State v. Lewis

• Decision Date: 01 February 1904
• Citation: 79 S.W. 671,181 Mo. 235
• Parties: STATE v. LEWIS.
• Court: Missouri Supreme Court

79 S.W. 671

181 Mo. 235

STATE v. LEWIS.

Supreme Court of Missouri. Division No. 2.

February 1, 1904.

CRIMINAL LAW—CONTINUANCE—LACK OF OPPORTUNITY TO CONFER WITH ATTORNEY—JUROR—OPINION AS TO ACCUSED'S GUILT— PREVIOUS CRIME — DECLARATIONS OF CO-CONSPIRATOR—ADMISSIBILITY OF EVIDENCE —INSTRUCTIONS—VERIFICATION OF INFORMATION—TIME FOR TAKING OBJECTION.

1. The continuance of a criminal case was sought because accused had no attorney other than the one appointed by the court, and accused had been removed to the jail of another county, 60 miles away, whereby his counsel had been prevented from consulting with him. Counsel demanded of the sheriff the return of accused, and was told that his request would be complied with a few days before trial, to which counsel replied that that would give them plenty of time, as a jury would have to be summoned. Counsel could have consulted with accused at the jail in the other county whenever he desired. Held, that the refusal of the continuance was not an abuse of discretion.

2. A juror offered, whose examination shows that he has neither formed nor expressed an opinion as to accused's guilt or innocence, and knows nothing of the facts, is not rendered incompetent because he admits that he read certain newspapers containing accounts of the crime, which, however, did not create a "leaning in his mind against the defendant," nor by the fact that he had stated that whoever shot deceased was guilty, and that, if defendant was there at the time of the crime, he was guilty.

3. Accused and R., having burglarized a bank, took refuge, about a month later, in the home of R.'s parents. A detective employed to discover the perpetrators of the burglary secured a search warrant, and also a warrant for R.'s arrest, and, having been constituted by the deputy sheriff a member of a posse of four, approached the house with his colleagues. R. ordered his mother and sisters to go to the basement, and then R. and accused went out of the house, and ordered the approaching men to throw up their hands, which they did, notwithstanding which R. and defendant shot and killed the detective. They then escaped, and were arrested in another state, having in their possession a revolver taken from a member of the posse, and also money identified by the bank officers as having been taken from the bank vault. Held that, in a prosecution for the murder, evidence of the previous burglary was admissible both to show motive and to establish defendant's identity.

4. Where two defendants in a murder case are charged as principals, the declarations of one of them at the time of the killing are admissible under the information against the other.

5. Defendant and R. burglarized a bank, and took refuge at the home of R.'s parents. A sheriff's posse approached, and R. ordered his mother and sisters into the basement. He and defendant then emerged, and covered the approaching men, ordering them to throw up their hands, which they did. Defendant and R. then fired and killed one member of the posse. Held, that a conspiracy to resist arrest sufficiently appeared, so as to make R.'s declarations competent against defendant when prosecuted for the murder.

6. The killing having been done with malice and deliberation, instructions for any other degree of homicide than that of murder in the first degree were properly refused.

7. An objection to an information that it is not verified by the affidavit of the prosecuting attorney, nor predicated upon that of some person competent to testify in the case, cannot be taken for the first time on motion in arrest of judgment.

Appeal from Circuit Court, Franklin County; Wm. A. Davidson, Judge.

Fred Lewis, alias Fred Collins, was convicted of murder in the first degree, and appeals. Affirmed.

Jesse M. Owen, W. L. Cole, and Jesse H. Schaper, for appellant. The Attorney General, Sam B. Jeffries, and Jas. Booth, for the State.

BURGESS, J.

Defendant was convicted in the circuit court of Franklin county of murder in the first degree, and his punishment fixed at death, under an information filed by the prosecuting attorney of said county, charging him and one William Rudolph with having shot to death with a pistol one Charles J. Schumacher at said county on the 24th day of January, 1903. The case is before us upon defendant's appeal for review.

On the night of December 26, 1902, the Bank of Union at Union, Mo., in Franklin County, was burglarized by two men. It afterwards developed that these two men were the defendant, Fred Lewis, alias Fred Collins, and William Rudolph. The burglary was committed by the use of some high explosive, which blew open the vault and totally destroyed the safe containing a large amount of money and other valuable property. This money and property, which consisted of $10,000 in cash and about $80,000 in notes and securities belonging to the bank was placed in a sack and carried away. The deceased, Charles J. Schumacher, at this time was in the employ of the Pinkerton Detective Agency as a detective, and was sent to Franklin county to investigate the burglary above mentioned, and to determine, if possible, the persons who committed it. In this investigation he traveled over the greater part of Franklin county, including the towns of Union, St. Clair, and Stanton, and particularly the territory surrounding Stanton. He reached Stanton about the 21st or 22d of January, and there learned that one William Rudolph, who had been gone from home for some time, and who lived in that community a short distance from Stanton, had recently returned, bringing with him another man, known as Collins, but whose real name it afterwards developed was Fred Lewis, the defendant herein. These two men were suspected of having committed the burglary. Acting upon this suspicion, and from all the circumstances and information obtainable, the deceased, Schumacher, in company with Robert Schmude, left Stanton on the morning of the 22d of January—two days before the killing—for the ostensible purpose of rabbit hunting, the real purpose, however, being to make a further investigation as to the truth of the report that the defendant and Rudolph had burglarized the bank at Union. During the course of the day they reached the premises of Frank Rudolph, the stepfather of William Rudolph, where William Rudolph and the defendant were staying at that time. They knocked at the door, and asked for a drink of water. The door was opened just wide enough to enable some lady in the house to hand out a cup of water. After this either Schmude or the deceased asked if they might not get dinner there, stating that they had been hunting, were hungry, and wanted something to eat. The person who had been at the door stepped away, when William Rudolph came up, and asked them what they wanted. They again stated that they wanted something to eat. Rudolph said, "Hand me your guns, gentlemen." The guns were placed in the corner of the room, where Rudolph could guard them while they were eating. After this they took their guns and departed, going back to Stanton. After they had returned to Stanton, Schumacher applied to a justice of the peace for a search warrant giving authority to search the Rudolph home for the purpose of discovering, if possible, the money stolen from the bank. At the same time he requested the sheriff of the county to come to Stanton and assist him in making the arrest. The sheriff sent his deputy, L. Vetter, to assist in this work. Before leaving Union, Vetter obtained a warrant for the arrest of Rudolph upon the charge of burglary. Vetter then organized a posse of men at Stanton, composed of Charles J. Schumacher, Emanuel Cromer, and B. F. Tetchner, and went with them to the Rudolph home, four miles northwest of Stanton. The Rudolph house was about 60 feet long, 40 feet wide, with four doors on the west side, and stands north and south on a slight elevation, sloping off towards the west. It is situated in the midst of a clearing of an acre or an acre and a half. Scattering trees were standing at places within 30 feet of the house. The deceased, with the deputy sheriff and the other parties, were on foot, armed with shotguns and revolvers. The latter they caried in their pockets. The ground was covered with about six inches of snow. They approached the Rudolph home from the west side, walking together. The Rudolph family at this time consisted of Frank Rudolph, his wife, two daughters, one 14 and the other 18 years of age; William Rudolph and the defendant, Fred Collins, being there at the time. As soon as it was discovered that the sheriff and deceased and their companions were approaching the house, William Rudolph requested his mother and two sisters to go to the basement. George Harmes was at the Rudolph house at the time, and a few moments before the shooting walked with old man Rudolph from the front door to the blacksmith's shop about 100 yards from the house. Just as Harmes reached the blacksmith's shop, he turned, and looked back, when he saw William Rudolph come out of the house with a Winchester rifle in one hand, and run to the corner of the house, looking towards the four men who were approaching, and then immediately return into the house. The deceased and deputy and the two other parties approached the house in an ordinary manner. Tetchner went to the northwest corner of the house, to see that no one should escape. The other three men, Vetter, Cromer, and Schumacher, went to the second door and knocked. When they rapped at the door, the defendant and William Rudolph came out, with weapons in their hands, and ordered the men to throw up their hands. The deceased, while standing about four feet from the house, immediately threw up his hands, while Rudolph and Collins began firing their weapons at once. The deceased made no effort to fire his gun, and with his hands uplifted received six wounds, one striking him in the forehead, passing through the brain, causing instant...