Ex Parte Burgess

• Decision Date: 03 July 1925
• Docket Number: No. 26501.,26501.
• Citation: 274 S.W. 423
• Parties: Ex parte BURGESS.
• Court: Missouri Supreme Court

274 S.W. 423

Ex parte BURGESS.

No. 26501.

Supreme Court of Missouri, in Banc.

July 3, 1925.

Application by John Burgess by habeas corpus for bail. Writ denied.

Munger & Munger and J. W. Farris, all of Bloomfield, for petitioner.

C. A. Powell, Pros. Atty., of Bloomfield, opposed.

WALKER, J.

This is an application by habeas corpus for bail. A complaint under the provisions of section 3812, R. S. 1919, was filed before a justice of the peace by the prosecuting attorney of Stoddard county, charging the petitioner, John Burgess, with murder in the first degree. The justice of the peace proceeded, upon the filing of this complaint, to examine the witnesses for the prosecution and the accused—the latter not testifying. It appeared to the magistrate that an offense had been committed as set forth in the complaint, and that there was probable cause for charging the accused therewith, and, the offense not being bailable, an order was made committing him to the county jail, there to be held until discharged by due course of law.

An application for habeas corpus to admit the accused to bail was made to the circuit judge of Stoddard county, who, after a hearing, denied the writ and remanded the accused. Thereupon the latter filed a like application for bail in the Supreme Court, and a hearing was had upon a transcript of the testimony of the witnesses before the magistrate, the oral testimony of the accused under oath before this court, and after the arguments of counsel a determination of the case was had as indicated in this opinion. The compelling facts concerning the tragedy in which the petitioner is charged with being a participant may be briefly told:

William Miller, the father of the child killed, was subtenant on land belonging to the petitioner. The latter had let the tract of land to one Dink Lucas, who had sublet the same to Miller. A spirit of antagonism had arisen between Miller and Lucas, growing, according to Miller's testimony, out of controversies about work, but due, as shown by other evidence, to the alleged destruction of some illicit stills by Miller for the manufacture of liquor on land owned by the petitioner. This resulted in a severance of the business relations existing between Miller and Lucas, which terminated Miller's tenancy, and he was, at the time of the murder of his child, preparing to remove from the land. There is scant oral testimony, but strong circumstances, indicative of the fact that the petitioner was in active sympathy with Lucas in this controversy.

On the night of April 20, 1925, while Miller was away at a neighbor's making arrangements for removal from the land, the tragedy occurred. Soon after dark that night Mrs. Miller, his wife, with her half-grown daughter, Marie, and her little six year old daughter, Pauline, were sitting on the porch of their home, fronting the public road. There was at that hour sufficient light to discern objects on the road. Mrs. Miller's graphic recital best portrays what subsequently occurred. In effect she says:

"I saw an automobile coming south along the public road that ran in front of the house, within 60 feet of where I was sitting. I had Pauline in my arms; as the car passed, four or five shots were fired from the rear seat. The car picked up speed after it passed the house as it went south. I arose to take my little girl into the house, and when I attempted to place her upon her feet she fell from my arms upon the floor. Marie picked her up, and found that one of the bullets fired from the car had struck her in the head and had killed her. I could not see who or how many persons were in the car, but I saw the blaze from the gun issuing from the rear seat."

That night, as Miller was returning from the neighbor's and was several hundred yards south of his home, the view being unobstructed, he saw a car passing his house and heard four reports of gunshots, accompanied by four flashes of light. Before the car reached him, he sprang behind some bushes on the roadside, and as the car passed him he recognized John Burgess—the petitioner—and Dink Lucas, as the sole occupants of the car. Burgess was at the wheel and Lucas was sitting on the back seat. As Miller went homewards he met a neighbor, Jim Harris, and his wife, who told him that his little daughter, Pauline, had been shot and killed. Harris and his wife were at the time of the shooting driving along the road about 300 yards in the rear of the car as it passed Miller's house, and they saw the flashes of light and heard the shots. They stopped a few minutes at Miller's, learned of the killing of the child, and then drove southward along the road the car had gone, notifying the neighbors as they went, and endeavoring to overtake the car. The tracks of a car having tires of the description of those found on Lucas' car were traced along the road passing Miller's house, around a section road which terminated at Lucas' house. Horton, Hargett, and others saw a car without lights, soon after the shooting, pass their houses going south at a high rate of speed. It had two occupants, one at the wheel, and another on the rear seat. About two hours before the shooting, Burgess, the petitioner, in a conversation with John Horton, said that:

"Miller had destroyed some mash barrels of his, and if he [Miller] had been found there at the time, they would have burnt him on them; that Lucas had a pistol loaded all around, and that it would fire every time."

Thus much for the facts.

I. Counsel for the petitioner have greatly facilitated the disposition of this case by conceding that the evidence is sufficient to authorize his being held for trial, but that he is nevertheless entitled to bail. This concession results in the passing approval of matters which otherwise might have demanded discussion and determination.

Our judicial horizon, therefore, is limited to the consideration of the sufficiency of the evidence. More definitely declared, Is the evidence adduced at the hearing before us of such a nature as to authorize its classification as proof evident or presumption great that the petitioner is guilty as charged of a capital offense? This was the test declared in Ex parte Verden, 291 Mo. 552, 237 S. W. 734. The writer did not agree to the conclusion reached in that case as to the construction placed upon the rulings of this court in Ex parte Claunch, 71 Mo. 233, and State ex rel. Mollineaux v....