State v. Taylor

• Decision Date: 30 April 1877
• Citation: 64 Mo. 358
• Parties: STATE OF MISSOURI, Respondent, v. WILLIAM W. TAYLOR, Appellant.
• Court: Missouri Supreme Court

64 Mo. 358

STATE OF MISSOURI, Respondent,

v.WILLIAM W. TAYLOR, Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Webster County Circuit Court.

Nesbit & Ferguson, with Smith & Wisby, for Appellant, cited: Const. Bill of Rights, § 22; State vs. Burnside, 37 Mo. 343; State vs. Wyatt, 50 Mo. 309; Sellers vs. People, 3 Scam. 412; State vs. Brown, 15 Kas. 400.

J. L. Smith Att'y Gen'l, for Respondent, cited: State vs. Harlow, 21 Mo. 440; State vs. Sloan, 47 Mo. 604; State vs. Keene, 50 Mo. 357; Baldwin vs. State, 12 Mo. 223; McComas vs. Covenant Ins. Co., 56 Mo. 573; 3 Scam. 88; 2 Grat. 564; 7 Id. 619; 4 Blackf. 101; 3 Humph. 396; 5 Park. Crim. Rep. 644; Wagn. Stat. 1103, §§ 12, 13, 14; Dana vs. Tucker, 4 Johns. 487; Lisle vs. State, 6 Mo. 428; State vs. Ross, 29 Mo. 51; Whart. Crim Law, 655, and note.

HENRY, Judge, delivered the opinion of the court.

At the November term, 1876, of the Hickory circuit court, defendant was indicted for the murder of Nathan Ghann, and on his application a change of venue was awarded to the circuit court of Webster county, in which he was tried and convicted of murder in the first degree, at the February term of said court, 1877.

The evidence all tended to show that the prisoner and Ghann met at the town of Elkton, in Hickory county, and that defendant and Ghann had a friendly scuffle, as it appeared to the witnesses, and immediately afterwards went into a store house. Defendant then said he could throw Ghann in a wrestle. Ghann said he could not. Defendant said he could, and Ghann again said he could not. Defendant thereupon told Ghann that he was a “d--d liar.” He repeated the expression, when Ghann said it was more than he could stand, and pulled off his coat, and he and defendant, who held a knife in his hand, were about to fight, when bystanders interfered and separated them. Defendant was taken out of the house, but stood in front of the door abusing and cursing Ghann, challenging him to fight him, and made an unsuccessful attempt to get into the house.

This occurred on the 23d day of October, 1876, about noon. Defendant, who resided but a few miles from Elkton, got on his horse, went home and procured a double barreled shot gun, and returned to Elkton the same afternoon, stating on the way, in the presence of several parties, that “Ghann goes to hell before sun down,” or “I'll send him to hell before sundown,” witnesses differing as to which expression he used. Arriving at Elkton he sought the deceased, and, without any provocation then given, shot and killed him. This occurred in the latter part of the afternoon. Defendant, after killing Ghann, told several persons, at several different times, that he shot Ghann for abusing him that day at Elkton. He made that statement to the sheriff, who arrested him that night.

One of the defendant's sons testified that he saw Ghann the morning of the day he was killed; had a conversation with him, in which Ghann said he had “done her (my father's daughter) just as he had done McCracken's wife.” There was evidence tending to show that Ghann had had criminal connection with Mrs. McCracken. Witness further stated, that, after Ghann was killed, he asked his father what he had killed him for, and he said he killed him for the way he had treated “Bug” (his daughter's nick name). Two other witnesses for the defense testified to improper liberties taken by Ghann, on one occasion, with Miss Taylor, a young girl about fifteen years of age, daughter of defendant, and that Ghann afterwards told them he could and would have illicit intercourse with her.

There was no evidence that Wm. Taylor, the son who testified that Ghann said to him he had done with Miss Taylor as he had with McCracken's wife, ever communicated that fact to his father; but, on the contrary, he left home early that morning, and had no conversation with the old man until after Ghann was killed. Nor was there any evidence that the two McCrackens, who testified to the conduct of Ghann towards Taylor's daughter, ever informed Taylor, or any of his family, of that fact, or that Ghann had said he would seduce her.

Defense offered evidence of threats made by Ghann against Taylor, which was excluded by the court, as was also evidence to the effect that he had seduced women in Tennessee before coming to this State.

Defendant asked the court to instruct the jury on the subject of emotional insanity, which the court refused to do. It is unnecessary to copy the instruction. The evidence did not warrant the instruction asked, or any instruction that subject.

There was no evidence of the seduction of the daughter, except that of William Taylor and the two McCrackens; no evidence that the facts which they pretded to know were ever communicated to the defendant; and stating why he had killed Ghann, to a half dozen or more persons, at different times, he gave as a reason that Ghann had abused him that day at Elkton; and the only witness who s that he gave the sedtion of the daughter by Ghann as the reason for killing him, was his son William.

The court properly refused to admit evidence of threats made by Ghann against defendant. The evidence establishes beyond a doubt, that defendant sought Ghann and shot him at a time when Ghann was making no demonstration against him. It is not pretended that defendant, when he killed Ghann, was acting in self defense. Defendant was the aggressor in the difficulty in the forenoon, and when shot by defendant, Ghann was not only making no attempt to injure defendant, but was unarmed and endeavoring to escape from him.

The court also properly excluded the evidence offered to the effect that Ghann had seduced women in Tennessee. It would not have justified the husbands, fathers or brothers of the seduced women in Tennessee in taking his life, and certainly it was not for the defendant to avenge them by slaying the seducer.

Another question of more difficulty is presented by the motion for a new trial. David Smith, one of the panel of forty jurors summoned in the case, stated, on his examination on the voir dire, that he had not formed or expressed an opinion as to the guilt or innocence of the defendant. After the trial, in support of the motion to set aside the verdict, defendant produced and read to the court the affidavits of Samuel E. Cole, John. W. Rice and George M. Todd.

Cole swears, that at that term of the court at which defendant was tried, he heard Smith say that “there were so many cases coming here on change of venue that some of them ought to be strung up.”

Rice swears, that a day or two before the jury was summoned in the Taylor case, he heard David Smith say; “I have heard something about the murder, or I have heard about it, and--damn Taylor! he ought to be hung,” or words to that effect.

Geo. M. Todd swears, that “on Saturday the 24th, or Sunday the 25th, March, 1877, some men came along, and Smith asked who they were. I replied: They are from Hickory county, I believe. Smith then said: ‘I understand there is a man to be tried here at this term from that county, for murder, and from what I hear he ought to be hung, or will hang,’ or...