State v. Poor

• Decision Date: 07 March 1921
• Docket Number: No. 22574.,22574.
• Citation: 228 S.W. 810,286 Mo. 644
• Parties: STATE v. POOR.
• Court: Missouri Supreme Court

228 S.W. 810

286 Mo. 644

STATE v. POOR.

No. 22574.

Supreme Court of Missouri, Division No. 2.

March 7, 1921.

Appeal from Circuit Court, Madison County; Peter H. Huck, Judge.

Edward Poor was convicted of murder in the second degree, and he appeals. Affirmed.

Joseph F. Chilton and C. P. Damron, both of Fredericktown, for appellant.

Frank W. McAllister, Atty. Gen., and C. P. Le Mire, Asst. Atty. Gen., for the State.

WALKER, J.

Edward Poor was charged with murder in the first degree by information, in the circuit court of Madison county, in February, 1920, in having killed one Cleveland King in October, 1919. Upon a trial he was convicted of murder in the second degree and his punishment assessed at ten years' imprisonment in the penitentiary. From this judgment he appeals.

Cleveland King, frequently designated in the record as "Cleve," had, with his wife, Nora, formerly lived in the immediate neighborhood of the defendant. Gossip as to an improper intimacy between the latter and Mrs. King bad occupied the ever-busy tongue of scandal for some time before the separation of King and his wife, which occurred in August, 1919. Upon this separation, provoked, as admitted by counsel for appellant, by the scandal, she went to reside with her mother and stepfather, who lived in the same neighborhood. On Saturday, October 25, 1919, she was in Fredericktown with her parents. As they went home that evening they met the defendant, who said he had heard that Cleve King had been telling some tales on him that he had to straighten up. The next day Cleve came to where his wife was staying. After a general conversation he and his wife went to the Trace creek church building in the vicinity (there being no services there at the time) to discuss their differences. A half an hour or more after their arrival there they agreed to a reconciliation and a renewal of their marital relations, when the defendant appeared, carrying a gun. He demanded that Cleve accompany him to Charley Hawkins', who lived about two miles away, to straighten up certain tales he said Cleve had been telling on him. The wife testified that her husband denied the charges and went reluctantly, that the last time she saw him he was going down the road with the defendant toward the home of Andy Hale in the direction of Charley Hawkins'. Soon after they left, two men, corresponding in size and general appearance with the defendant and Cleve King, were seen by Andy Hale about 100 yards or more distant going down the public road which ran in the direction of Charley Hawkins' place. Hale did not at the time observe them with particularity sufficient to identify them as King and the defendant, but did notice that one was a small man and the other a large one and that the latter carried a gun. It was shown that King was a small man while the defendant was a large one. It was a little later than 3 o'clock when defendant and King left the church. The latter has never been seen since that time. Andy Hale heard four gunshots that afternoon — three of them a short time after the men had passed his place, and the fourth about a half hour later. The location of the person firing the fourth shot seemed from the report to be a mile or more distant in the direction of Charley Poor's house, who was a brother of the defendant, and in which direction the two men were going when they passed Andy Hale's. The other shots were In the same general direction but a little further north and west. Nora King, upon her return to her stepfather's house a half an hour or less from the time the defendant and her husband left the church together, told the members of her family of the defendant's coming to the church and demanding that Cleve accompany him and of the latter's reluctant compliance. The unaccounted absence of King under the circumstances occasioned neighborhood comment, and on Monday evening the defendant and a 14 year old son of his came to the house of Green Stacy. The latter's wife, who was the grandmother of Nora King, told defendant what Nora had said, and asked him if he knew where Cleve was. Defendant said he did not; that he had not seen him since the Saturday preceding at Mill Creek that he (defendant) was not at the church on Sunday, and if Nora said so she was "fibbing." Green Stacy, his wife, defendant, and a 14 year old son of the latter then went up the creek to Andy Hawkins' where Nora :King was then staying. What occurred upon their arrival we give in the language of the record, Nora King testifying:

After stating that the defendant came to the church building where she and her husband were and that defendant demanded that :King accompany him and that they went away together,, she was asked: "When did you next ma Ed Poor, the defendant?" She answered, "On Monday night at `Uncle Andy Hawkins';" that he came there a little after dark with her Grandmother and Grandfather Stacy and defendant's boy. In reply to the inquiry an to what was said or done, she testified: "He (defendant) came in and sat down near the door; he appeared — his voice was very weak or something — he seemed like something was the matter with him a did not know what was the matter. Me came in and sat down close tins the door, and then he got up and stepped to the door and said, `Nora, I want to speak to you,' and we stepped out on the porch, and he says, `I want you to deny my being at the head of Trace creek.' I says, `What for?' He says: `What for? It will cause people to talk about us.' I says, `Ed, can't do it; I have told Mamma and Papa and Sister Grace you were there.' And he says, `If you have ever done anything in your life do it for me now.' And I says, `I can't do it.' Grandma called me then and says, `Nora!' I then called him into the kitchen, and. I says, `Ed, : want you to tell me where you left Cleve.' He says, `He is over yonder.' That's what he first told me about him. I says, `Is it possible you have killed him?' And he never said nothing. He never said he did nor he didn't."

In answer to the inquiry as to what defendant said, if anything, with reference to it being somebody else at the church on Trace creek on Sunday afternoon, she testified:

"Well, he says, `You tell it was Ed Smith. Instead of Ed Poor.' I told him couldn't do it."

"What was DOA', if anything, that you didn't tell?" "Well, I says, `Ed, Ma thinks you have killed Cleve; she is going to have a crowd hunt for him to-morrow.' He says: `They can hunt but they will never find him. He is gone and he will never come back.' I asked him where he had left Cleve, and he says, `He is over yonder,' and that's the last talk I ever had with him."

On Monday, October 27, 1919 at about midnight, the barn of Charley Poor, a brother of the defendant, was burned. On the Friday following the sheriff of the county, with a number of others who had been searching for Cleve King, found among the ashes of the barn what was identified as the remains of a human being. The body had been reduced to ashes except a part of the right hip and of the thigh. From the size of the bones and the length of the entire body, as outlined in the `ashes before being disturbed, the remains indicated that they were those of, a small man, an adult, say the experts. Remnants of clothing and what appeared to have been buttons, which crumbled upon being touched, and a metal belt buckle, were found in the ashes with the remains. This belt buckle was identified by a number of persons as having been similar in every respect to one worn by Cleve King the day of his disappearance.

A neighbor of defendant's named Berry, accompanied by a school teacher named Sample, went to defendant's house to confer with him in regard to a neighborhood school on the Sunday afternoon that Cleve King was last seen. They did not find the defendant at home, nor could they find him in the neighborhood until about 7 o'clock that evening, when, upon their return, they found him at his home.

Testimony on behalf of the defendant as to his meeting Nora King and her parents in Fredericktown, and, as to what was said, differs in no material particular from the testimony in that regard for the state. Testifying in his own behalf, he details his whereabouts from that time until Monday evening October 27, when he admits he saw Nora King at Andy Hawkins', but denies that he attempted to persuade her to contradict her former statement as to his coming to the church and leaving there with her husband; that, on the contrary, he remonstrated with her against the making of such a statement because, he says, it was not true. He states that on Monday night he was at home sick, and about midnight saw a light in the direction of his brother's, Charley Poor's, which was afterwards found to have been the latter's burning barn; that he apprised his father and boys of the fire, and they together looked at it for a time and then retired; that, in company with his two boys, he went to the scene of the fire .Tuesday morning; that it was still burning and there was considerable heat, and he could not approach nearer than 30 feet; that he saw no remains of a human being and did not look for any. His 14 year old boy and his father corroborated his statements as to his whereabouts during the afternoon of October 26, stating that at that time he was at home.

He is shown by several witnesses to have sustained a good reputation in the neighborhood prior to this charge, and he states that his relations with Cleve King were at all times friendly.

It was attempted to be shown that the shots heard by witnesses for the state were made by persons who stated that they had fired a gun two or three times that afternoon in the direction from which the reports came. The testimony of the defense in this behalf does not attempt to account for the last shot testified to by the state's witnesses. Testimony wholly irrelevant, in view of all the other facts in the case, was given as to certain threatening remarks which were...