State v. Blackburn

• Decision Date: 16 February 1918
• Docket Number: No. 20332.,20332.
• Citation: 273 Mo. 469,201 S.W. 96
• Parties: STATE v. BLACKBURN.
• Court: Missouri Supreme Court

201 S.W. 96

273 Mo. 469

STATE v. BLACKBURN.

No. 20332.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Appeal from Circuit Court, Camden County ; C. H. Skinker, Judge.

Charles Blackburn was convicted of murder, and he appeals. Reversed and remanded for a new trial.

Defendant was charged by information with the murder in the first degree of Jasper Francis on November 10, 1915. He was convicted, and his punishment fixed by the jury at life imprisonment. He has appealed.

The evidence for the state tends to show the following facts: Both the deceased and defendant were farmers and stockmen, with farms on the same road leading out of Stoutland, the defendant's being about 2½ miles from town, and that of Francis being about 4 miles further on. The deceased was a bachelor, about 46 years old, in comfortable circumstances financially, a director in the bank at Stoutland. The defendant was about 43 years old. His farm contained 260 acres and was worth about $7,500. His wife owned a house and about 5 acres of land in town, where they lived. He spent much of his time on the farm, often passing the night there. His farm was incumbered for $4,000 and some interest. The home in town was incumbered for $2,000, and he owed the bank about $3,000 in notes signed by himself and wife. The bank was pressing him for a payment of at least a portion of that money, About October 30, 1915, defendant and deceased made a trade by which deceased sold and delivered to defendant cattle for $1,400, and received in part payment thereof a span of mules at $200. It seems that defendant did not then pay the balance of $1,200 due on the cattle. Rolla Smith, assistant cashier of the bank, testified that in the latter part of the week preceding the death of Francis the latter appeared in the bank, asked the amount of the defendant's indebtedness to the bank, and was informed that it was about $3,000; whereupon Francis said:

"Charley has sold his farm and has got the paper and you boys want to get your money. I know he has sold his farm, because I wrote up the note for him and check a few days ago. The note is for $3,000 and the check for $1,500. He has sold his farm to Joe Givins, and is receiving this note and check for $1,500, and he is assuming $3,000 against the land, making $7,500. Your note will be due the first thing, and you boys want to get in and get your money."

On Sunday, November 7, the defendant shipped the cattle to the St. Louis market, ordering the returns to be sent to Lebanon instead of to the bank at Stoutland. On the next day Francis, not knowing that the cattle had been shipped, presented to the bank for payment a check drawn in his favor by the defendant for $1,200. It was not paid for lack of funds to the defendant's credit. It was left with the bank for collection. On the next day, Tuesday, November 9, Francis met Evans, the cashier of the bank, at a sale in the country, and was informed by the latter that the defendant had shipped the cattle. That evening, about sundown, Francis was in Stoutland. Evans was a witness for the defendant. On cross-examination he was asked what Francis said and did at that time with reference to the collection of that check. Defendant's counsel objected on the ground that it called for Hearsay evidence which was not a part of the res gestæ, and not a dying declaration. The objection was overruled, and the witness stated that he and the deceased talked about why the returns for the cattle were not there, and that deceased stated that he would wire the commission company to find if the cattle had been sold and where the returns been sent, and that deceased went to the station to see the agent, saying, after seeing the agent, that he would go by Blackburn's and tell him that something had to be done. Over similar objections by defendant, the state was allowed to prove by Reube Winfry that deceased spoke of the $1,200 check, and said that he thought that Blackburn was trying to chest him out of the cattle; and was allowed to prove by Rolla Smith, assistant cashier of the bank, that deceased in the bank, on November 9, said that if the returns did not come by morning he would garnish everything that Blackburn had; and was allowed to prove by John Fry, station agent at Stoutland, a conversation with Francis as follows:

"Q. What is it? A. He asked me if Charley Blackburn had shipped the car of cattle. I told him he had; that he had shipped them on the Sunday previous. Then he asked me who he had shipped them to. I told him to Clay-Robinson & Co. He then wanted to wire to Clay-Robinson & Co. in regard to the returns. The hour was late, and I recommended him, on account of the lateness of the hour, to wait or put it off until morning, when probably the returns would get in; that it would not be necessary to wire, and, even if he did, it would be about the same time in the morning before the message would be delivered if it was sent at that late hour of the day. He said then he believed he would do that, and that he would go over and see Virgil Evans at the bank. Q. Did he state anything else? Is that all of his statement to you at that time? A. No, sir; that was not all that was said. Q. Did he state why he was anxious to wire to Clay-Robinson & Co.? A. He told me he had exchanged the cattle with Charley Blackburn for $1,200 and two mules; that he held Blackburn's check for $1,200, and the funds were not yet in the bank to pay the check; that Blackburn had said to him he would arrange for the money, and that it would be in there in a few days. He said as long as the cattle were running upon Blackburn's land he did not care, `but since he has shipped them I am going to do something about it.'"

And by Charles Winfry a conversation with Francis as follows:

"Q. Yes, sir. A. When we started from the sale he says: `Charley Blackburn has shipped those cattle, and I did not know anything about it until I got down here to the sale.' He said: `Virgil Beams told me.' He said: `He was at my house this morning, and he never told me a word about it. He said he was going to Joe Givins' to see about the money that Joe had sent, and sent to the wrong place; it is a funny thing to me that he don't know where Stoutland is at.' He says: `I am going on to town and see if that draft has come; if not, I am going back by Charley Blackburn's and tell him what is what; I am not going to lose my money on those cattle.' He says: `I will garnishee everything he has got before to-morrow night if I don't get the money; all I have got to show is the two little mules and this check' that he had up at the bank. He said Charley Blackburn was talking of buying his place, but he could not pay for what he already had."

We have put in italics portions of that evidence to which we will call special attention in the opinion.

The last seen of Francis alive was as he was on his way home just as he was leaving town that evening. About 12 days later his dead body was found about 20 yards from the road, between the defendant's house and town, covered with leaves. There was a shot in the head, and the skull was fractured by some other weapon. There was clotted blood by the roadside. Mrs Kissinger, who lived near the place, testified to hearing a gun shot about the place where the death occurred, on the morning of November 10, about 5 o'clock.

Claude Castile and his wife testified that they lived next door to the defendant in town, and that on the morning of November 10, about 6 o'clock, they saw defendant in his yard in town, and that, in reply to a question, he told them that he had come in town that morning.

On November 11 the defendant appeared at the bank, having in his possession a note for $3,000 dated October 30, 1915, due 60 days after date, a check for $1,500 dated November 2, 1915, and a check for $1,200, dated November 6, 1915. All those instruments were payable to himself, and purported to be signed by Francis. He exchanged with the bank the $1,200 check signed by Francis for the $1,200 check signed by himself, which was then held by the bank for collection. He exchanged the note for $3,000 signed by Francis for his own notes to the bank. The $1,500 check signed by Francis was put to defendant's credit, thereby overdrawing the account of Francis, and a few days after he checked out the most of it.

Soon after the discovery of the dead body, the coroner's inquest was held. The examination of witnesses at that inquest was conducted by state's counsel, who suspected defendant of the offense. The defendant was subpœnaed and sworn as a witness and submitted to, a long and adverse examination. Everything he said was in answer to such questions. He was without counsel, and was not advised of his right to refuse to answer questions, nor was he advised that his answers might be used against him. He was there treated as a defendant. At the trial the state was permitted to prove that the defendant, in answer to questions at such inquest, stated that he gave the check for $1,200 to Francis for cattle, and also said that the two $1,200 checks were given as a bonus in a land deal. Defendant objected to such evidence on the ground that such statements were not, under the facts shown, voluntary. The objection was overruled. The defendant, on the trial, testified that about October 30, 1915, he sold his farm to Francis for $11,500, to be paid thus:

                Balance on cattle................. $ 1,200 00
                Check ............................   1,500 00
                Note .............................   3,000 00
                Francis to assume on land.........   3,000 00
                " " give mortgage for.............   2,000 00
                                                   __________
                                                   $10,700 00
                

—and that Francis was to pay balance in money. He stated that a few days after such deal Francis wrote, signed, and delivered to him the note for $3,000 and the check for $1,500; that Francis made a memorandum of the contract, but that it was not signed by...