State v. Alexander

• Decision Date: 31 October 1877
• Parties: THE STATE v. ALEXANDER, Appellant.
• Court: Missouri Supreme Court

66 Mo. 148

THE STATE

v.ALEXANDER, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Andrew Circuit Court.--HON. HENRY S. KELLEY, Judge.

The defendant was indicted at the November term, 1873, of the Nodaway circuit court, for murder in the first degree in the killing of one Jacob Norrick. In December following, defendant made an application for bail to Hon. Henry S. Kelley, Judge of the court.

A trial was had upon this application, and evidence was introduced by the defendant for the purpose of removing the prima facie presumption of guilt raised by the indictment. The judge having taken the matter under advisement for several days, finally refused the application, delivering an elaborate written opinion, which concluded as follows: “Moreover, the evidence introduced by him, (Alexander) on the hearing, tending strongly to establish a premeditated killing, and being insufficient to repel the prima facie case made by the indictment, or to show that the presumption of guilt is not great, his application for bail will be denied. Let the defendant be remanded.”

In January following, this opinion was published in full in the St. Louis Journal of Law, a legal periodical which circulated in Nodaway county. At the following March term, the defendant applied for a change of venue, charging that the judge was prejudiced against him, and had prejudged his case. The principal evidence adduced to sustain the charge was the above opinion, as printed. This application was refused. A subsequent application for a change of venue on the ground that the people of Nodaway county were prejudiced against defendant, was granted, and the case was sent to Andrew county, where the motion for a change of venue to some other circuit, on the ground of prejudice of the judge, was renewed and again overruled. There were two mis-trials. Upon the third trial, at the October term, 1875, the defendant was found guilty of manslaughter in the second degree, and sentenced to imprisonment in the penitentiary for three years.

At this trial Alice Norrick, a witness for the State, testified that her father, the deceased, came home one night with cattle which he and Alexander brought from Kansas; that defendant came to her father's house next morning to get his, defendant's, gun; that he got it, and shot it off, and asked for shot with which to reload, saying he wanted to kill a rabbit; that she handed him some shot, but he said he wanted some larger; that she gave him some larger and he reloaded his gun, and went off about a quarter of a mile from the house to where her father was with the cattle; that she afterward heard the gun go off twice, and saw her father fall to the ground.

Eva Long, a witness for the State, testified that on the morning of the 19th of November, Kyler came for defendant to divide the cattle; that defendant got his gun and loaded it, and took it with him; that two or three days before this she had heard defendant say there would be trouble about the cattle; that he would take his gun and divide them his way, and if any body interfered, they would smell hell.

Frank Crook, for the State, testified: Defendant got on his horse where we were to divide the cattle; he then ordered his brother to drive a certain cow out of the herd. Norrick asked how he proposed to divide; defendant said he proposed to have the pick; Norrick said he proposed he didn't; defendant made some reply and again told his brother to drive out the cow; Norrick told defendant if he divided the cattle that way he must do it over his dead body; Norrick pulled off his coat, and defendant made some reply, did not understand what; they then went off some distance; Norrick said, stop, don't divide the cattle in that way, defendant then rose in his saddle and shot Norrick, who was about ten feet from him; Norrick was on foot; both were going in a walk; the defendant shot again, and Norrick fell dead, with a pretty large sized hole in his neck; I came up and asked defendant if he had killed Jake, (meaning Norrick); he said he was afraid he had.

Kyler, a witness for the State, gave a similar account of the killing, and added: I rode off to Maryville to get the sheriff; on my return I met defendant on the road and talked with him. He said he had killed Norrick and thought they would hang him for it; said he was ready to die, had considered the deed.

Hooton, a witness for the defense, testified that while they were driving the cattle from Kansas, defendant and Norrick had a quarrel about dividing them, defendant claiming the right to pick, and Norrick denying that that was the contract; that Norrick drew a revolver, as he spoke, and said that if defendant insisted on dividing that way, he would shoot him; that defendant said he did not want any trouble, and got on his horse and rode off; that the night before the killing he heard a conversation at Norrick's house, between Norrick and Crook, in which Norrick said that if defendant undertook to take his pick of the cattle, he would kill defendant, or defendant would kill him; that Crook said he did not think defendant would undertake to pick, but if he did, he would have to kill them all, or they would kill him; that Crook was present when the shooting took place; had been with Norrick and defendant among the cattle in the early part of the morning, but left and went to Norrick's house, and when he returned, about five minutes before the shooting, he had a revolver at his waist; that Norrick began the conversation about dividing the cattle, by asking defendant how he proposed it should be done; to which defendant said that he proposed to have his pick, as was agreed in Kansas; that Norrick said he did not so understand the agreement, and if he did pick them, he would have to pick them over his dead body; that defendant then turned and rode away, saying he did not want any fuss; that he then directed his brother to cut out a particular cow from the herd; that Norrick then threw off his overcoat and body coat, and started towards defendant, saying, “come on boys; we will have it out now!” that Crook and Kyler, who were his sons-in-law, followed him; that Norrick walked up within six feet of defendant, carrying an unsheathed bowieknife; that defendant raised his shot gun from the saddle, where it was lying, and fired without taking aim; that Norrick then advanced and threw up his right arm, with the bowie-knife in his right hand, saying that he was not afraid of his damned old shot-gun; that defendant's horse was walking away from Norrick; that when he had got within four or five feet, defendant fired a second time and killed Norrick; that Crook was about twenty feet from defendant, and was drawing his revolver at this time; that Kyler was about twenty feet from him in another direction, and was advancing on him.

Thompson Alexander, a brother of defendant, was present at the shooting, saw the knife in Norrick's hand during the quarrel, but did not see him raise it; heard him say “come on boys, let's have it out now.” The rest of the testimony of this witness agrees in the main with that of Hooton.

William Hart testified, that Crook had told him, that if defendant had not got the drop on Norrick, Norrick would have cut his damned heart out. Defendant offered the depositions of Hall and Russell, who testified that about the 5th or 6th of November, 1873, they fell in with Norrick on the prairie in Ottawa county, Kansas; that Norrick was at the time in company with Alexander and another man, driving a herd of Texas cattle to Nodaway county, Missouri; that Russell offered to purchase the cattle, when Norrick replied that he did not know whether he could sell; that he had had some trouble that morning with one of his partners, a man named Alexander, and did not know whether he could or not; that Norrick, who appeared to be angry and had a pistol in his hand, said that that was the only thing, he supposed, that would ever bring a settlement between him and Alexander; that Alexander claimed a right to have the pick of the cattle, but that was not the agreement, and he, Norrick, would kill him unless they were divided according to agreement; that he had shown or drawn the pistol on Alexander that morning, and had told him what he would do unless they settled; that Alexander was from fifty to a hundred yards away when this conversation took place. The court refused to permit them to be read to the jury.

Crook being recalled by the State, denied that he had ever had any conversation with Norrick as to what they would do in case defendant insisted on his claim; and denied having any weapon when the killing occurred. Much other evidence was offered by the State by way of impeaching the witnesses for the defense. Other facts appear in the opinion of the court.

Willard P. Hall for appellant.

1. The court committed error in overruling the first application for a change of venue, on account of the prejudice of the judge of the court. It is true, that at the time this application was made, in March, 1874, the court had a discretion in the matter; but this was a judicial, not an arbitrary discretion. This court in the absence of evidence, would suppose this discretion was properly exercised. But in this case there is evidence, and the evidence shows a strong prejudice against defendant on the part of the said judge. He had refused defendant bail, and in his refusal said that “the evidence tended strongly to establish a premeditated killing.” This opinion was reduced to writing, by the judge who gave it, and was by him furnished to the St. Louis Law Journal for publication, such a publication was inexcusable under the circumstances, and manifests such a bias on the part of the judge as to make him an unfit person to try this case. State v. O'Rourke, 55 Mo. 441.

2. The court committed error in overruling the second application for a change of venue, on account of the prejudice of the judge.

3. The court improperly excluded the...