State v. Foley

• Decision Date: 14 June 1898
• Citation: 144 Mo. 600,46 S.W. 733
• Parties: STATE v. FOLEY.
• Court: Missouri Supreme Court

46 S.W. 733

144 Mo. 600

STATE v. FOLEY.

Supreme Court of Missouri, Division No. 2.

June 14, 1898.

JURY — COMPETENCY — CRIMINAL LAW — EVIDENCE — CONCLUSIONS — OBJECTIONS — MOTIVE — CHARACTER — INSTRUCTIONS.

1. Under Rev. St. 1889, § 4197, making it cause for challenge that a juror has formed or delivered an opinion on the issue or on any material fact, unless such opinion be founded only on rumor or newspaper reports, and is not such as to prejudice or bias the juror's mind, an opinion based on conversations with witnesses, or on testimony heard in a former trial, disqualifies the juror, notwithstanding he professes to be able to return a verdict free from bias.

2. Where a witness visited accused in jail, and engaged him in a conversation, testified to under the guise of proving admissions made by accused during such conversation, it is error to refuse to strike out the witness' conclusions stated to accused as part of the conversation, by which conclusions, from the facts admitted, an inference of guilt was drawn which the accused failed to deny.

3. Failure to object to the admission of conclusions of a witness does not waive the objection, where the testimony was such that it could not have been anticipated.

4. Where the attention of the jury had been directed to the motive of accused in committing a crime, by an instruction that a motive was not a necessary element of guilt, it was error to refuse an instruction that the absence of a probable motive is a circumstance in favor of accused.

5. There is no conflict between an instruction that the weight of evidence of good character is for the jury and an instruction as to the effect of previous good character, if proved, on the question of guilt of the particular crime charged.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

William S. Foley was convicted of murder in the first degree, and he appealed. Reversed.

H. F. Simrall, John Dougherty, B. L. Woodson, and J. J. Williams, for appellant. E. C. Crow, Atty. Gen., for the State.

GANTT, P. J.

At the February term, 1897, of the circuit court of Clay county, the defendant was indicted for the murder of his mother, Mrs. Elizabeth Foley, on the 17th of November, 1896. He was duly arraigned, and went to trial at the June term, 1897, but a mistrial resulted owing to the disagreement of the jury. The cause was continued to the November term, 1897, at which time it was tried, and defendant convicted of murder in the first degree. In due time motions for new trial and in arrest were filed and overruled, and defendant sentenced to be hung. From that conviction this appeal is prosecuted.

The state relied entirely upon circumstantial evidence. At the time of the alleged murder the Foley family consisted of the widowed mother, Mrs. Elizabeth Foley, two daughters, Misses Fannie and Amelia Foley, and one son, the defendant, William S. Foley. The father of defendant had been dead five or six years. Another married daughter, Mrs. Morrow, and her husband, lived about three-quarters of a mile from the Foley homestead. The Foley family were comfortably fixed financially, and had lived on the same farm for a quarter of a century, and enjoyed the esteem and respect of all their neighbors. At the time of the homicide of which he was convicted defendant was 33 years old and unmarried. On the 17th day of November, 1896, defendant attended a sale of Jersey cattle at the farm of Mr. Wymore, a neighbor. He ate his breakfast at home that morning, and took the blacking brush and a bootjack, which he kept in his room in a box, and laid the bootjack on a freshly-painted bench on the porch, and polished his shoes, and left home in a buggy, driving a pair of mules. He went first to Mr. Talbott's. After he left, his sister Amelia put the blacking and the brush away, but left the bootjack on the bench. Having reached George Talbott's, he and that gentleman rode together in defendant's buggy and led his horse. They went first to Liberty, and thence to Wymore's, arriving at the sale about 10 or 11 o'clock. He and Talbott remained at the sale until 3:30 o'clock in the afternoon, and then started to their homes. Talbott rode with defendant in his buggy until they reached the fork of the roads, when Talbott went to his home horseback, and defendant drove on home, arriving there at 4:20 o'clock that afternoon. After reaching home, defendant unhitched his team, fed his hogs, turned his horse out, and then went to the house. Mrs. Foley, Misses Fannie and Amelia, and Miss Allie Ligon, a neighbor, were at home when he came. Miss Ligon soon left for her home. Defendant accompanied her to her horse, and assisted her to mount, and then went about 100 yards west to open the gate to the public road, to let her out. He then returned to the house, and his sister requested him to go with her to Mrs. Morrow's whither she was going so as to let Mr. Morrow attend a lodge meeting in Liberty that evening. His mother said to them, "Come, children, do up your night's work." Defendant said to his sister, "You help me milk, and I will go around that way with you as I am going to Ligon's." They finished their work, ate supper, and defendant saddled the horses, and he and Amelia rode over to Mr. Morrow's, and he left her there, and proceeded to Ligon's, a distance of two miles. Defendant rode a black horse which belonged to his sister Fannie, who cautioned him to ride slow, and he and his sister Amelia rode in a walk to Morrow's. Defendant remained at Mr. Ligon's about an hour and a half. He went in a walk, going over there from Morrow's. As defendant came out of Mr. Ligon's, he stopped at the stile, and talked 20 or 30 minutes with Emmett Ligon, a son of Mr. Ligon. The testimony tends to show that while at Ligon's defendant sat in a position which enabled him to see the clock. Ligon testified he had never known defendant to leave so early as he did that night. He usually sat until half past 10. As already said, Mr. Ligon had an unmarried daughter, a young lady, at that time. When defendant left Ligon's he went down the main road in the direction of his home until he reached Mr. Ross' gate, where he went in, and rode through four gates to his home. The purpose of noticing in detail the distances and stops of defendant that evening is to locate his whereabouts at the time the shots were fired which killed his mother; the contention of the state being that if he reached Ligon's at 7 o'clock, and stayed an hour and a half, and then occupied 30 minutes in going home, he reached there at or about 9 o'clock. Various witnesses, neighbors of the Foley's, testified they heard the shots and screams of women either a few minutes before or a few minutes after 9 o'clock, whereas defendant introduced witnesses who testified to hearing the shots nearly an hour before the 9 o'clock whistle was sounded in Kansas City, — a signal easily heard and understood in that neighborhood. Defendant testified that when he rode home in a walk from Ligon's that night, and went to the barn, he found the east barn gate open, the mules out, stable door open, horse out, and saddle gone out of the barn. He went to the house to tell his mother and sisters the horse was gone. Found the doors open. Called to them, but no one answered. He went into his mother's room, and struck a match, and discovered the bed torn to pieces and bloody, and found his mother and sister Fannie murdered. Without touching their bodies, he says he rode horseback in a run to Mr. Morrow's, his brother-in-law, three quarters of a mile, and reached there in about three or four minutes. He then hurried to the residence of Mr. Williams, one and one-half miles from Morrow's, and reached there a few minutes after 10 o'clock. He only remained at Morrow's a few minutes. Defendant belonged to a detective association, and on the day of the sale he met a member of the order, and asked him if a guard would be kept that night over a certain graveyard known as the "Little Shoal Graveyard," three-quarters of a mile from defendant's home. He was informed not. It seems this association had been, shortly before this, guarding this graveyard for several nights. Defendant made two inquiries this day about this guarding of the graveyard. The defendant borrowed a pistol of Bob Williams, a son of his neighbor, Jaret Williams, a few days before the killing. The pistol he borrowed was found in his room that night of the murder with three chambers empty, and two yet loaded, and defendant and young Williams each swore Williams had loaded the pistol when it was loaned the defendant. The defendant stated at one time after the homicide he had shot at a rabbit three times on Saturday before the killing, and afterwards said he had shot at the rabbit Monday evening before the killing. The evidence tended to show that the defendant had stated in September previous, to one Baker, who worked for James Morrow, the defendant's brother-in-law, while riding to town, that he had loaned a fine saddle horse to a certain young lady in the neighborhood to ride to Liberty to school, and that this would help him in winning the girl; also that his mother and sister Fannie had bossed the place since his father died, but that he proposed to boss it next year, or the hearse would have to be called to their home. The evidence showed that defendant also stated in this talk that he expected to marry this girl soon and take her home. The defendant denied this conversation in his testimony. On the morning after the murder, while going by the dam on the pond, from the house to the barn, to milk, defendant stopped and looked in the pond, and said to his brother-in-law, Morrow, and his neighbor, Ross, that the fellow or fellows who committed that murder might have thrown the pocketbooks of his sister and mother, three in number, which were missing, into the pond. Afterwards the pond was dragged, and the three pocketbooks were found in it. He had stated the...