State v. Harris

• Citation: 22 S.W.2d 802,324 Mo. 223
• Decision Date: 11 December 1929
• Docket Number: 29516
• Parties: The State v. Jeff Harris, Appellant
• Court: Missouri Supreme Court

22 S.W.2d 802

324 Mo. 223

The State v. Jeff Harris, Appellant

No. 29516

Supreme Court of Missouri

December 11, 1929

Appeal from Jackson Circuit Court; Hon. E. E. Porterfield Judge.

Affirmed.

Edgar J. Keating, L. A. Knox and C. H. Calloway for appellant.

(1) The verdict is against the law. State v. Morney, 196 Mo 43; State v. Jones, 106 Mo. 312; State v Scott, 177 Mo. 672; State v. Mahan, 138 Mo. 112; State v. Marshall, 47 Mo. 378; State v. Francis, 199 Mo. 671; State v. Clapper, 196 Mo. 42; State v. Dickson, 78 Mo. 438; State v. Crabtree, 170 Mo. 642; State v. Nesen hener, 164 Mo. 461; State v. Kyles, 153 S.W. 1050; State v. Snow, 293 Mo. 143; State v. Bowman, 294 Mo. 245. (2) The verdict is against the evidence. State v. Francis, 199 Mo. 671; State v. Morney, 92 S.W. 1117; State v. Kyles, 153 S.W. 1047; State v. Snow, 238 S.W. 1069; State v. Bowman, 243 S.W. 110. (3) The court erred in overruling defendant's motion to strike from the record all the testimony of and concerning the iron pipe introduced in evidence. State v. Snow, supra; State v. Goddard, 162 Mo. 227, State v. Thomas, 99 Mo. 257. (4) The court erred in overruling appellant's demurrer offered at the close of all the evidence, and in refusing appellant's instruction in the nature of a directed verdict. Cases under Point 1.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) The evidence was substantial and sufficient to take the case to the jury. Such being the case, this court, in the absence of procedural errors, is precluded from disturbing the jury's verdict. State v. Concelia, 250 Mo. 411; State v. Sassaman, 214 Mo. 695; State v. Page, 212 Mo. 224; State v. Fogg, 206 Mo. 696; State v. Henke, 285 S.W. 392. (2) Assignments of error in motion for new trial do not prove themselves. State v. Creeley, 254 Mo. 397; State v. Harmon, 296 S.W. 391.

Blair, P. J. White, J., concurs; Walker, J., absent.

OPINION

BLAIR

Indicted for and convicted of murder in the first degree in the Circuit Court of Jackson County, defendant was sentenced to imprisonment for life and was granted an appeal to this court.

The main contention is that the evidence is not sufficient to support the verdict. The disposal of this contention requires an extensive statement of the facts appearing in the voluminous record.

On the afternoon of September 4, 1927, the body of Mrs. Margaret Muehlebach was found in an apartment at 3421-3423 Wyandotte Street in Kansas City. The apartment was owned by her husband and managed by her. Her death was due to injuries inflicted upon her head and body by some blunt instrument which crushed her skull. Attendant circumstances indicated robbery as the motive. Appellant was the janitor of the building, which was three stories in height and contained at least nineteen apartments. He lived in an apartment in the basement. He was taken into custody late in the afternoon on the day of the homicide and was tried and convicted about three months later.

The testimony offered by the State tends to show the following facts:

Deceased lived at 3010 Forest Avenue in Kansas City with her husband John Muehlebach and their son Henry. John Muehlebach was sixty-nine years old. Deceased was sixty-two years old and a short, stout woman, being only five feet and two inches in height and weighing 250 pounds.

Appellant Jeff Harris is a negro. He had been employed as janitor of the apartment for fifteen or sixteen months. In connection with the duties usually expected of a janitor, he seems to have been authorized to collect rents from the tenants of the building. On the evening before the homicide appellant had collected $ 50 rent money from one of the tenants and, early on the morning of the homicide, he had collected $ 37.50 and $ 10 from two other tenants, making a total of $ 97.50 in all.

Several of the apartments were vacant. About nine o'clock Sunday morning, September 4, 1927, appellant telephoned to the home of deceased. Her son Henry answered the telephone and called deceased to talk to appellant. Afterwards she told Henry she had to go over to the apartment. She left the house about 9:15, using Henry's automobile. She told him she would be back soon, as Henry had an engagement to sing in a church choir at eleven o'clock. As deceased did not return before church time, Henry had to leave to keep his engagement. He returned from church at about 12:30 and found deceased had not returned. This fact worried him and he called the apartment over the telephone and talked to appellant, who said the deceased had been at the building and had shown an apartment to a man and woman and had left about 9:30, saying she was going to church.

Henry called again in a few moments and was informed by appellant that he had not seen deceased and had not seen the automobile which she used. Henry directed appellant to look through the vacant apartments and immediately procured an automobile and drove to the apartment building. He found the automobile his mother had driven parked directly in front of the apartment within easy view from any part of the hall on the first floor of the building. Upon finding appellant, Henry asked him how long the automobile had been parked in front of the building. Appellant had previously informed Henry that he had not seen the automobile. He then stated to Henry that he had just discovered it and telephoned to his father about it. Appellant also stated that he had searched all of the vacant apartments, except apartments numbered 2 and 7. He had not searched those because he had no keys to them. Henry testified that appellant kept all of the keys to the building on a board in the basement.

Henry decided to look first in Apartment No. 7 on the second floor. Appellant was behind him and seemed to lag back and did not start to follow Henry up stairs, and Henry saw appellant turn his head and look toward Apartment No. 2, which was on the first floor on the south side at the west or front end of the building. This action on his part is said to have aroused Henry's suspicion and directed his attention to that apartment. So he decided to look there first. He asked appellant how to get in and appellant said he did not know. Henry asked appellant for a screw-driver and he said he had none. Appellant walked up and felt around the top of the doorjam and stepped back. Thereupon Henry burst in the door by throwing himself against it.

The body of deceased was found on the floor, lying in a pool of blood. There were numerous wounds on her head, more than one of which would likely have proven sufficient to have produced death. Her handbag was lying open, with its contents thrown upon the floor and the table. Some keys and papers were found lying on the table and in the pool of blood. Only two pennies were found in the handbag. The dress of the deceased had been slightly pulled up as if to disclose whether any money was being carried in her stockings. A necktie which had been torn in two was found beside and under the body. This tie was not traced to appellant in any way and appears to have dropped out of the case further, although there was a suggestion by one of the witnesses that the tie might have been used to strangle the deceased. The experts said nothing about strangulation as the cause of death.

Appellant aided Henry Muehlebach in notifying the police and remained about the apartment without any attempt to escape until he was taken to the police station for questioning. Search of his person disclosed only two or three dollars in money. He voluntarily made a written statement the night of his arrest which was offered in evidence by the State and was not markedly different from his testimony at the trial.

Three or four witnesses testified that appellant visited a certain gambling house or club on the Thursday and Saturday nights preceding the homicide and drank liquor and shot craps and lost some money. On direct examination some of these witnesses testified that his losses on Saturday night were six or seven dollars, although they were not very certain on that point. On cross-examination one of these witnesses stated that appellant's loss on Saturday evening may have been as much as forty-five or fifty dollars, which was about the amount of money he had collected for deceased earlier that evening. The allowable inference from this evidence which the State desired the jury to draw was that appellant gambled away fifty dollars of deceased's money and killed her to avoid having to pay it back, as well as to enable him to keep the $ 47.50 he had collected on the morning of the homicide.

One of the tenants testified to seeing appellant sitting on the back steps of the building with his head in his hands and exhibiting considerable nervousness. This was about an hour before deceased left her home to go to the apartment building in response to appellant's telephone call. The same witness testified that appellant at that time was wearing a soiled dark shirt and that he was wearing a clean shirt when deceased's body was found later.

As above stated, the door to Apartment No. 2 where deceased's body was found was closed and locked. The lock was a Yale spring lock which fastened without the use of a key when the door closed. Appellant seems to have been the only person having a key, because he says he handed the key to deceased when she reached the building. No weapon was found in the apartment. A careful search of the entire building was made to discover a possible weapon, but no bloody instrument of that character was found, although there were a number of iron tools and appliances in the building which might well have served such purpose. One of the detectives discovered a fire in the furnace which heated...