State v. Dyer

Decision Date11 May 1897
PartiesSTATE v. DYER.
CourtMissouri Supreme Court

Appeal from circuit court, Pettis county; George F. Longan, Judge.

William Dyer was convicted of murder in the second degree, and appeals. Affirmed.

D. E. Kennedy, P. D. Hastain, and H. K. Bente, for appellant. E. C. Crow, Atty. Gen., and S. B. Jeffries, for the State.

GANTT, P. J.

At the October term, 1895, of the circuit court of Pettis county, the defendant was indicted by the name of William Dyer, jointly with one Lucy McBowers, for the murder of Thompson Walker. The court convened on the 7th day of October, 1895, and on the 8th of October the grand jury returned into open court, through their foreman, an indictment for murder in the first degree, and on the same day the defendants were brought into court, the indictment read to them, and an order made upon the clerk to make out a certified copy of the indictment; and the record shows this was done, and the copy delivered to defendant at 1 o'clock and 55 minutes in the afternoon of said October 8, 1895. On the 10th day of October, 1895, both defendants were brought into court, and they informed the court they were without counsel, and thereupon the court appointed two members of the Pettis bar to defend them. At 2:20 p. m. of the 10th the defendants were arraigned, and pleaded "not guilty." The defendant Dyer gave as his true name William Smiley. Afterwards the said cause was continued by consent to the next term. At the January term, 1896, an application for continuance was filed, and overruled; likewise a motion to quash was filed, and overruled. At the same term defendants asked for a change of venue, and their application was denied. To the action of the court in denying them a continuance and in overruling their application for change of venue, defendants duly excepted. A severance was granted, and defendant Dyer was put upon his trial, and convicted of murder in the second degree, and sentenced to the penitentiary for 99 years. From that sentence this appeal is prosecuted.

The facts are substantially as follows: At the time of the homicide, Lucy McBowers, a disreputable woman, and the defendant Dyer were living together in the city of Sedalia. On the night of September 28, 1895, in the early part of the night, the deceased, Thompson Walker, who was a young, unmarried farmer, living some 10 miles east of Sedalia, and E. R. Brown, a cousin of the deceased, were together on the streets of Sedalia, and saw said Lucy McBowers and one Mabel Jackson, and, being attracted by the actions of the women, and, as the testimony shows, induced by their suggestions, the two men, Thompson Walker and Brown, followed the women down the street towards their home, and, arriving thereat, Brown entered the house, and in a few minutes Walker followed him. Brown seated himself at or near a center table in the center of the room in which they had entered, and Walker took a seat on a trunk near by a window on the south side of the room. Brown was under the influence of liquor. Shortly thereafter defendant Dyer came in the room, and asked Lucy McBowers for his pistol. She went to her trunk, obtained the pistol, and handed it to him. About this time the woman discovered that Brown had his feet on the center table. He was requested to remove his feet from the table, but refused. Finally he removed his feet, and arose, and assumed a threatening attitude towards Lucy McBowers. Defendant Dyer stepped up, and took the quarrel off the woman's hands. Brown was struck across the face and on the side of the nose with a pistol held by Dyer. Soon after Brown received this blow, the evidence shows two shots were fired in rapid succession by Dyer at Walker, and Brown passed out of the house, followed by Walker. When Brown and Dyer engaged in the fight, Walker arose from his seat on the trunk, and came to Brown's side, and attempted to get Brown out of the house and away, and while this was going on the shots were fired by Dyer that resulted in the death of Walker. Walker ran but a short distance from the house, and fell unconscious on the walk, and was carried into a near-by hotel, and expired without making any statement. Dyer fled from the house, threw the pistol with which he had killed Walker over a fence and into a yard, and started to make his escape, but was met, halted, and arrested by a policeman, and placed in prison. The same night, while in prison, Dyer stated to those who interviewed him that he did not do the shooting, and did not know who did it. Subsequently, when placed on the witness stand, Dyer testified he fired the shots in self-defense, claiming that while engaged in the controversy with Brown, Walker came to Brown's assistance, and attacked him (defendant). There was evidence that Dyer stepped in front of Brown and Walker as they started to follow the McBowers woman from the street, and said: "I told you to stay away from my house. If I catch you there again, I'll lead you." Thereupon Brown asked, "What have you got to do with it?" Dyer's aunt took hold of him, and tried to keep him from following Brown and the deceased. When Brown and Walker reached the McBowers residence, the women invited them in. Deceased hesitated about going. He told Brown he thought they had better let them alone. The evidence also tended to show that Walker was endeavoring to take Brown, who was under the influence of liquor, out of the house, at the time he was shot by defendant Dyer. Defendant testified in his own behalf that he killed Walker in self-defense.

Various points have been made for a reversal of the judgment. These will be examined and discussed in their order.

The indictment is sufficient, and the arraignment was in due form. In this connection it might as well be noted that the point that the copy of the indictment served on defendant varied in some immaterial respect from the original on file cannot avail defendant. The record shows that he pleaded to the indictment without suggesting the variance upon which he...

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