23 S.W. 263 (Mo. 1893), The State v. Howell

Citation:23 S.W. 263, 117 Mo. 307
Opinion Judge:Sherwood, J.
Party Name:The State v. Howell, Appellant
Attorney:A. W. Mullins and Harber & Knight, for appellant. R. F. Walker, Attorney General, and Morton Jourdan, assistant, for the state.
Judge Panel:Sherwood, J. Gantt, P. J., concurs. Burgess, J., not sitting.
Case Date:June 27, 1893
Court:Supreme Court of Missouri
 
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Page 263

23 S.W. 263 (Mo. 1893)

117 Mo. 307

The State

v.

Howell, Appellant

Supreme Court of Missouri, Second Division

June 27, 1893

Appeal from Grundy Circuit Court. -- Hon. C. H. S. Goodman, Judge.

The indictment charges the defendant with the murder of Nettie Hall in Linn county on the nineteenth of January, 1889, and this cause comes to this court for the second time. See 100 Mo. 628, where a reversal of the judgment occurred because of error in some of the instructions.

On the return of this cause, the defendant at the June term, 1890, took a change of venue on account of the prejudice of the inhabitants of the counties of Linn and Chariton. Thereupon the cause was transferred to Grundy county in the same circuit, and at the April term, 1891, of the Grundy circuit court, another trial of the cause occurred, in which the jury failed to agree. At the August term next ensuing, defendant filed an application for a change of venue, urging that the trial judge was prejudiced. This resulted in the Hon. C. H. S. Goodman, then judge of the twenty-eighth circuit being called in to sit in the cause, which he did at the adjourned August term, 1891, and having overruled an application for a continuance made by defendant, the parties announced ready for, and went to, trial on the third day of October, 1891, resulting in a verdict of guilty of murder in the first degree, delivered October 9, 1891, and after judgment and sentence, defendant appealed.

The bill of exceptions in this cause was signed and filed April 20, 1892, and yet the transcript herein was not filed in this court until January 23, 1893, or nearly sixteen months after the trial occurred. Although the record is voluminous, there is no excuse for such an unreasonable delay, and investigation should be made as to the cause of such delay.

On the arrival of the transcript, the cause was set down for argument on the thirteenth day of April, 1893, and argued and submitted on that day. Subsequently, however, on suggestion accompanied by affidavits that the bill of exceptions was false and forged, and had been mutilated and changed since being signed by the Hon. C. H. S. Goodman and filed in the office of the clerk of the circuit court of Grundy county, on motion of the attorney general, set aside on the second day of May, 1893.

On May 15, 1893, the attorney general moved the court for a rule and order on the Hon. C. H. S. Goodman, who had then ceased to be judge, commanding him to examine into the suggestion thus made. On May 17, 1893, this motion was granted, and the following rule and order issued to the Hon. C. H. S. Goodman: "Now, at this day it being suggested to this court by the attorney general, who appears on behalf of the state, that the bill of exceptions in this cause, since the same was signed and sealed by the Hon. C. H. S. Goodman, who tried said cause and prior to the time the same was filed in this court has been tampered with, changed and fraudulently altered in the following points and particulars, to-wit: That the testimony of James Hall, R. N. Vorce, D. C. Orr and Jas. C. Moore, who were sworn on behalf of the state and testified upon said trial, and Joseph A. Howell, the defendant herein, who was sworn upon his own behalf and testified upon said trial, has been so changed and altered in the copies of same in the bill of exceptions on file in this court and in the office of the clerk of the circuit court of Grundy county, Missouri, as to omit much material and important evidence adduced upon said trial and so as to insert in said bill of exceptions statements not made by said witnesses upon said trial. That the transcripts on file as aforesaid in this court and in the office of the clerk of the circuit court of Grundy county, do not contain the testimony as given by said witnesses upon said trial, nor do they contain the true copy of said testimony as written in shorthand during said trial, and transcribed by the official stenographer, nor as signed and approved by said circuit judge, but are each false, forged and untrue as aforesaid, and in other particulars. And, whereas the suggestion thus made by the attorney general is duly supported by affidavits; now, therefore, in order that it may be determined whether in deed and in truth said bill of exceptions has been thus fraudulently altered and spoliated as aforesaid, it is considered and ordered by this court that a rule go to the Hon. C. H. S. Goodman, judge as aforesaid, commanding him that he do careful examination make of the said bill of exceptions in connection with the transcribed stenographic notes of said trial and evidence and affidavits filed herein and in connection with such other evidence as he may deem it necessary to take, and that from such notes of evidence, affidavits and other testimony, he do determine whether such bill of exceptions has been fraudulently altered as has been suggested; and if he, the said judge, do find in manner as aforesaid that said bill of exceptions has been altered, that he do proceed at once upon the transcribed stenographic notes of evidence taken at the trial of this cause and the affidavits and evidence as aforesaid and on his own knowledge to restore the said bill of exceptions to what it was at the time the same was signed and sealed by him, and forward the same to this court. And it is further considered and ordered by the court that if the Hon. C. H. S. Goodman, the judge who tried this cause, shall upon examination of said bill of exceptions duly made, in connection with said affidavits and other evidence and on his own knowledge find that the notes of the stenographer of the evidence taken in this cause and transcribed herein were fraudulently altered before the bill of exceptions was signed and sealed by him, the said judge, so that he, the said judge, was fraudulently imposed upon and induced to sign and seal an untrue and false bill; that then he, the said Hon. C. H. S. Goodman, do from said transcribed notes of the evidence, affidavits and from other evidence as well as his own knowledge, determine what was the evidence which should have been contained in such bill; and, having thus determined, that he do cause to be prepared a just and true bill of exceptions in this cause, duly signed and sealed by him in duplicate, and that he, the said judge, do forthwith file one of said duplicate bills in the office of the clerk of the Grundy county circuit court, and that he do forthwith forward the other duplicate bill to the clerk of this court; and that he, the said judge, do, on or before the thirty-first day of May, 1893, certify under his hand and seal to this court, how he has discharged this rule and order, together with all evidence taken by him in said cause, together with the bill of exceptions which he shall determine as aforesaid to be the true bill of exceptions herein. And it is further ordered that a copy hereof be duly certified to the Hon. C. H. S. Goodman by the clerk of this court."

On May 31, 1893, the Hon. C. H. S. Goodman reported that in obedience to the mandate of this court he had examined into the matter committed to his care, and having found that the bill of exceptions had been changed and falsified in part, before the same had been signed and filed, and in part afterwards, he corrected the same from the notes of the stenographer and from other legitimate sources, and forwarded the corrected bill to this court together with his report.

This report was duly and fully approved by an order entered to that effect, and the corrected bill of exceptions ordered to be filed and to stand as the true bill, and the cause was submitted on the thirteenth of June, 1893, without argument.

Mrs. Minnie Hall, a widow, lived on a farm some five and one-half miles southwest of Brookfield, in Linn county. Her family consisted of four children, William, May, Nettie and Roy, aged respectively nine, seven, five and three years. The family lived alone, the husband and father, Ansel Hall, having died some time in 1887. The nearest neighbor lived about one-half mile distant. On the night of Saturday, the nineteenth of January, 1889, at about eleven or half-past eleven o'clock, Mrs. Minnie Hall's house was discovered to be in flames. The neighborhood was comparatively thickly settled and the neighbors quickly thronged to the scene. The house was a small pine frame, and underneath a considerable portion of it there was an old unused cellar. At first, owing to the intense flames, nothing could be discovered but the blazing building; but pretty soon, so rapidly did the light materials of the dwelling consume, one of the sides burned away, which exposed to view the interior, then Mrs. Hall, the mother, was seen kneeling by the side or partly lying on a bed, her hair burned away, disclosing a wound on the top of the skull, as though it had been cut open, crushed or the top knocked off. The body of one of the little girls was seen lying across the bed with her head split open similar to her mother's. the bodies of the other children were not then seen. Underneath a portion of the house was an unused cellar. An effort was made to pull the body of Mrs. Hall out of the flames, but the heat was so great it was found impossible. Just then the flooring gave way and fell into the cellar. When this occurred the body of the little child, Nettie Hall, fell into the outside entrance of the cellar, and with a long rod, which had been procured in the meantime, it was drawn out, and, although considerably burned, was identified without difficulty. Her skull was found to be crushed or cut open. The other bodies were not rescued from the flames, and only the trunk of the mother's body, the spinal columns and portions of the bones of the other children were found in the ruins. Upon an examination of the debris in the cellar a human foetus...

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