

OPINION

ROY, C.

Defendant was charged by information with the murder in the first degree of Jasper Francis on November 10, 1915. He was convicted and his punishment fixed by the jury at life imprisonment. He has appealed.

The evidence for the State tends to show the following facts Both the deceased and defendant were farmers and stockmen, with farms on the same road leading out of Stoutland, the defendant's being about two and a half miles from town, and that of Francis being about four miles further on. The deceased was a bachelor about forty-six years old, in comfortable circumstances financially, a director in the bank at Stoutland. The defendant was about forty-three years old. His farm contained two hundred and sixty acres and was worth about $ 7500. His wife owned a house and about five acres of land in town, where they lived. He spent much of his time on the farm, often passing the night there. His farm was encumbered for $ 4000 and some interest. The home in town was encumbered for $ 2000, and he owed the bank about $ 3000 in notes signed by himself and wife. The bank was pressing him for a payment of at least a portion of that money About October 30, 1915, defendant and deceased made a trade by which deceased sold and delivered to defendant cattle for $ 1400, and received in part payment thereof a span of mules at $ 200. It seems that defendant did not then pay the balance of $ 1200 due of the cattle. Rolla Smith, assistant cashier of the bank, testified that in the latter part of the week preceding the death of Francis, the latter appeared in the bank, asked the amount of the defendant's indebtedness to the bank, and was informed that it was about $ 3000; whereupon Francis said: "Charley has sold his farm and has got the paper and you boys want to get your money. I know he has sold his farm because I wrote up the note for him and check a few days ago. The note is for $ 3000, and the check for $ 1500. He has sold his farm to Joe Givins, and is receiving this note and check for $ 1500, and he is assuming $ 3000 against the land, making $ 7500. Your note will be due the first thing, and you boys want to get in and get your...