State v. Barnes

• Decision Date: 03 June 1918
• Docket Number: No. 20728.,20728.
• Citation: 204 S.W. 264
• Parties: STATE v. BARNES.
• Court: Missouri Supreme Court

204 S.W. 264

STATE v. BARNES.

No. 20728.

Supreme Court of Missouri, Division No. 2.

June 3, 1918.

Thomas J. Rowe, Jr., and Henry Rowe, both of St. Louis, for appellant. Frank W. McAllister, Atty. Gen., and George V. Berry, Special Asst. Atty. Gen., for the State.

WHITE, C.

The appellant was convicted of murder in the second degree, and his punishment assessed at 40 years' imprisonment in the penitentiary. He was charged with the murder of one Aaron Johnson, in St. Louis, Mo.

Johnson was a motorman employed by the United Railways Company, and on the night of October 24, 1916, while operating a car on the Natural Bridge Line, stopped his car at the corner of Seventh and Wash streets for the purpose of throwing a switch. This was some time between 12 o'clock and 1:15 a. m. Johnson got off the car, went around in front for the purpose of throwing the switch, and while there was shot. His assailant fired four shots into his body, from the effects of which he died at 6:25 the same morning. The assassin was seen by an officer, John Hutton, who was on the car at the time. This officer, when he heard the shots, ran out of the car and saw the motorman lying in the street; a man, apparently the one who fired the shots, was running across the southwest corner of Seventh and Wash streets, 30 or 40 feet away. He described the man as a tall, slim fellow, with dark clothes and a little plaid cap. He did not see his face; it was too dark to identify anybody at that distance. He fired several shots at the fleeing man. An automobile, apparently waiting for the assassin, took him in and he made good his escape. The conductor on the car got off after the officer, and saw the motorman on the ground after he was shot, but did not see the running man. The only identification of the murderer appears in the dying declaration of Johnson, made a short time after he was shot and after he had been taken to the hospital. This will be noticed further in the discussion of the admissibility of that statement.

I. Appellant claims that the trial court committed error in permitting certain witnesses to testify to the alleged dying declarations of Johnson, the deceased.

In order that such a declaration may be competent as evidence, it is necessary to prove that it was made under the belief that death was imminent and there was no hope of recovery. It is not necessary that it state in specific terms that the declarant does not expect to recover; If it satisfactorily appears in any mode that the statement was made under the sanction of expected and impending dissolution it is admissible. State v. Craig, 190 Mo. loc. cit. 340, 88 S. W. 641; State v. Lovell, 235 Mo. 357, 138 S. W. 523; State v. Dipley, 242 Mo. loc. cit. 477, 147 S. W. 111; State v. Finley, 245 Mo. loc. cit. 473, 150 S. W. 1051; State v. Kelleher, 201 Mo. loc. cit. 637, 100 S. W. 470; State v. Crone, 209 Mo. loc. cit. 327, 108 S. W. 555; State v. Livingston (No. 20732) 204 S. W. 262, decided at this term of this court and not yet officially reported.

Johnson was shot shortly after midnight, the precise time does not appear from the evidence, and died at 6:25 the same morning. He was taken to the hospital soon after he was shot, examined by two or three physicians, each of whom thought he had little chance of recovery. After he had been in the hospital a short time a conductor working for the same company, John W. Brewer, and his wife, together with the wife of the wounded man, arrived at the hospital. In answer to Brewer's question Johnson said he was shot in the spine and shot bad; that he was "paralyzed from here down." He said he was glad that Brewer and his wife had come; he desired them to be witnesses and he wanted his wife to get his share of all the property which was coming to him. He said he never had made a will, and did not have time now. He then asked to have his lodge physician called, and his wife went out of the room to telephone that physician. After she left the room he said to the witness Brewer and his wife, "Well, the poor little girl is going to be left a widow. Tell the boys at the sheds to move up on me." It was the custom, as the witness explained, when a man at the car sheds quit, for those back of him to move up on the list. Fred Drane, the conductor on Johnson's car, arrived presently and in his presence Johnson said, "You can tell the boys at the car sheds to move up on me; I will never turn another controller." When his wife was again out of the room a little later he requested Drane to go after his sisters. He said, "You will have to hurry or you will be too late." Drane said, "You don't think it is as bad as that do you?" and Johnson replied, "Yes; the little girl is going to be a widow," and then added, "Don't tell my wife about this; she is hysterical now."

This evidence is entirely sufficient to justify the trial court in determining that the declarant had no hope of recovery. The facts above stated, showing the condition of the declarant's mind, in many respects are very similar to the facts shown in the cases above cited. At one time when his wife was present he made the statement that he was going to try his best to get well. This would not prove that he entertained such hope of recovery as would make his declaration incompetent. State v. Vest, 254 Mo. loc. cit. 468, 162 S. W. 615; State v. Parker, 172 Mo. loc. cit. 201, 72 S. W. 650.

II. Another objection is made to this dying declaration on the ground that it lacks definiteness in identifying the defendant as the man who fired the shots. Johnson's statement in the presence of Brewer, Drane, and his wife as to the identity of the person who shot him was related in this way by the witnesses: According to Drane, he was "the man he had arrested last summer for robbing his home"; and Brewer said, "The man he had arrested last spring for robbing his house"; while Mrs. Johnson put it, "The man I had arrested for robbing my house," using her husband's language. These statements were made at different moments to these different witnesses. It was shown by other witnesses that Elmer Barnes had been arrested on charge of burglary on complaint of Johnson in June of that year. Two witnesses for the defendant, police officers who talked with Johnson before he was taken to the hospital, put it in another way. Charles Lhamon, one of the officers, asked Johnson who shot him and Johnson replied, "I think it was Elmer Barnes." The other officer, Kraeger, said he asked Johnson who shot him and he replied, "I don't suspect any one but Elmer Barnes."

These statements, indicating mere suspicion instead of knowledge of the murderer's identity, made to the officers at a different time from those offered by the state in connection with the dying declaration, would not render that declaration incompetent; they would affect only its weight and credibility—a matter for the jury.

III. Complaint is made of a cautionary instruction given by the trial court, relating to the credibility of witnesses, which concluded with this direction:

"In this connection you are further directed that if you believe that any witness has knowingly sworn falsely to any material fact you are at liberty to reject all or any portion of such witness' testimony."

The argument is that this authorizes the jury, if they...