The State v. Foley
| Citation | 46 S.W. 733,144 Mo. 600 |
| Parties | The State v. Foley, Appellant |
| Decision Date | 14 June 1898 |
| Court | United States State Supreme Court of Missouri |
Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.
Reversed and remanded.
H. F Simrall, John Dougherty and B. L. Woodson for appellant.
(1) The defendant, under the laws of the State of Missouri, was entitled to a full panel of qualified jurors before he was required to make his peremptory challenges. State v McCannon, 51 Mo. 27; State v. Waters, 62 Mo 196; State v. Davis, 66 Mo. 684; Const., art. II, sec. 22; R. S. 1889, sec. 4197; Greenfield v. People, 74 N.Y. 277. (2) Some of these jurors attended the former trial a day or half a day, and heard some of the witnesses testify, some of them conversed with a witness in regard to the case, read the Liberty Tribune which gave substantially the testimony in the case. And so appellant in this cause clearly shows by the record herein that upon the trial below he was denied that constitutional guarantee, which is the most important security of a fair trial -- an impartial jury of the county. State v. Culler, 82 Mo. 623; State v. Hultz, 106 Mo. 41; State v. Robinson, 117 Mo. 649; Greenfield v. People, 74 N.Y. 277; Thomps. and Marr. on Juries, sec. 220. (3) Gross error was committed by the court in the matter of the conversation held by Land and Talbott with the defendant. Queen's case, 2 Brod. & Bingham, 298; Prince v. Samo, 7 A. & E. 627; State v. Braudette, 65 Mo. 149; State v. Young, 99 Mo. 674; U. S. v. Bram, 18 S.Ct. 183. (4) There is such a conflict and inconsistency between instruction numbered 9, given for the State, and the instruction given for the defendant upon the same subject as to constitute reversible error.
Edward C. Crow, Attorney-General, for the State.
(1) The prosecution is never bound to establish an adequate motive for the commission of a crime, nor, indeed, any motive at all for the alleged crime. The fact of homicide being established, the inability to discover the motive does not disprove the crime. McLain v. Comm., 99 Pa. St. 96; Wills on Circum. Ev., 47 and 249. (2) The objection to testimony of witness Land, detailing conversation had in a room adjacent to the sheriff's office, is not a legal objection. There is nothing in the record to show that defendant was under duress, or that inducements or threats were held out to him; he was not bound to talk; he was not bound to be interviewed. What he said was voluntary on his part. State v. Anderson, 96 Mo. 241; State v. Patterson, 73 Mo. 695; State v. Hopkirk, 84 Mo. 278; State v. Myers, 99 Mo. 107; State v. Patterson, 73 Mo. 695. (3) The jurors were competent under the decisions in this State. State v. Taylor, 35 S.W. 92; State v. Bryant, 93 Mo. 273; State v. Duffie, 124 Mo. 1; People v. Reynolds, 16 Cal. 128; State v. Williamson, 106 Mo. 169; State v. Cunningham, 100 Mo. 386; State v. Dyer, 139 Mo. 199; State v. Dunlap, 9 Tex.App. 179.
J. J. Williams also for the State.
(1) The ground for challenging the six jurors was that they were "incompetent." No specific cause was given. This is insufficient. State v. Taylor, 134 Mo. 142; State v. Smith, 114 Mo. 406; State v. Moon, 117 Mo. 395. (2) Persons who have formed opinions from rumor, or newspaper reports, are not for that reason disqualified as jurors, where they believe they can give the defendant a fair and impartial trial. State v. Duffy, 106 Mo. 102; State v. Robinson, 117 Mo. 649; State v. Taylor, 134 Mo. 141. (3) The defendant did not object to the question of the prosecuting attorney which called for the whole conversation between Land and Talbott and defendant, but did move to strike out all the testimony of the witness on that point. State v. Dickson, 78 Mo. 448. The exception should be taken at the time of the supposed error and reiterated in the motion for a new trial. State v. DeMosse, 98 Mo. 340; State v. Crab, 121 Mo. 563.
At the February term, 1897, of the circuit court of Clay county the defendant was indicted for the murder of his mother, Mrs. Elizabeth Foley, on the seventeenth of November, 1896. He was duly arraigned and went to trial at the June term, 1897, but a mistrial resulted owing to the disagreement of the jury. The cause was continued to the November term, 1897, at which time it was tried and defendant convicted of murder in the first degree. In due time motions for new trial and in arrest were filed and overruled and defendant sentenced to be hanged. From that conviction this appeal is prosecuted.
The State relied entirely upon circumstantial evidence. At the time of the alleged murder the Foley family consisted of the widowed mother, Mrs. Elizabeth Foley, two daughters, Misses Fannie and Amelia Foley, and one son, the defendant, William S. Foley. The father of defendant had been dead five or six years. Another married daughter, Mrs. Morrow, and her husband, lived about three quarters of a mile from the Foley homestead. The Foley family were comfortably fixed financially and had lived on the same farm for a quarter of a century and enjoyed the esteem and respect of all their neighbors. At the time of the homicide of which he was convicted defendant was thirty-three years old and unmarried. On the seventeenth day of November, 1896, defendant attended a sale of Jersey cattle at the farm of Mr. Wymore, a neighbor. He ate his breakfast at home that morning, and took the blacking brush and a bootjack, which he kept in his room in a box, and laid the bootjack on a freshly painted bench on the porch and polished his shoes and left home in a buggy, driving a pair of mules. He went first to Mr. Talbott's. After he left, his sister Amelia put the blacking and the brush away, but left the bootjack on the bench. Having reached George Talbott's, that gentleman rode in defendant's buggy and led his horse. They went first to Liberty and thence to Wymore's, arriving at the sale about 10 or 11 o'clock. He and Talbott remained at the sale until 3:30 o'clock in the afternoon, and then started to their homes. Talbott rode with defendant in his buggy until they reached the fork of the roads, when Talbott went to his home horseback, and defendant drove on home, arriving there at 4:20 o'clock that afternoon. After reaching home defendant unhitched his team, fed his hogs, turned his horse out and then went to the house. Mrs. Foley, Misses Fannie and Amelia and Miss Allie Ligon, a neighbor, were at home when he came. Miss Ligon soon left for her home. Defendant accompanied her to her horse, and assisted her to mount, and then went about one hundred yards west to open the gate to the public road, to let her out. He then returned to the house and his sister requested him to go with her to Mrs. Morrow's, whither she was going so as to enable Mr. Morrow to attend a lodge meeting in Liberty that evening. His mother said to them, "come, children, do up your night's work." Defendant said to his sister, "you help me milk and I will go around that way with you as I am going to Ligon's." They finished their work, ate supper and defendant saddled the horses, and he and Amelia rode over to Mr. Morrow's, and he left her there and proceeded to Ligon's, a distance of two miles. Defendant rode a black horse which belonged to his sister Fannie, who cautioned him to ride slow, and he and his sister Amelia rode in a walk to Morrow's. Defendant remained at Mr. Ligon's about an hour and a half. He went in a walk going over there from Morrow's. As defendant came out of Mr. Ligon's, he stopped at the stile and talked twenty or thirty minutes with Emmett Ligon, a son of Mr. Ligon. The testimony tends to show that while at Ligon's defendant sat in a position which enabled him to see the clock. Ligon testified he had never known defendant to leave so early as he did that night. He usually sat until half past ten. As already said Mr. Ligon had an unmarried daughter, a young lady at that time. When defendant left Ligon's he went down the main road in the direction of his home until he reached Mr. Ross' gate, where he went in and rode through four gates to his home. The purpose of noticing in detail the distances and stops of defendant that evening, is to locate his whereabouts at the time the shots were fired which killed his mother, the contention of the State being that if he reached Ligon's at seven o'clock, and stayed an hour and a half, and then occupied thirty minutes in going home, he reached there at or about nine o'clock. Various witnesses, neighbors of the Foley's, testified they heard the shots and screams of women either a few minutes before or a few minutes after nine o'clock, whereas defendant introduced witnesses who testified to hearing the shots nearly an hour before the nine o'clock whistle was sounded in Kansas City, a signal easily heard and understood in that neighborhood. Defendant testified that he rode home in a walk from Ligon's that night, went to the barn, found the east barn gate open, the mules out, stable door open, horse out and saddle gone out of the barn. He went to the house to tell his mother and sisters the horse was gone; found the doors open, called to them, but no one answered. He went into his mother's room and struck a match and discovered the bed torn to pieces and bloody and his mother and sister Fannie murdered. Without touching their bodies he says he rode horseback in a run to Mr. Morrow's, his brother-in-law, three quarters of a mile, and reached there in about three or four minutes. He then hurried to the residence of Mr. Williams, one and one half miles from Morrow's, and reached there a few minutes after ten o'clock. He only remained at Morrow's a few minutes.
Defendant belonged to a detective association, and on the day of sale ...
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