9 S.W. 646 (Mo. 1888), State v. Walker

Citation:9 S.W. 646, 98 Mo. 95
Opinion Judge:Black, J.
Party Name:The State v. William Walker, Appellant
Attorney:Boyd & Delaney and Travers & Payne for appellant. B. G. Boone, Attorney General, for the State.
Judge Panel:Black, J. Ray, J., absent. Sherwood, J., dissents. Barclay, J., not sitting. Sherwood
Case Date:November 12, 1888
Court:Supreme Court of Missouri

Page 646

9 S.W. 646 (Mo. 1888)

98 Mo. 95

The State


William Walker, Appellant

Supreme Court of Missouri

November 12, 1888

Page 647

Appeal from Christian Circuit Court. -- Hon. W. D. Hubbard, Judge.


Boyd & Delaney and Travers & Payne for appellant.

(1) Witnesses Graves and Newton were jointly indicted with defendant for the same offense and were therefore incompetent. 1 Greenl. Ev., sec. 363-379; State v. Underwood, 57 Mo. 40; State v. Clump, 16 Mo. 385; State v. Chyo Chiagk, 92 Mo. 395; State v. Looney, 82 Mo. 82; State v. Roberts, 15 Mo. 29; State v. Hunt, 91 Mo. 491. (2) The court erred in permitting the state to show that the defendant, William Walker, was a member of the organization known as Bald Knobbers. Such testimony would only become material and relevant after the state had introduced evidence tending to show that the organization known as Bald Knobbers was an organization formed for the purpose of (a) killing Edens or Greene or (b) to kill generally, or (c) to do such acts as reasonably included within their scope the taking of human life. Spies v. People, 122 Ill. 1; Hall v. State, 3 Lea. (Tenn.) 561; Shaffner v. Com., 22 P. F. Smith (Pa.) 60. (3) The evidence tending to show that after the killing of the said Greene and Edens, one David Walker, in the presence of the defendant, told parties there assembled what they would swear to in the event of an arrest was incompetent because (a) the conspiracy, if any was formed to kill Greene or Edens was at an end, and, therefore, acts or declarations of others, even if defendant was a party to said conspiracy, could not be binding on the defendant. State v. Ross, 29 Mo. 33; State v. Beaucleigh, 92 Mo. 490. (b) The testimony offered was not a part of the res gestae. State v. Rider, 90 Mo. 54; State v. Christian, 66 Mo. 138. (4) Instruction number 13 given on the part of the state is erroneous because it in effect informs the jury that what the defendant said against himself, if anything, is conclusively presumed to be true. State v. Carlisle, 57 Mo. 102; State v. Hill, 65 Mo. 84. (5) Instruction number 16 given on the part of the state is erroneous in that it says the jury "will" consider flight as evidence of guilt instead of "may" or "should" (State v. Griffin, 87 Mo. 608); it does not take into consideration nor call the attention of the jury to the other facts in evidence which qualify or explain the flight, and which tend to show that the flight was for some purpose other that to avoid arrest and conviction. State v. King, 78 Mo. 555; State v. Mallon, 75 Mo. 356. (6) Instruction number 27 given on the part of the state is erroneous in this: It does not clearly state that the testimony of one accomplice does not corroborate that of another. State v. Chyo Chiagk, 92 Mo. 395. (7) Defendant's first refused instructions should have been given. The corpus delicti is not established without evidence aliunde tending to prove the same. Such proof consisted in (a) the death of Charles Greene as a result of a criminal act; and (b) defendant's agency in the production of the act. State v. Dickson, 78 Mo. 438; State v. Brooks, 92 Mo. 608; Wharton Crim. Ev., sec. 325, 633; 1 Bish. Cr. Proc., (3 Ed.) secs. 1054, 1060, and cases cited; Pitts v. State, 43 Miss. 482; Com. v. Johnson, 29 Gratt. 811.

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

(1) Evidence is always admissible, for the prosecution of preparations made by a defendant or defendants, to commit a crime. Whart., Cr. Ev., (9 Ed.) sec. 753; Bur. Cir. Ev., pp. 343-365; Rex v. Hunt, 3 Barn. & Ald. 356; Campbell v. Comm., 84 Pa. St. 187, (196.) (2) Persons jointly indicted with one on trial may testify for the state if the prosecution is dismissed as to them before the defendant has gone into his defense and before the witnesses are put on the stand. R. S. 1879, sec. 1917; State v. Martin, 74 Mo. 547; State v. Chyo Chiagk, 92 Mo. 395. The state's tenth instruction to the effect, that if defendant was at, in or near, the house of Edens so as to give assistance to or ready to come to the aid of the others in the furtherance of a common design to commit murder he is guilty as charged, no matter whether he fired the fatal shot or not, or whether the common design was formed before they arrived at Edens' house or at the house just before the killing, is correct. U. S. v. Kane, 23 F. 748; State v. McCahill, 33 N.W. 599; Williams v. State, 1 So. 179; Kirby v. State, 5 S.W. 165. (4) The state's eleventh instruction to the effect that if the defendant and the others indicted with him, were engaged in a common design, formed before or after reaching Edens', and in pursuance of such common design they, or either of them, proceeded to assault and kill Edens, and during the assault and killing of Edens they or either of them shot and killed Greene, then defendant is guilty as charged, although he and such others did not bring on the assault to kill Greene and had no common design to kill him, is correct. State v. Payton, 90 Mo. 220; State v. Gilmore, 95 Mo. 554; State v. Smith 2 Strob. (S. C.) 77; Com. v. Webster, 59 Mass. 306; People v. Keefer, 18 Cal. 636. (5) The state's twelfth instruction to the effect that if defendant and those with him were engaged in a common design, defendant is responsible for the death of Greene, whether he (defendant) killed him with his own hand or not is correct. All participating in an illegal act with a common design are equally guilty. 1 Whar. Cr. L., (8 Ed.) sec. 152; Reg v. Lee, 4 Fost. and F. 63; Reg v. Caton, 12 Cox Cr. C. 624; Spies v. People, 122 Ill. 1; U. S. v. Kane, 23 F. 748; Nudd v. Burrows, 91 U.S. 426; People v. Powell, 63 N.Y. 88. (6) The state's sixteenth instruction, to the effect that flight raises the presumption of guilt and should be considerd with reference to the other evidence, is correct. State v. Jackson, 95 Mo. 623. (7) The state's twenty-seventh instruction in regard to the weight to be attached to the testimony of accomplices is correct. 1 Greenl. Ev. (14 Ed.) sec. 380; State v. Jones, 64 Mo. 391; State v. Reavis, 71 Mo. 419; United States v. Hinz, 35 F. 272.

Black, J. Ray, J., absent. Sherwood, J., dissents. Barclay, J., not sitting.


Page 648

[98 Mo. 100] Black, J.

William Walker, the defendant, and fifteen other persons, were indicted in the Christian county circuit court for killing Charles Greene on the night of the eleventh of March, 1887. The cause as to this defendant came to trial, after two continuances, and he was found guilty of murder in the first degree and sentenced to suffer the death penalty.

There was an organization in that county known as Bald Knobbers, which had its signs, grips and passwords. The members were admitted by taking a pledge to keep the secrets of the order and to protect each other, under the penalty of death. On the night of the homicide, the defendant and his father, the latter, chief, and the former, assistant chief, and other members of the band, to the number of twenty or thirty met at an out-of-the-way place, called the old smelter, which was [98 Mo. 101] in a ravine and a half mile or more from any habitation. The greater portion of the men were armed and masked, and it appears that switches had been gathered and were at hand for the purpose of whipping persons who were not in good standing with this organization. The defendant had a shot-gun and pistol and wore a mask. They remained at this place two or three hours, consulting and initiating members, and then, with the exception of three or four persons, went in a northeast direction one or two miles, when they came to a halt, until the horsemen and those on foot formed a group. They then separated because some one stated that the "Slickers" might fire into them. Most of the men ran into a small inclosure three or four hundred yards off, to a house owned and evidently supposed to be occupied by William Edens. They broke open the door but found no one in the house. The crowd then traveled in great haste a mile or more to the house of James Edens, which was a one-room house, with one window only and two doors, and about sixteen by eighteen feet in size. There were in the house James Edens, his son, William Edens, and his son-in-law, Charles Greene, their wives and two small children.

The evidence of James Edens and the three women is, in effect, that the inmates of the house were asleep; that these men on the outside aroused them by cursing and using such language as "Get out of there or we will kill you;" that the assailants at the same time broke the window glass with their guns and fired three shots into the house through the broken window; that others of them broke down the doors, entered the house, fired a dozen shots and fled, having killed William Edens and Greene and wounded James Edens. It seems some of the inmates of the house got their pistols and shot as best they could, wounding the defendant. At the time defendant was wounded, he dropped his gun and left it in the house.

[98 Mo. 102] 1. Three of the witnesses for the state, namely, William Newton, Charles Graves and Gilbert Applegate, were jointly indicted with defendant in this case. Applegate had been tried and acquitted, and the state entered a nolle prosequi as to the others that it might use them as witnesses. It was admitted that these witnesses and defendants still stood jointly indicted in another case

Page 649

for killing William Edens, and for this reason, defendant objected to these witnesses.

The objection is placed on the ground of joint interest in the prosecution. That is a different indictment from this, and an...

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