State v. Boesel
| Citation | 64 S.W.2d 243 |
| Decision Date | 28 October 1933 |
| Docket Number | 32302 |
| Parties | STATE v. BOESEL et al |
| Court | United States State Supreme Court of Missouri |
Carter M. Buford, of Ellington, Thos. A. Mathews, of Flat River, and Benj. H. Marbury, of Farmington, for appellants.
Roy McKittrick, Atty. Gen., and William W. Barnes, Asst. Atty Gen., for the State.
COOLEY, Commissioner.
By information filed December 1, 1930, in the circuit court of St. Francois county, defendants were charged with murder in the first degree for the alleged killing of one Sam Doss in said county. They were tried jointly, both were convicted of murder in the second degree, and the punishment of each was assessed by the jury at thirty-five years' imprisonment in the penitentiary. After their joint motion for new trial had been overruled, they were duly sentenced in accordance with the verdicts and appealed, their appeals being briefed and presented jointly in this court. They challenge the sufficiency of the evidence and complain of certain alleged errors in the trial.
Doss was shot and killed in his home on the night of September 16 1926, between 9:30 and 10 o'clock. The state's theory was, and its evidence tended to show, that the killing was done by Melvin (Kid) Williams and his brother, Charles Williams, pursuant to and in consummation of a conspiracy thereto on the part of said Williams brothers and the defendants Boesel and Walker, the fatal shot having been fired by Melvin Williams. The state's evidence tended to prove the following:
Mrs. Doss, widow of the deceased, testified that, in the evening of September 16th, she and her husband went from their home in Desloge to see her mother at Elvins, returning after dark. As they passed through the town of Flat River, several miles from Desloge, on their return, she noticed an automobile containing two men, one of whom she recognized as Bart Walker. She thought the men were watching the Doss car. She and her husband proceeded to their home, arriving about 9:30. Her husband ate some lunch which he took from the icebox and was standing wiping his hands on a towel near a window when a shot was fired through the screen (the window being raised) by some person just outside the window. Mr. Doss 'crumpled down.' He had been wounded in the face and neck by several shot or bullets (Mrs. Doss said seven struck him, one of which penetrated the eye). Only one shot was fired. Mrs. Doss ran out immediately after the shot was fired, but saw no one, the night being dark.
Charles Williams, upon whose testimony the state's case principally rests, especially as against Boesel, testified in substance and effect as follows: He had been at Siloam Springs, Ark., and a few days before the killing of Doss had come to Flat River, Mo., where his brother Melvin lived, in response to a telephone request from the latter. There he met his brother and the two defendants. He had known defendants for some years. Melvin Williams and the defendants asked him to kill or help kill Doss, offering to pay him $ 500 therefor. On direct examination he testified he was offered the $ 500 'to knock him off, to kill him.' On cross-examination he said the money was paid him for killing or assisting in killing Doss. He testified that Boesel and Walker both told him they would pay him said $ 500; that they and Melvin Williams had been engaged in illicit liquor operations to which Doss was strongly opposed, and Doss had been 'interfering with their business,' and 'if he wasn't put out of the way he would be elected sheriff at the next election and would shut it all off,' which was the reason they wanted him killed. Witness testified that he at first refused, but after some urging agreed to the proposition. The other three, Melvin Williams and these defendants, paid him $ 300 of the promised money, and the four laid their plans. It appears that the agreement was reached and the plan of action mapped out on Sunday or Sunday night, September 15th. Witness understood that Boesel and Walker were to 'locate' Doss, and they did locate him Monday night (the 16th) 'on the road towards home, over in Flat River somewheres,' and witness' brother Melvin came and told him. Thereupon Melvin got his automobile and the two Williams brothers drove to Doss' house. Melvin got out of the car twenty yards or so from the house with 'a shotgun, a riot gun,' in his hand. It had been arranged between the brothers as they approached the house that Melvin would kill Doss, and that they would then meet at a point about two blocks from Doss' house. Witness drove to that point and after waiting five or six minutes Melvin joined him and they drove away together. About 2 o'clock that night witness was met by Walker, pursuant to arrangements made before the killing, at a point on the highway a half mile or so from Desloge, and Walker took him to Cuba, Mo., leaving him there about daylight. Walker was seen in his car by another witness between 7 and 8 o'clock in the morning of September 17th, at Potosi, which is not far from Desloge and between that place and Cuba. He was coming from the direction of Cuba.
Williams further testified that after the killing Walker paid him $ 150 more, making $ 450 he received in all. It is not shown where the payment was made, probably on the trip to Cuba, as the witness did not testify to meeting Walker after the killing, except on that trip. It appears that Charles Williams left the state immediately after the killing. At the time of the trial he was serving a twenty-five year sentence in the Oklahoma penitentiary for robbery, having been brought from that place to testify. Melvin Williams was dead when this case was tried.
A woman who went by the name of Mary Boesel and who had lived with defendant Boesel for about three years preceding the homicide, though not married to him, testified for the state that he and Walker had been engaged in the bootlegging business, 'hijacking people, taking their whisky away from them and taking and selling it to bootleggers and getting a split out of it,' and that two or three weeks prior to the killing of Doss she heard them say they were going to get rid of Doss because 'he was always raiding their bootlegging places.' At the time of the trial Mary Boesel was herself under sentence for robbery and was otherwise rather thoroughly impeached by proof of contradictory statements, threats of testifying falsely against Boesel unless he gave her money and some diamond rings, and proof of general bad reputation.
Georgia Herzog testified to hearing Walker, about May, 1926, threaten: 'I'm going to kill Sam Doss; I'm going to get him before he gets me.' There was testimony of other witnesses as to circumstances having a tendency, though rather indirect, to corroborate some portions of Williams' testimony.
Roy Presnell, sheriff, testified that he brought Walker back from Larrimore, Wyo., in September, 1930, and that, on the train en route from Larrimore, Walker made a confession, which the witness related. The confession was offered and admitted only against Walker, the court at the time specifically telling the jury that it should not be considered as against Boesel, but only as it might bear upon the guilt or innocence of Walker. The confession need not be set out in detail. It was an acknowledgment of his own guilt and substantially corroborated Williams' testimony as to the conspiracy, the killing and the reasons therefor, and that he (Walker) took Williams to Cuba thereafter.
Defendants both testified, denying they participated in or had any knowledge of a conspiracy to kill Doss, or that they had anything to do with the killing, and Walker denied having made any confession to Presnell. They also denied having engaged in illicit liquor operations and having made threats against Doss as had been testified by Williams and Mary Boesel.
I. When the case was called...
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