State v. Gatlin

• Decision Date: 02 December 1902
• Citation: 70 S.W. 885,170 Mo. 354
• Parties: STATE v. GATLIN.
• Court: Missouri Supreme Court

70 S.W. 885

170 Mo. 354

STATE v. GATLIN.

Supreme Court of Missouri, Division No. 2.

December 2, 1902.

MURDER — CONSPIRACY — ALIBI — EVIDENCE — INSTRUCTIONS — ARGUMENT OF COUNSEL — REMARKS OF COURT — HARMLESS ERROR.

1. It appeared that deceased had been called to the door of his house by a co-indictee of defendant, and shot, and that immediately after the shooting defendant entered, in company with a third party. Defendant testified that he had gone to accompany the third party, who had a message to deliver to a woman who lived there. Two women who lived in the house testified that just after the shooting defendant begged them to say nothing about his being there, and told them who did the shooting. The co-indictee testified that he went alone, and to compromise with deceased, they having been quarreling shortly before that. Fifteen minutes after the shooting, defendant went to a saloon, and called for "drinks on" deceased, saying he was "done dead." Held, that it was proper to refuse to instruct on the subject of alibi.

2. On a prosecution for murder, the killing having been done by a co-indictee of defendant, it was shown that there had been ill feeling between the defendant and the co-indictee on the one hand and deceased on the other, that defendant had been urging on a quarrel between deceased and the co-indictee, and had given the co-indictee a revolver, and reproached him for not killing deceased in a certain encounter; that later the defendant and the co-indictee were seen to converse together, and then the co-indictee went to deceased's home and shot him. Held, that a conspiracy to kill deceased was shown.

3. Where, on a prosecution for murder, it is shown that there was a conspiracy to murder deceased between accused and a co-indictee, an instruction on alibi is properly refused.

4. An application for a continuance, not incorporated in the bill of exceptions, cannot be reviewed on appeal.

5. Where no objection is made or exception raised to the presence of a certain person on the jury, no question thereon can be considered on appeal.

6. Where one of the grounds for a new trial was certain statements in the argument to the jury, but on appeal the bill of exceptions does not show such statements, the question is not open to review.

7. The killing having been done by a co-indictee, testimony was admitted that previous to the killing the slayer had stated he had had trouble with deceased, and was going to settle it with deceased, and that he had other "niggers" to go with him. Held properly admitted, though defendant was absent when the statement was made, a conspiracy having been shown.

8. The court, in passing on an objection to testimony, remarked that there was evidence of a conspiracy, but promptly told the jury not to pay any attention to what he said. Held, that there was no error.

9. Testimony of officers was admitted to the effect that a co-indictee had stated, when under arrest, that he did the killing. Held that, if the admission of the testimony were error, it was harmless, the co-indictee having testified that he killed deceased.

10. On appeal the question as to the propriety of admitting testimony cannot be considered where no such matter is suggested in the motion for a new trial, and there is not even a general suggestion in the motion of the court's admission of illegal or incompetent evidence.

11. A co-indictee having testified for defendant it was proper to admit the testimony of the co-indictee given before the coroner, it being competent to impeach him.

12. It was not error not to have limited the testimony to impeaching purposes, no instruction having been asked and refused and exception taken.

13. A co-indictee was testifying on cross-examination, when counsel said: "You laughed all the time when you were being tried for your life. You don't seem to realize the fix you are in, and now you are laughing in this case." Held not error.

14. In a criminal case the court said, "Now, gentlemen of the jury, I will read you the instructions for the state," and then proceeded to read instructions; and afterwards said, "Now, gentlemen, I will read you the defendant's instructions." Held, that a contention that the court's so addressing the jury was error was frivolous.

15. Objections and exceptions not incorporated in a motion for a new trial cannot be considered on appeal.

Appeal from circuit court, Butler county; J. L. Fort, Judge.

Wm. Gatlin was convicted of murder in the first degree, and he appeals. Affirmed.

Phillips & Phillips, for appellant. The Attorney General and Jerry M. Jeffries, for the State.

SHERWWOD, P. J.

David W. Hill, prosecuting attorney of Butler county, filed an information against three negroes, Zeb Crite, Ike Torrence, and Wm. Gatlin, charging them with murder in the first degree, in that they, with a revolver, on September 10, 1901, shot and killed another negro, Thomas Graham. Each of those informed against was accorded a separate trial. Crite was first tried, found guilty of the first degree of murder, and, his sentence not being executed at the time of defendant's trial, he was permitted to testify on behalf of defendant. The result of defendant's trial was the same as that in Crite's case, and defendant appeals.

He was employed as a porter on a railroad train, making his headquarters at Poplar Bluff, Mo. On the night of September 10, 1901, he, with Ike Torrence, who was likewise employed as a porter on a railway train, reached Poplar Bluff at about 9 o'clock a. m., where they would remain until about noon the next day, as had been their custom at intervals of a few days for some months previous to that time. It appears that defendant, William Gatlin, and Zeb Crite and Ike Torrence and Thomas Graham had had a difficulty over a negro woman by name Carrie Bryant about a year previous to this time. Considerable enmity sprang up between them, especially between Crite and Graham; the defendant siding with Crite, and espousing his cause. This enmity grew and continued until it ripened into a conspiracy on the part of Crite, Torrence, and defendant Gatlin to kill and murder Graham. On the morning of the 10th of September, about 1 o'clock, Crite, Gatlin, Tom Graham, and another negro came into the Crown saloon, which Pat Hill kept, and the other three negroes were evidently trying to pick a quarrel with Tom Graham, and the latter was evidently alarmed, because he refused at first to drink when Gatlin asked him to do so. And Graham then told Pat Hill: "`Mr. Pat, them niggers are trying to kill me,' and I says: `There is not going to be no racket in here. I am running this place; and, if you want to fight, get outside.' He finally came up and drank, and the whole push went outside, and came back and got another drink, but still agging a racket, and I asked them the second time to get out if they wanted to fight, and they all got back." The parties went out, and Gatlin was urging on a quarrel between Graham, commonly called "Tom," and Crite. This was the first time they went out, and then they went behind the Crown saloon, where the quarrel was renewed, when Crite drew a revolver, or had one in his hand, and threatened to shoot Tom, and Tom picked up some rocks to defend himself, and told Crite just to raise his hand (the one with the revolver in it), and he would "shatter his brains out," whereupon Crite, despite his revolver, took refuge behind some box cars. The parties — at least Gatlin, Crite, and Torrence, and perhaps one or two others — then returned to the Crown saloon the second time, Tom being absent, when Gatlin reproached Crite with his failure in the recent difficulty, and told Crite he was a coward; that he had given him a gun to kill Graham with, but he was afraid to use it. Just after the encounter on the streets of Poplar Bluff above alluded to, Graham went home and to bed. Crite, Torrence, and defendant, Gatlin, remained about the saloons and restaurants of that place until a little before day, and during that time were seen to confer and counsel together. At nearly daylight the three — Crite, Torrence, and defendant, Gatlin — went to the house where deceased was staying, the former knocking at the door, and, when asked by a voice from within who was there, said, "Lawyer Scott was there, and wanted to see Mr. Graham." Deceased went to the door in his night clothes, and when he opened the door Crite, without a word, shot him, the ball striking the collar bone. Deceased then turned, and went to his room, where he sat down on the bed. Crite passed to the window of that room, pushed the curtain back, took deliberate aim, and fired, the ball piercing Graham's heart, who got up, rushed into another room, sat down in a chair, got up, and lay down upon a bed in that room. No sooner had deceased lain down on the bed than Torrence and defendant Gatlin entered the room, and assisted others in carrying deceased back to his own bed. Life passed out of Graham almost as soon as defendant reached him. Defendant took two women — Fanny Sanders and Carrie Bryant — who were in the house where the homicide took place around the house, and begged each of them, apart from the other, to say nothing about his being there. At the time defendant took these women around the house, he also told them Zeb (Crite) had shot Tom, and gone. Defendant entered a plea of not guilty, and testified that he started to the home of Fanny Sanders, where Graham lived; that he went with Torrence for company, at the latter's request, who was going to the place mentioned to deliver a message to Fanny Sanders; that this was between 3 and 4 o'clock in the morning. Torrence testified that the message mentioned by defendant was a message sent to Fanny Sanders by one "Gene," another negro, who, having appropriated a guitar of some one else to his own use, and having left the state in consequence, was solicitous to know of Fanny Sanders whether he could safely return to the venue...