The State v. Brown

• Decision Date: 16 May 1905
• Parties: THE STATE v. TOM BROWN, Appellant
• Court: Missouri Supreme Court

87 S.W. 519

188 Mo. 451

THE STATE v. TOM BROWN, Appellant

Supreme Court of Missouri, Second Division

May 16, 1905

Appeal from Greene Criminal Court. -- Hon. J. J. Gideon, Judge.

Reversed and remanded.

M. C Smith, J. T. Blair and C. J. Wright for appellant.

(1) Defendant was entitled to a jury whose verdict would not take into consideration the color of his skin. (2) The testimony of witness Reese was all incompetent. That part of it wherein the witness speaks of the pistol or gun and seeing it was properly objected to and exception taken to its admission; so with the remarks attributed by the witness to defendant. (3) The evidence fails to show that the alleged declaration was read to the declarant before he signed it. No foundation was laid for a dying declaration. "Before a dying declaration should be admitted, a foundation for such evidence should be laid, showing the expressions or action of the deceased, his sense of impending death, and the circumstances surrounding him at the time, in order that the court may judge whether the deceased, at the time he made the declarations, was conscious of his condition." It is not sufficient that the dying declarations offered should state these facts. Kerr, Law of Homicide (Ed. 1891), sec. 412; 1 Archbold's Crim. Prac. and Plead. (7 Ed.), pp. 449, 451; 1 Greenl., Evi. (12 Ed.), sec. 158.

Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.

(1) The court was not in error in denying the challenge for cause in the examination of the jurors on their voir dire. R.S. 1899 sec. 2616; State v. Brennan, 164 Mo. 507; State v. Elkins, 101 Mo. 349. (2) It was competent for the court to admit the testimony of witnesses Reese and Walker as to the declarations and conduct of defendant on the night of the occurrence. It is evident from the testimony that defendant was prepared for any emergency which might arise where "a gun" could be used. State v Grant, 79 Mo. 137; State v. Hamilton, 170 Mo. 377. (3) There can be no question that the declarant was in extremis. His statement shows it and the fact of his death, on the day following the one upon which he was shot, confirms his belief. The court excluded from the consideration of the jury all portions of the dying declaration which were immaterial and incompetent. State v. Elkins, 101 Mo. 344; State v. Garth, 164 Mo. 553; State v. Parker, 172 Mo. 191; State v. Draper, 65 Mo. 340.

FOX, J. Gantt, J., concurs; Burgess, P. J., absent.

OPINION

FOX, J.

This cause is in this court by appeal on the part of the defendant from a conviction of murder of the first degree from the criminal court of Greene county, Missouri. The prosecution is based upon an information, duly verified by the prosecuting attorney, and as its validity is not challenged, it can serve no useful purpose to reproduce it.

The facts of this case, as developed at the trial, on the part of the State, may be briefly stated as follows:

The difficulty occurred in the city of Springfield, Greene county, Missouri, at the Queen City restaurant, on the 27th day of October, 1903. The evidence shows that Tom Brown is a negro and that the deceased, W. W. Weir, was a white man; at the time of the difficulty the deceased was employed as a dishwasher in the Queen City restaurant, working at night; it appears that the restaurant had but two rooms and that in the kitchen was a table where negroes were served; the kitchen was a small room, seventeen by twenty feet. On the night of the difficulty Tom Brown entered the restaurant and ordered a dish of oysters, taking a seat at the serving table in the kitchen; in the kitchen, aside from the serving table in the center, there was a dishwashing table and a range. In the restaurant, when Brown entered, were Huffman, the cook, Weir, the dishwasher, and Frank Wofford, the waiter. Brown entered the restaurant between twelve and one o'clock at night; he was known to all persons about the restaurant, as he had been in the habit of eating night lunches there. It appears that Weir was a one-legged man and used a crutch. The evidence shows that after Brown had eaten his oysters, Weir, who was sitting at the dishwashing table, was taken with a fit of coughing or sneezing, and Brown said to him, "What in the hell is the matter with you, do you feel better?" and Weir replied, "Go on and leave me alone, I am not bothering you." Brown said, "By God, he didn't have to go out until he got ready." When the talking began Brown was seated at the table and Weir was washing dishes; Weir got up, walked five or six feet and reached for his crutch which was sitting on the dishwashing table, walked back and leaned up against the table. Brown said, "Hold on here, you don't know who I am," to which Weir replied, "Yes, you are a nigger." Brown moved in the direction of Weir, who shoved up his crutch on a level with Brown's chin, and the witness says he thought it struck his chin; Brown took a revolver from his pocket and holding it in both hands, pointed it at Weir and fired, shooting him in the abdomen, causing a wound which extended through the body, and the bullet lodged in the back and on the right side. Weir was removed to a hospital, where he died from the effect of the wound on the 28th day of October, 1903.

Brown immediately left the restaurant with his pistol in his pocket and was not located until about two o'clock in the afternoon following the morning of the shooting. When found he was locked in a room, lying on the floor asleep; his revolver was found on the floor by his side. Brown stated to the officers arresting him, "Well, you got my gun. I guess you got me. If I had got my gun first we would had a happy moment here, we would all die together."

The revolver, which was a 38-calibre Colts, had six chambers, five of which were loaded and one empty, was introduced in evidence at the trial, and identified as having been taken from Brown at the time of his arrest.

William Reese, testifying in behalf of the State, stated that he was engaged as a hack driver in the city of Springfield at the time of the difficulty; that he met the defendant about 8 o'clock that evening, and he engaged him to take him to a colored dance; said he wanted to be there at 11 o'clock; at 11 o'clock he called for the defendant, and that the defendant went into the Frisco saloon, saying he wanted to get a drink of gin and a half pint of gin. That on that night he was driving a team of black horses, one of them being named "Tom" and the other "Nick;" that he did not know the defendant's name was Tom. Reese stated that when Brown came out of the saloon and started to step up on the hack one of the horses started up, and addressing the horses he said: "Whoa, Tom, you black son-of-a-bitch; I will break this crutch over you." The witness stated that he looked up and as he did so the defendant had a gun in his hand and addressing him said, "Was you speaking to me?" to which he replied, "No." On the way to the dance Reese engaged in a conversation with the defendant and spoke about a quarrel he had gotten into that night, when the defendant remarked, "I am your friend; I am with you; I like you. If you kill a dozen to-day I don't know anything about it, and they can't make me tell anything, and if I kill three or four they can't make you tell."

This evidence was objected to by the defendant; the objection was overruled and exceptions saved.

Ike Walker, another witness testifying in behalf of the State, stated that he was a hack driver in the city of Springfield on the night of the difficulty, and that he drove the defendant home from the dance between half past twelve and one o'clock on that night, and in a conversation the defendant showed him a pistol and remarked that there couldn't no son-of-a-bitch, black or white, do anything to him or run a bluff over him. This evidence was also objected to by the defendant, which objection was overruled, to which the defendant excepted.

The State further offered George W. Arnold, clerk of the criminal court, who reduced to writing the dying declarations of the deceased. Arnold states that in taking the declarations of the deceased he wrote them down as near as he could as dictated by the defendant. The State then offered the dying declarations, over the objections of the defendant, which are as follows:

"Said William W. Weir states and declares that he is now sick and nigh unto death, and is fully aware that his death is now certainly approaching him in his present condition from a mortal wound inflicted upon his person, it being a pistol wound, at the time fired upon him by one Tom Brown. The said Tom Brown was under the influence of liquor and was cursing and swearing. I told him to stop swearing and at this moment said Tom Brown started towards me, when I threw up my crutch to ward him off, when he drew a revolver from his pocket and fired upon me. He was then six or eight feet away from me; he answered when I told him to stop that swearing by saying, 'You go to hell, I will talk all I want to.' He then walked out of the restaurant quite hastily. At the time said Tom Brown was approaching me I jabbed him with my crutch, as he came toward me. He was sitting at the table when I first spoke to him, and as he arose from the table he was reaching in his pocket for his revolver; at the time said Tom Brown fired the pistol, he said 'God damn you, I will talk all I want to.'

(Signed.)

"W. W. Weir."

The defendant introduced testimony showing his good reputation as a peaceable, quiet citizen; also evidence showing his good reputation for truth and veracity.

The defendant, testifying in his own behalf, stated that he went into the restaurant on the night of the difficulty to get something...