State v. Church

• Decision Date: 20 November 1906
• Parties: STATE v. CHURCH.
• Court: Missouri Supreme Court

98 S.W. 16

199 Mo. 605

STATE v. CHURCH.

Supreme Court of Missouri, Division No. 2.

November 20, 1906.

1. CRIMINAL LAW—CHANGE OF VENUE.

Under Rev. St. 1899, § 2597, providing that when a change of venue is granted on account of the prejudice of a judge the judge of the court shall set the case for trial and notify the judge of some other circuit to try the cause, defendant was not prejudicially affected by the mere fact that the judge of the other circuit was in the courthouse at the time he was called to try the case and then proceeded with it.

2. SAME—PROVINCE OF COURT AND JURY—DEFENSE OF INSANITY.

Under Rev. St. 1899, § 2603, providing that if a defendant becomes insane after indictment, and the court has reason to believe that he has so become insane, a jury shall be summoned to try the question of sanity, the court may refuse to summon the jury after hearing evidence convincing it that defendant was not insane.

3. SAME — APPEAL—PRESUMPTIONS—CONDUCT OF TRIAL—PRESENCE OF DEFENDANT.

Where the record shows that defendant was present in court when the case was called for trial, was arraigned, and pleaded not guilty, and that after the information was amended he again appeared and waived formal arraignment, it will be presumed on appeal that he was present when a motion was made to determine his sanity.

4. JURY—CHALLENGE TO THE ARRAY—FORM AND REQUISITES.

A challenge to the array must be in writing.

5. SAME—COMPETENCY OF JURORS—FORMATION OF OPINION.

Where jurors on their voir dire testified that they had formed opinions by reading the newspapers containing defendant's alleged confession, but after some questioning by the court answered that they had no prejudice preventing their weighing the testimony, and that if reasonably satisfied that defendant was insane would so say in their verdict, they were competent.

6. CRIMINAL LAW—EVIDENCE—CONFESSIONS.

A confession was not inadmissible as involuntary because made after defendant's arrest and while in actual custody, where the preliminary proof showed that defendant was informed of his rights and that the statement would be used against him, and that no promises were offered or threats made.

7. SAME.

A confession was properly admitted in evidence without first permitting defendant to give evidence of his mental condition at the time it was made, such evidence going to the weight, and not the admissibility, of the confession.

8. SAME—EVIDENCE—INSANITY—HEARSAY.

On trial of defendant for killing his foster parent, evidence of what the wife of the deceased, whom defendant had also killed, had formerly said concerning defendant's sanity, was properly excluded as hearsay.

9. WITNESSES—CROSS-EXAMINATION—DISCRETION OF COURT.

Permission to a party to cross-examine his own witnesses is discretionary with the court.

10. CRIMINAL LAW—EVIDENCE—ADMISSIBILITY.

On prosecution for homicide, on defense of insanity it was not error to allow certain physicians to visit the jail and examine defendant and give evidence for the state as to his mental condition.

11. SAME—CONFESSIONS.

Where the prosecuting attorney fully informed defendant of his rights and notified him that any thing he said with respect to the homicide would be used against him, it is not error to permit the prosecuting attorney to testify to the conversation.

12. SAME — CAPACITY TO COMMIT CRIME — DRUNKENNESS.

An instruction that drunkenness was no defense to crime was not erroneous.

13. SAME — INSTRUCTIONS—APPLICABILITY TO EVIDENCE.

The statement in defendant's confession that a short time before the alleged crime he drank a "lot" of blackberry wine, but not saying how much or what effect it had on him, was too indefinite and unsatisfactory to authorize an instruction on the effect of drunkenness.

14. SAME—HARMLESS ERROR—INSTRUCTIONS.

Where there was little or no evidence of intoxication on the part of the defendant, and there was no excuse offered as a defense save insanity, it was not reversible error that the court instructed that drunkenness was no defense.

15. SAME — TRIAL — CONDUCT OF COUNSEL — ABUSIVE LANGUAGE.

Where on the prosecuting attorney referring to defendant as a "culprit" he was cautioned by the court, and corrected his statement by saying "the accused then, the accused on trial," the remark was not prejudicial.

16. SAME — NEW TRIAL — GROUNDS — NEWLY DISCOVERED EVIDENCE—PROBABLE EFFECT.

On prosecution for homicide, the defense being insanity, it was not error to refuse motion for new trial for newly discovered evidence tending to show the early history of defendant and the past and present condition of his mother and of her other children, where a large amount of such testimony had been introduced and the newly discovered evidence would probably not produce a different result.

Appeal from Circuit Court, Warren County; Nat M. Shelton, Judge.

William E. Church was convicted of murder in the first degree, and appeals. Affirmed.

Claude R. Ball and P. H. Cullen, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, P. J.

Under an information duly filed in the office of the clerk of the circuit court of Warren county by the prosecuting attorney of said county, charging the defendant, William E. Church, with murder in the first degree in killing one Henry W. Yeater at said county on the 31st day of August, 1903, by cutting his throat with a razor, he was convicted in said court at its June term, 1904, of murder in the first degree as charged, and his punishment fixed at death. He appeals.

At the time of the homicide the defendant was about 22 years of age, and had lived with deceased and his wife, Mrs. Yeater, most of his life, who had taken him when a boy about 9 years of age to raise. They lived upon a farm about seven miles north of Warrenton, in Warren county. When the defendant was about 14 years of age he was charged with some petty offenses, among which was the theft of a watch, to which he pleaded guilty, and was sent to the State Reform School for boys at Boonville, where he remained about one year, when he was pardoned and returned to his home with the Yeaters. On Saturday, August 29, 1903, defendant attended the Old Settlers' Reunion in Warrenton, and was seen by many persons who were also in attendance, talked with them, and mingled in the crowd "just like anybody else." On this same day defendant went to see certain persons, and endeavored to get them to assist him to put a roof on the house which was occupied by Mr. and Mrs. Yeater; he purchased $60 or $70 worth of roofing, paid for same, and received some change back, indeed transacted the business in a businesslike manner. On the next day, Sunday, the defendant attended preaching at a neighborhood church, and did not return home until about 11 o'clock p. m. What happened at the Yeater home that night is not known except through the confessions and statements made by the defendant thereafter. The next afternoon the rural letter carrier found a letter in the mail box near the Yeater home telling of the trouble there the night before, which letter was identified as being in the defendant's handwriting. Before this letter was written, the defendant changed his clothing, concealed his bloody pants and shoes in a corn field some distance from a private road, prepared a lunch, took his picture with him, packed his grip, and started to walk to the Missouri, Kansas & Texas Railroad, which was on the extreme south side of said county. Defendant crossed the Wabash Railroad tracks in going south that morning, selected a road through the woods, and was seen eating his lunch about noon. He first went to a station called Gore, but finding that there was no agent there, and that the train which he desired to take did not stop there, he walked to another station two or three miles distant, named Case. The agent at Case was engaged in other business besides representing the railroad company, and defendant went to his store and purchased a ticket to St. Louis. While waiting for his train, defendant went to a corn field close by, where he changed his clothing, and returned about half an hour before his train was due. The stations of Gore and Case had no telegraph nor telephone communications. Defendant took the 2:30 train that afternoon for St. Louis, and as soon thereafter as possible left St. Louis for Chicago. He was heard of in Chicago, in Milwaukee, and in Cleveland. While in Chicago he joined a labor organization or agency and secured employment on the Chicago, Milwaukee & St. Paul Railroad, and afterwards on the Great Western Railroad. At Cleveland, defendant enlisted in the United States navy, and in a short time was sent to a post near the city of Philadelphia. While in Chicago, defendant adopted the name of Buescher, and under this assumed name he was known in the various other cities where he worked, and also in the marine service. Under this assumed name, defendant wrote to the prosecuting attorney, to a neighbor, and to a lady in Warren county. These letters were the means of the officers discovering where he was and of his arrest. In March, 1904, Detectives Gallagher and Lynch went to the barracks where defendant was stationed, and in company with Jack Young arrested defendant. When arrested, Mr. Young asked defendant if he knew him, and defendant replied that he had never seen him before. A few days later these officers searched defendant and found in his pocket a copy of a Philadelphia newspaper giving an account of the arrest of defendant and of the crime with which he was charged. After notifying him of his rights and of his privilege to say nothing, and assuring him that whatever he said could be used against him, defendant made a written confession to these officers, which was duly signed and witnessed. Said confession is as follows:

                             "Philadelphia, March 29, 1904
                

"I, William E. Church, of Warrenton, Missouri, of my own free will and accord, hereby make the...