State v. Ferguson

• Decision Date: 16 May 1919
• Docket Number: No. 20684.,20684.
• Parties: STATE v. FERGUSON.
• Court: Missouri Supreme Court

212 S.W. 339

278 Mo. 119

STATE v. FERGUSON.

No. 20684.

Supreme Court of Missouri, In Banc.

May 16, 1919.

Appeal from Criminal Court, Greene County; Arch A. Johnson, Judge.

Farmer Ferguson was convicted of murder in the second degree and appeals. Affirmed.

Frank B. Williams and Delaney & Delaney, all of Springfield, for appellant.

Frank W. McAllister, Atty. Gen., and Shrader P. Howell, Asst. Atty. Gen., for the State.

WALKER, P. J.

The appellant was charged by information in the circuit court of Greene county with murder in the first degree in having shot and killed his wife, Clara Ferguson. Upon a trial he was convicted of murder in the second degree, and his punishment assessed at 10 years' imprisonment in the penitentiary. From this judgment he appeals.

At the time of the homicide the appellant was 62 years of age, and his wife was 48 or 49. They had been married 29 years, and six children had been born to them. Prior to September, 1915, the family had resided in Camden county. At this time the wife, for the ostensible purpose of affording a 14 year old daughter better educational advantages, removed with their household effects to Springfield. Although appellant remained in Camden county, there was no breach in his family relations, his business as a caretaker of an estate requiring his presence in that county. Up to within a few months before the tragedy he sent his wife money, corresponded with her, and visited his home as circumstances permitted. Sometime in August, 1916, appellant sent his wife $40, but received no reply to the letter inclosing same. Later, he received a letter from his 14 year old daughter, who was then at Lebanon, stating that her mother had sent her to the latter place to a married sister who resided there, and that the mother had started, or was about to start, to St. Louis to hunt work. Surprised at this information, he went to Springfield to see his wife. Upon meeting her, she treated him with indifference, and he tried to secure an explanation of her conduct and effect a reconciliation. Failing in this, he proceeded to Lebanon, and brought the young daughter home with him. When he returned he found a man named Smithmier at his house with his wife. This Smithmier, it appears, had a few months before resided next door to where the wife of appellant was living. Upon the death of Smithmier's wife, a short time prior thereto, he had gone to board with the wife of appellant, and their conduct towards each other had excited the comment of those residing in the vicinity. After supper, the evening succeeding the arrival of appellant and his little daughter from Lebanon, Smithmier and appellant's wife played cards until bedtime, when the wife informed appellant that he would sleep up stairs in Charley's bed—Charley being a young son who ran as a newsboy on a railroad train—until other arrangement could be made. Appellant complied with his wife's wishes in this regard, and the next day sought to have her explain her treatment. She refused to make any explanation. When night came she again directed him to sleep upstairs. She and Smithmier slept in separate rooms on the first floor. About midnight appellant heard his wife arise and go into Smithmier's room. The next morning he told his wife what he had heard, and she vouchsafed no reply. This was on Wednesday. On the succeeding Thursday and Friday he again remonstrated with his wife as to her conduct, and urged her to explain why she had become estranged from him; but she treated him with indifference and refused to agree to a reconciliation. After their last conversation the appellant, who instead of leaving the house had secreted himself in a closet, heard his wife say to Smithmier: "Where did he go? He is not here, and you had better watch him. He is crazy enough to do you some injury." Smithmier replied: "Let him come if he wants to. I will be ready for him." Appellant then went down town, and, returning later, saw through the window his wife arranging Smithmier's tie. Appellant entered and ordered Smithmier to leave the house. The latter refused to do so. This was just before dinner on Saturday. Immediately after ordering Smithmier to leave the house, appellant went up town, bought a pistol, and returned to find his wife and Smithmier at dinner. Appellant again insisted upon Smithmier leaving. He replied, "I will not do it," and, applying vile epithets to appellant, he threw a teacup at and hit appellant. The latter drew the pistol and shot him. Three shots, one of which killed Smithmier, were heard by persons near at hand. Immediately following the shots, they saw appellant's wife run out of the house, followed by the little girl. After them came the appellant with a pistol in his hand. The wife ran to the end of the porch, and was fired at by appellant just as she was about to jump off on the ground. In jumping off, she fell on her knees. The little girl had in the meantime gotten between her father and mother, and was trying to prevent the former from again firing the pistol. After, a struggle, appellant succeeded in pushing her aside, and shot his wife, inflicting the wound from which she died in a few minutes. He was arrested a short time thereafter. Appellant's own testimony, so far as concerns his actions preceding the homicide and that pertaining to the killing of Smithmier, is embodied in the foregoing statement. Its correctness is not questioned. The account of the killing of the wife is that detailed by other witnesses.

I. Appellant contends that the proceeding against him by information was unauthorized; that having been held without bail, after a preliminary examination before a justice of the peace, to await the action of the grand jury, the prosecuting attorney was precluded from filing an information and subjecting appellant to trial and conviction upon same. Under our law, constitutional and statutory, one may be prosecuted for a crime either by indictment or information (article 2, § 12, Const.; sections 5055, 5077, R. S. 1909), the remedies being, as stated in the Constitution, "concurrent." This leaves the manner of proceeding to the discretion of the prosecuting attorney. Despite the fact, therefore, that a grand jury had been ordered, as stated by appellant, to consider this case, this did not preclude the filing of an information by the prosecuting attorney. The discretionary power thus granted has been construed by this court in State v. Anderson, 252 Mo. loc. cit. 96, 158 S. W. 821, in which we held that "it was not an invasion of the rights of the defendant for the prosecuting attorney to file on March 4th, an information charging a felony, when a grand jury had already been summoned to convene on March 6th." This followed a ruling in State v. Harvey, 214 Mo. loc. cit. 408, 114 S. W. 21, that a preliminary examination held before a justice of the peace, resulting in defendant being bound over to "answer the charge before the court in which the same was cognizable," did not preclude the state from proceeding by information filed in the circuit court. These rulings, applied to the instant case, do not conflict with that portion of the statute (section 5055) which requires that mode of procedure, whether by indictment or information, which shall first be instituted, to be pursued to the exclusion of the other, so long as the same shall be pending and undetermined. The limitation of this provision, as we held in State v. Gieseke, 209 Mo. loc. cit. 339, 108 S. W. 525, applies only to proceedings instituted in courts having jurisdiction to hear and determine the guilt or innocence of the accused, and not to informations filed before a justice of the peace merely for the purpose of committing the defendant to jail or binding him over to await the action of the grand jury. The preliminary examination, being thus limited in its purpose, did not constitute a commencement of "one of the modes of procedure" prescribed by the statute, and the prosecuting attorney was, in the exercise of his discretion, authorized to file in the criminal court in vacation the information upon which the accused was tried.

II. It is urged that the information filed by the prosecuting attorney conferred no jurisdiction on the trial court because the testimony taken at the preliminary examination was not reduced to writing, signed by the witnesses, certified by the magistrate taking same, and by him delivered to the clerk of the court having cognizance of the offense, as required by sections 5033, 5042, R. S. 1909. The contention as to the absence of jurisdiction is not tenable. The criminal court of Greene county is clothed with exclusive original jurisdiction of all criminal cases in said county (section 4200, R. S. 1909). Thus panoplied, the consideration by it of an information filed therein by the prosecuting attorney is within the limits of its general jurisdiction, and not such a special or exceptional exercise of same as to require that all of the preliminary steps leading up to such filing be shown on the face of the information. We have held affirmatively in a number of cases that a preliminary examination may be waived not only before the examining tribunal, but at the time the defendant is required to plead to the information in the trial court, and that if he pleads the general issue of not guilty, as was done here, he will be held to have waived such examination. This presumption as to a waiver is based on the fact that the right to a preliminary examination is a matter which goes to the regularity of the previous proceedings, and not to the merits of the trial, as we held in State v. Jeffries, 210 Mo. loc. cit. 319, 109 S. W. 614, 14 Ann. Cas. 524; Ex parte McLaughlin, 210 Mo. 657, 109 S. W. 626; State v. McKee, 212 Mo. loc. cit. 147, 110 S. W. 729; Ex parte Buckley, 215 Mo. 98, 114 S. W. 954; State v. Pritchett, 219 Mo. loc. cit. 703, 119 S. W. 386; State v. Green, 229 Mo. loc. cit. 655, 129 S. W. 700. The ruling...