State v. Baker

• Decision Date: 18 February 1908
• Citation: 108 S.W. 6,209 Mo. 444
• Parties: STATE v. BAKER.
• Court: Missouri Supreme Court

108 S.W. 6

209 Mo. 444

STATE v. BAKER.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. CRIMINAL LAW — EVIDENCE — RES GESTÆ.

In a prosecution for murder, all that occurred at the time of the shooting, which had reference thereto, or connection therewith, was part of the res gestæ, and hence a witness who was wounded at the time could testify as to the nature of the wound he received, and as to what he said and did following the shooting.

2. WITNESSES — IMPEACHMENT — CHARACTER OF WITNESS — ACCUSED IN CRIMINAL PROSECUTION.

Where defendant, in a criminal prosecution, testifies, he may be impeached, under the express provisions of Rev. St. 1899, § 2637 [Ann. St. 1906, p. 1566], as any other witness might be, and evidence of his general reputation for truth and veracity is admissible for that purpose.

3. CRIMINAL LAW — TRIAL — ARGUMENT OF COUNSEL — APPEAL TO PREJUDICE.

Where the prosecuting attorney, at the trial of a negro for murder, remarked, "if you allow negroes to shoot each other, how long will it be until they are shooting you white men?" and the judge said that it was improper to appeal to race prejudice, or to refer to defendant's race, and that the attorney must not repeat the remark,

but stay in the record, this sufficiently showed the court's disapproval of the remark.

4. SAME — APPEAL — NECESSITY OF EXCEPTIONS — REVIEW OF RULING AS TO ARGUMENT OF COUNSEL.

Where, in a criminal prosecution, defendant objected to remarks of the prosecuting attorney in his argument, and no exception was taken that the judge's rebuke to the attorney was insufficient, the point is waived.

5. SAME — APPLICATION FOR NEW TRIAL — AFFIDAVITS.

An affidavit, which states that the affiant left at the house of one of the jury a copy of a paper containing a statement with reference to defendant's trial, also the names of the jurors and the attorneys, but which does not state that the juror ever saw or read the paper, is no proof that the jury separated, or that any of them were guilty of misconduct.

6. HOMICIDE — EVIDENCE — SUFFICIENCY — INTENT.

Evidence, in a prosecution for murder, held sufficient to show a deliberate and premeditated assault with intent to kill.

7. SAME — DESIGN TO KILL ANOTHER.

One who, shooting at another with intent to kill him, hits and kills a third person, is as guilty as if he had killed the person shot at.

Appeal from Circuit Court, Boone County; E. W. Hinton, Special Judge.

John Baker was convicted of murder, and appeals. Affirmed.

Boyle G. Clark, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

At the October term, 1906, of the Boone county circuit court, the defendant was convicted of murder in the first degree, under an indictment charging him with said offense, for the shooting and killing of one Boss Hall. His motions for a new trial and in arrest of judgment having been overruled, defendant appealed.

After the grand jury returned the indictment in this case Hon. A. H. Waller, the regular judge of said court, was compelled on account of sickness to vacate the bench, and the case was tried before Hon. E. W. Hinton, a member of the Boone county bar, who was duly elected special judge. The defendant, the deceased, and nearly all the witnesses on both sides were negroes. The evidence for the state tended to prove that on the 16th of June, 1906, one Lewis Berry, a negro, gave a picnic near Deer Park, Boone county, to which was invited the colored population of the neighborhood. For the accommodation and pleasure of the picnickers, and his own enrichment, Berry erected dining and cooking booths and a dancing platform upon the grounds, and had for sale various table delicacies and liquid refreshments. The picnic lasted all evening, and until after midnight. At 10 o'clock, or thereabouts, the defendant raised a disturbance at the dancing platform, and used some vile and vigorous language in addressing those about him. Lewis Berry stepped up to him and told him to hush and sit down, and the defendant replied: "You damn son of a bitch, if you don't like that, you don't have to take it." Berry's wife had occasion to leave the cooking booth and get some meal to be used in connection with the fish which she was cooking, and she met the defendant outside, who struck her on the shoulder, and the two engaged in a little altercation. Soon afterwards the defendant left the grounds on his horse, Elwood Baker accompanying him, and went home. In the course of two or three hours the defendant returned to the picnic grounds, going in through an opening in a fence, and, riding up to a point within a few yards of the eating booth, he said: "I will kill all of you sons of bitches." He stopped his horse, drew a pistol, and fired three shots, one of which took effect in the head of Boss Hall, who was standing quietly near the booth, and in the act of lighting a cigar. The defendant jumped from his horse, and some one called to Lewis Berry, and said: "He will kill you. Run! Run!" Berry immediately made a dash for the woods, as did also Shannon Stark, but, while fleeing, two additional bullets fired from the defendant's pistol struck and brought both men to the ground. When Berry fell, the defendant said: "I got you." Berry managed to get further into the woods, and was found next morning concealed under a brush pile, where he was bleeding and suffering from the wound which he had received. The state's evidence further tended to prove that the defendant fired five shots from his pistol, that no one else did any shooting, and that neither the deceased nor Berry nor Stark had any weapon at the time of the shooting. After the shooting the defendant said: "I told you that I would get some son of a bitch here to-night." The deceased was taken to Columbia, and medical attention given him at the Parker Memorial Hospital until July 8, 1906, when he died from the effects of the bullet wound in his head. Dr. Walter McNab Miller testified that he made...