State v. Forsha

• Decision Date: 20 June 1905
• Parties: STATE v. FORSHA.
• Court: Missouri Supreme Court

88 S.W. 746

190 Mo. 296

STATE v. FORSHA.

Supreme Court of Missouri, Division No. 2.

June 20, 1905.

1. INFORMATIONS—VERIFICATION—JURAT — OMISSION TO ATTACH SEAL.

The omission of the seal of the court to the jurat of the clerk does not invalidate the verification of an information.

2. JURY—CHALLENGES—SUFFICIENCY OF FORM.

An objection after the close of the examination of a juror, "Challenged for cause," is insufficient to preserve for appellate review any error in overruling the challenge.

3. SAME—DISQUALIFICATION—FORMATION OF OPINION.

The fact that jurors have formed and expressed opinions as to the guilt of defendant from rumor or newspaper accounts does not disqualify them, where they state that they can give defendant a fair and impartial trial on the testimony as it may be introduced before them.

4. WITNESSES—IMPEACHMENT—CONTRADICTION.

In homicide, where the principal actor in the crime was called as a witness for defendant, and denied upon cross-examination that he had stated that using violence and shooting people was the only way to win the strike in which defendant and his companions were engaged and out of which the homicide arose, it was competent for the state to contradict such testimony by showing that such statement, which was material as tending to refute the theory of self-defense relied upon by defendant, was made by the witness.

5. HOMICIDE—EVIDENCE—PARTICIPANCY OF DEFENDANT—CONCLUSIONS OF WITNESS.

In homicide, where the principal actor in the crime was called as a witness for defendant, and had testified that defendant had said nothing about killing deceased, and that there was no agreement or understanding that any violence was to be inflicted upon him, but defendant and witness were going with him for a purely innocent purpose, it was not error to exclude testimony as to whether, in shooting deceased, witness was actuated by anything that defendant had said or done.

6. WITNESSES—CREDIBILITY—CONVICTION OF CRIME.

Where a witness admitted that he had pleaded guilty to a common assault, it was proper to show, as affecting his credibility, that he had pleaded guilty of a charge of assault with intent to kill.

7. TRIAL—EXAMINATION OF WITNESS—PRESERVATION OF ERRORS.

Objections and exceptions to testimony must be made and saved at the time the testimony is given in order that any error therein may be available on appeal, and such error cannot be preserved by a mere motion to strike, made after the testimony has been submitted to the jury.

8. CRIMINAL LAW—TESTIMONY OF DEFENDANT —FAILURE TO TESTIFY IN CHIEF—CONFINEMENT TO REBUTTAL.

Where defendant rested his case in chief without being introduced as a witness, it was proper for the court to confine testimony afterwards given by him to a rebuttal of the rebuttal testimony introduced by the state, and to decline to reopen the case and permit defendant to testify as a witness in chief.

9. HOMICIDE—ACCOMPLICES—FLIGHT FROM CRIME—EFFECT.

One who aids, abets, or encourages another in the commission of a homicide, telling the latter to "shoot him, shoot him," etc., is not relieved from criminal responsibility by fleeing from the scene of the difficulty before the fatal shot is fired.

Appeal from Criminal Court, Jackson County; John W. Wofford, Judge.

James Forsha was convicted of murder in the second degree, and appeals. Affirmed.

On the 19th day of April, 1904, there was filed in the criminal court of Jackson county, Mo., by the prosecuting attorney thereof, an information against Edgar G. Bailey, James Forsha, and William Moon, jointly charging them with the crime of murder in the first degree, it being alleged in the information that the parties named killed Albert Ferguson upon the 19th day of March, 1904, in Jackson county, by shooting him with a pistol. Upon application of the defendant, the court granted a severance, and the state elected to try Edgar G. Bailey first. His trial began on the 27th day of June, and ended the 2d day of July, and his conviction of murder of the first degree was affirmed by this court (not yet reported). The state elected to try James Forsha next, and his trial began upon the 18th day of July, at the April term of the criminal court of Jackson county, and ended upon the 23d day of July, 1904, resulting in a conviction of murder in the second degree, and a sentence of 18 years in the State Penitentiary. The evidence in the case offered by the state and the defendant was substantially as follows:

In the month of March, 1904, there was a strike in Kansas City, Mo., on the part of the hack drivers' union against the hack companies, in an effort to compel them to employ only union men. The defendant Forsha was a member of the union, and he, Bailey, and Moon (both of whom are also members of the union) were taking an active part in the strike. The headquarters of the Hack Drivers' Union was located on Central street, a little to the north of Ninth street, and for two weeks prior to the date of the homicide, Bailey had been living with a woman by the name of Gertrude Biggs at the Thelma Hotel, at the corner of Ninth and Central, and the room in this hotel occupied by Bailey and Mrs. Biggs, and the saloon that was located therein, seem to have been a place of rendezvous for Bailey, Forsha, and Moon, and from which upon the night of the homicide they started out. By the 18th of March the feeling engendered by the strike had become so pronounced that the defendant and his associates seemed to have determined upon a course of violence in order to accomplish the purpose of the strike, and this determination appeared in evidence from the statements shown to have been made by the defendant and his associates, in which nonunion hack drivers were referred to as "scabs," such designation being further emphasized by the use of vile epithets, accompanied by threats of death or bodily harm. On the night of the 18th of March, 1904, the defendant Bailey, Moon, and Mrs. Biggs were together at labor headquarters, just north of the Thelma Hotel. From there they went in a hack driven by one W. E. Ferguson, who was a union hack driver, to a saloon kept by one O'Flaherty upon South Main street. After drinking a while at this saloon, the Biggs woman ordered a hack, by telephone, of the Walnut Street Livery Company, a hack company employing nonunion hack drivers, to come to 1625 Main street, which was a house of prostitution. After ordering this hack, it being directed to come to the house of prostitution so as not to excite suspicion as to the purpose of the call, the defendant, Bailey, Moon, and Mrs. Biggs went to the house of ill repute, and when the hack arrived they entered it and ordered the driver, whose name was Andrew Meyers, to take them to a roadhouse at Twenty-ninth and Southwest Boulevard. They stopped, however, on the way at Broadway and Southwest Boulevard at a saloon, at which place they had the hack driver bring them out a round of drinks. When they arrived at the roadhouse at Twenty-ninth and Southwest Boulevard, Meyers, the hack driver, was invited to go into the roadhouse by Moon, who helped him hitch his team. After they entered the roadhouse, Meyers was invited to take a drink with the party, who were standing in front of the bar. While they were standing there, Bailey asked Meyers what it was that he had on his coat, and if he had a pistol. Meyers told them that he had a star as a special officer, and that he had a pistol in order to protect himself and his passengers. At that Bailey jerked the star from Meyers' coat, passed it to Moon, who handed it to Forsha. As Meyers was starting to take the star from Forsha, who was pretending to return it, Bailey drew his pistol upon Meyers, threatening to kill him if he took the star or put it on again, and at that Meyers received two blows on the head, delivered from behind. Moon grabbed him around the neck, while Bailey took his pistol, and Forsha took from him his cartridge belt. Forsha began beating Meyers over the head with the cartridge belt, and he fell to the floor unconscious. When the hack driver regained consciousness, he tried to run from the room, but Forsha struck at him again with the cartridge belt, which was filled with cartridges, and Meyers dodged to avoid the blow, and Moon then struck him, knocking him to his knees upon the floor. At that Bailey fired at Meyers, failing, however, to hit him, and Meyers regained his feet and ran from the roadhouse. Bailey followed him from the roadhouse, and, while he was partially dazed from his previous blows and partially blinded by blood flowing from his wounds, Bailey struck him twice over the head with a pistol, felling him again to the ground and rendering him again unconscious. While Meyers was being disarmed and beaten up in the roadhouse saloon, he kept begging for mercy, saying to his assailants: "Please don't shoot me; please don't hurt me; I will go away, and you won't have to pay me for your hack fare." The answer these three men gave to these supplications for mercy were the assaults that have been described, accompanied by vile epithets which they applied to the hack driver. Leaving Meyers unconscious and covered with blood in the roadhouse yard, the party of four separated, Bailey and the Biggs woman leaving together, and Moon and Forsha together. They met, however, about a block from the roadhouse, where, in discussion of the assault, they expressed the opinion that they had killed Meyers. Fearing that they might be arrested, they again separated, but were soon together again at the Thelma Hotel. Bailey and Mrs. Biggs arrived there first and went up to their room. Bailey, after wiping the blood from the nonunion hack driver's pistol, secreted it, and one which he himself carried, behind the radiator in their room. They then went downstairs to the saloon, where, with Forsha and Moon, as usual, a round of drinks was ordered. While in the saloon, at the request of Bailey, Mrs. Biggs went...