8 S.W. 749 (Mo. 1888), State v. Jackson

Citation:8 S.W. 749, 95 Mo. 623
Opinion Judge:Sherwood, J.
Party Name:The State v. Jackson, Appellant
Attorney:J. C. Kiskaddon and James Booth for appellant. B. G. Boone, Attorney General, for the state.
Judge Panel:Sherwood, J. In paragraph VIII., Black and Brace, JJ., concur. Norton, C. J., and Ray, J., dissent, as to whole of paragraph. In paragraph IX., Brace, J., alone concurs. In paragraph X., Ray, J., alone concurs.
Case Date:June 04, 1888
Court:Supreme Court of Missouri

Page 749

8 S.W. 749 (Mo. 1888)

95 Mo. 623

The State


Jackson, Appellant

Supreme Court of Missouri

June 4, 1888

Appeal from Franklin Circuit Court. -- Hon. Rudoplh Hirzel, Judge.

Reversed and remanded.

J. C. Kiskaddon and James Booth for appellant.

(1) That part of Hartley's testimony in which he says defendant admitted that he committed another crime in Ohio is inadmissible. To be admissible it must be a confession or part of the res gestae. It is not a confession. A confession must acknowledge doing some act which is a material fact in the criminal transaction on trial. Gabriel v. State, 40 Ala. 357; People v. Williams, 2 Abb. App. Dec. (N. Y.) 596. As for instance, in Head v. State, 44 Miss. 731, the declaration of defendant as to the effect of a shot which took the life of a person for whose murder defendant was on trial was held to be admissible. To admit evidence of other crimes they must be brought into a common system or direct connection with the crime for which the defendant is being tried. Griffith v. Payne, 11 A. & E. 131; State v. Laparge, 57 N.H. 245; Cole v. Commonwealth, 5 Grat. (Va.) 696; Farrar v. State, 2 Ohio St. 54; Brock v. State, 26 Ala. 104; State v. Miller, 47 Wis. 530; Coleman v. People, 55 N.Y. 81; People v. Corbin, 56 N.Y. 363; Roesenweig v. People, 63 Barb. (N. Y.) 634; Snyder v. Commonwealth, 65 Pa. St. 519; Walker v. Commonwealth, 1 Leigh (Va.) 574; State v. Shuford, 69 N.C. 486; State v. Rider, 90 Mo. 54. It is inadmissible as part of the res gestae. State v. Ware, 62 Mo. 597; State v. Evans, 65 Mo. 574; State v. Swain, 78 Mo. 380; State v. Gabriel, 88 Mo. 631; Sutton v. Johnson, 62 Ill. 209; Enos v. Tuttle, 3 Conn. 250; Elkins v. Hamilton, 20 Vt. 627. The state of defendant's mind at the time he is said to have stolen horses is not material; state of mind at the time he is alleged to have committed the homicide is material. 1 Greenl. on Evid. (13 Ed.) sec. 108; Carleton v. Patterson, 29 N.H. 580; Phillips v. Kelly, 29 Ala. 628. It does not appear that defendant admitted stealing horses in a conversation, any part of which was admissible. Hartley and defendant were in jail together and were talking about their respective cases from day to day. They had numerous conversations. This appears by Hartley's testimony. But even if told in a conversation, part of which was admissible, the state could not introduce it. It is the defendant who may claim the privilege of getting the whole conversation and that on cross-examination. Kinchelow v. State, 5 Humph. (Tenn.) 9. (2) There was no confession and nowhere any evidence of a confession. The testimony of Hartley does not purport to be of any admission or acknowledgment by defendant of his agency or participation in the crime charged against him. The fourteenth instruction given by the court is, therefore, wrong. It was error to dignify anything the defendant said with the name of a confession. State v. Jones, 33 Iowa 9; State v. Red, 53 Iowa 69. (3) The testimony of Jos. Noelke is absolutely immaterial, while it might tend to prejudice the jury with the implied idea that he denied his identity. Even if he required the officer to prove it, it could not be construed as an admission or confession of guilt. Whar. Crim. Evid., sec. 680. (4) The court should have given an instruction on the defence of alibi predicated on defendant's own testimony. The defendant testified that he was not present at the time and place where McVickers was killed. This is an alibi. Instructions must be predicated on defendant's testimony. State v. Banks, 73 Mo. 592; State v. Anderson, 86 Mo. 309; State v. Partlow, 90 Mo. 608. And where there is evidence of an alibi the court should instruct on that point. State v. Kelly, 16 Mo.App. 213; State v. Johnson, 91 Mo. 439. (5) The thirteenth instruction given by the court is erroneous as it stands. The court might as well have told the jury that the testimony of any other witness, taken together with defendant's conversations, was more credible when it was against him than for him. State v. Maguire, 68 Mo. 197; State v. Cook, 85 Mo. 40; Bowers v. People, 74 Ill. 418; Bulwer v. People, 95 Ill. 394. (6) While it is conceded that no one particular act of the jury may be sufficient to warrant the setting aside the verdict, yet it is submitted that the affidavits disclose such a general looseness of conduct, and such carelessness on the part of the officer in charge of them as to defeat the purpose of the statute requiring their seclusion. (7) The evidence does not support the verdict.

B. G. Boone, Attorney General, for the state.

(1) The admissions to Hartley by the defendant were admissible in evidence. They were made in attempting to explain away suspicions as to his connection with the crime. All and not a portion of such statements are properly admitted, whether favorable or against the party making them. 1 Greenlf. Evid., sec. 218; 2 Russ on Crimes, 868; State v. Carlisle, 57 Mo. 102; State v. Branstetter, 65 Mo. 149. Evidence of the commission of other crimes by defendant was in this case only brought out incidentally, and its effect was to benefit rather than injure defendant, because it showed that he was disturbed when he heard of McVickers' murder, not on account of fear of punishment, according to his statement, but because of the accusation of its commission being made against him. Admission of evidence favorable to the accused is not error. State v. Holmes, 54 Mo. 153. (2) Where proof of an alibi is not made as a substantive affirmative defence it should be treated as other evidence in rebuttal, and a separate instruction in regard to it is not required. 1 Bish. Crim. Proc., secs. 1062, 1066; State v. Murray, 91 Mo. 95; State v. Jennings, 81 Mo. 185; State v. Rockett, 87 Mo. 668; State v. Kelley, 16 Mo.App. 213. The defence of alibi was not made or attempted to be made in this case. (3) The thirteenth instruction complained of by appellant was proper.

Sherwood, J. In paragraph VIII., Black and Brace, JJ., concur. Norton, C. J., and Ray, J., dissent, as to whole of paragraph. In paragraph IX., Brace, J., alone concurs. In paragraph X., Ray, J., alone concurs.


Page 750

[95 Mo. 627] Sherwood, J.

Labadie is a town in Franklin county on the Missouri Pacific Railroad, near the Missouri river. At that point, the railroad, in pursuing its general eastwardly course towards St. Louis, turns a little east of south in going to Gray's Summit, the next town on the railroad. Pacific is the next town on that road, situate at the junction of the Missouri Pacific and the 'Frisco Railroads, and nearly due east from Gray's Summit, so that Pacific, in consequence of the elbow thus formed, is nearly due southeast from Labadie; and much nearer in an air line to that place than by the railroad route. These facts are gathered from a map of the state, and not from the record; and this is done in order to a better understanding of the facts which this record does disclose.

At about nine o'clock on the morning of October 22, 1886, the train arriving from St. Louis brought to Labadie the defendant, Webster Jackson, then some twenty-two years of age, and another man of sixty years, named Alexander McVickers. They had previously worked together for some time as cooks, etc., at Keene's camp in the neighborhood, but had quit there a month before, and the defendant had gone to St. Louis, [95 Mo. 628] and upon his return after a short absence, had returned to Labadie and worked a few days at Schaefer's camp, and after that had gone again to St. Louis. Both men, it seems, were well known in the vicinity. Upon alighting from the train, Keene, their former employer, spoke to both of them, and said: "Hello! Jackson, what brings you back in this country?" To which Jackson replied:

Page 751

"I am just going back into camp." F. M. North, who knew McVickers by sight, but was well acquainted with Jackson, met them, after they had alighted from the train, and spoke to Jackson, who "said that he and the old man (meaning McVickers) had got a job at Schaefer's, and were going down to cook there." Jackson seemed to be in a hurry, and said the old man was ahead of him. They were then going towards Schaefer's camp, which is about five miles east of Labadie, and the path they were taking leads directly to the road that goes to Reed's Landing, and that road crosses Fiddle creek on a bridge, and goes from there to Pacific. Reed's Landing is about three and one-half miles from Labadie, and the bridge is about equidistant between Labadie and Reed's Landing, and the road going from the bridge leads to Schaefer's camp turning off at Utter's place, which is a mile and a quarter to a mile and a half from Schaefer's camp.

T. M. Luce, a practicing physician, also saw Jackson and McVickers at Labadie at the time already mentioned, and while the doctor was speaking to Jackson, McVickers walked on. Dr. Luce says he inquired of Jackson where he was going, and Jackson replied that he was going to Schaefer's camp to cook, when Dr. Luce told him that he had seen Mr. Stevens at Schaefer's camp, who had said to him that Jackson's services were not required. That Jackson then said: "That is all right; I have been to the company's office in town, and have seen Mr. Schaefer, and he told me to go up to [95 Mo. 629] Pacific and get the old man and come out; no trouble about my and the old man's wages." Jackson's last words to the doctor were: "Well, there goes the old man; I must catch up;" and they went off in the direction of Schaefer's camp. Dr. Luce also testified that Jackson was not well at the time he saw him at the train; that he had been treating him for malarial trouble, and that his face on that morning displayed unusual pallor.

Jackson and McVickers were next seen together by Jas. C. North, who...

To continue reading