State v. Garrett

• Citation: 276 Mo. 302,207 S.W. 784
• Decision Date: 23 December 1918
• Docket Number: No. 21049.,21049.
• Parties: STATE v. GARRETT.
• Court: United States State Supreme Court of Missouri

207 S.W. 784

276 Mo. 302

STATE v. GARRETT.

No. 21049.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from Criminal Court, Saline County; John A. Rich, Judge.

James W. Garrett was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Roy Rucker, of Keytesville, and R. M. Reynolds, of Marshall, for appellant.

Frank W. McAllister, Atty. Gen., and Thomas J. Cole and Clarence P. Le Mire, Asst. Attys. Gen., for the State.

WHITE, C.

The appellant was found guilty of murder in the first degree in the criminal court of Saline county. He was charged with having killed, on the 8th day of January, 1917, Mrs. Sarah Z. Campbell, a widow 65 years of age.

Mrs. Campbell lived at New Franfort, a small town on the south side of the Missouri river, in Saline county. Her husband had died in June, 1916. It was reputed in the neighborhood that Mrs. Campbell kept a large amount of money about the house. During her husband's life they had manufactured and sold large quantities of wine on the premises. After his death, her sister testified to having seen $430 in her possession; she was known to have cashed checks and received money amounting to $300 or $400; besides, she had kept at the house where she lived the remnant of a stock of groceries, from which she sold to neighbors who came there from time to time for the purpose of buying. The amount of money she received for these groceries is not shown. After her death $69 was found hidden in a can on her premises. She lived alone in a house in New Frankfort, where her body was found on the 8th of January, 1917. She had been killed by a pistol shot, which was fired into the back of her head.

It was the theory of the state that Mrs. Campbell was killed Saturday, January 6, 1917, at an early hour in the evening. One Rufus Kemper, who testified for the state, said he went to see her about 5:30 o'clock that afternoon in regard to the sale of her place; that then she was in apparent good health; he stayed only about 15 or 20 minutes. He was accompanied by a boy by the name of Press Givens.

One Forrest Kalinka visited Mrs. Campbell's house Friday January 5th, and arranged with her to borrow her cart. He returned for the cart about 10 o'clock Sunday morning, January 7th. He knocked, but was unable to make anybody hear, and called to Mrs. Campbell loud enough to be heard by any one in the house, without receiving any response. He then took the cart and went away with it. On Monday, the 8th, Mrs. Campbell's body was discovered. Two boys, who were witnesses, testified to hearing one or more shots about dark, or soon after, Saturday night, in the direction of Mrs. Campbell's house. It was impossible for the physician, who examined the body when found, to state whether she had been dead exceeding eight hours or not, but she might have been dead two or three days.

When found, deceased had on her nightdress, but over her underclothes, and the bed in the room in which she was found had not been disturbed or turned down; the furniture in the room was undisturbed.

The defendant, James W. Garrett, was a nephew of the deceased. Until a few months before the murder he had lived and conducted a sort of restaurant in Salisbury, in Chariton county. After his wife died he moved to Moberly, and was living there with a married daughter at the time of the death of Mrs. Campbell. After his removal to Moberly he had visited his aunt, Mrs. Campbell, and appeared to be interested in her business affairs. He stated to several persons that he was trying to get her to sell her property and move to Moberly to live with him. A number of witnesses testified that he had said to them she would be found dead in her house some day. Some of these statements indicated that he expected her to be murdered for her money, and others that he expected her to be killed by an overdose of morphine. Garrett was a poor man, and there was no indication of his having had money of any consequence prior to the death of his aunt. On the 5th of January, 1917, he went to several of his friends and relatives in Moberly and endeavored to borrow a pistol, saying that he was going to Higbee to buy a hotel, and did not wish to stay away all night without one. He was unable to borrow one. He was seen to take the train going south on the Missouri, Kansas & Texas Railroad, about 11:30 a. m., January 6th. This train connected at Higbee, a few miles from Moberly, with the Chicago & Alton, going west, which crosses the Missouri river into Saline county and runs through the town of Gilliam and Slater. Gilliam is about 6 miles from New Frankfort, where Mrs. Campbell lived, and Slater is a station about 3 miles west of Gilliam. The Chicago & Alton passed through Higbee, going toward Slater, about 3 or 4 o'clock in the afternoon. Several witnesses swore to having seen Garrett on the Chicago & Alton train Saturday afternoon, and some testified to having seen him get off the train at Gilliam and to having heard him inquire for a livery stable. That was about 5:30 p. He was directed to the livery stable of Robert Ayres. A man answering his description appeared at that livery stable, hired a horse, and rode off on it. He said he was going to Babbler's place to see a man named John Skinner. He said he lived at Salisbury, and gave his name as Winkler. Babbler's place was within a mile of New Frankfort. It was shown that no one by the name of John Skinner lived on Babbler's place, and no one by the name of Winkler lived in Salisbury.

One witness testified to having seen the defendant ride out of Gilliam on horseback that afternoon. The same man who hired the horse returned with it about 8:45 p. m., and the defendant was identified as that man by two or three witnesses who happened to be at the livery stable. He asked when the train going north would come and was told it would be midnight. He said it was a long time to wait, and disappeared.

Two or three witnesses who boarded the east-bound train at Slater, 3 miles west of Gilliam, near midnight, testified that defendant got on the train at that point. These witnesses had waited at the Slater depot for the train, and did not see him enter the station. They saw him get on the train, appearing, it seems, from somewhere outside.

He attended the funeral of his aunt on the 9th of January, was drinking a good deal, and appeared to be very nervous. He also appeared to be nervous in Moberly on the 8th, on which day some witnesses swore to having seen him with large sums of money. He was arrested on the day of the funeral, and had $328 in bills on his person. He then said to the sheriff that it was the proceeds of the sale of his restaurant in Salisbury, and later said to the deputy sheriff that it was his son's money.

The horse which Ayres hired to Garrett was unshod, and its feet had been broken in a way to make its tracks peculiar. The horse was well known in the neighborhood, having carried the mail on the route going out from Gilliam. It was recognized by one witness just after dark, by moonlight, on the 6th, about 2 ½ miles from Gilliam on the road to New Frankfort, ridden at the time by a man who answered the description of the defendant. Leading up to the barn on the premises where the deceased had lived, and leading away from it, were the tracks of a barefoot horse. These tracks showed that the left fore foot had a notch broken out of it and the right hind foot was broken off at the toe, making it square at the front. That condition corresponded to the defects in the right hind foot and the left fore foot of Ayres' horse. Some of these tracks were in soft ground, and had retained their shape. The horse was brought over from Gilliam to New Frankfort, his left fore foot and right hind foot inserted into two of the tracks mentioned, and both fitted exactly. This experiment was made in the presence of a number of witnesses.

When arrested the defendant protested his innocence, said he was all day on the 6th at his daughter's home in Moberly, and in the evening at the home of some friends named Bell. He also' said he knew who did commit the crime and would lay his hand on the guilty person as soon as his own trial was over. At the trial he produced two witnesses who testified that they saw him eat his dinner in Moberly at a restaurant—which one of them ran and in which the other one was employed—between 3:20 and 4 o'clock, Saturday afternoon, the 6th. None of his relatives or friends with whom he claimed, when arrested, to have been on Saturday were offered as witnesses in his behalf to support his defense of alibi.

I. When the case was called for trial the defendant filed a motion, asking the court to order the appointment of an elisor to summon the jury, on the ground that the sheriff was prejudiced. The motion was sustained, an elisor appointed and qualified, and the case continued until the succeeding term. At the succeeding term, the elisor was ordered to summon the jury panel, and the following appears in the record of that day:

"Counsel for defendant objected to the court directing the elisor to call any of the jurors summoned on the regular panel for this term of court for service as jurors in this case (all but 7 of whom had been previously excused by the court), for the reason that the court, nor any other person, should suggest to the elisor whom he should call. (Objection overruled by the court, and defendant excepted to the ruling.)"

To this ruling error is assigned. It is unnecessary to consider the merits of this assignment. A transcript of the record proper shows that the elisor made a return of his venire, giving the names of the panel of 40 qualified jurors who were impaneled and sworn. There is nothing in the record to show that the court gave any direction whatever to the elisor as to whom he should summon, nor that any of the regular panel objected to were on the list.

II. Objection is made to a cautionary instruction on the...