State v. Hates

• Decision Date: 09 December 1922
• Docket Number: No. 23797.,23797.
• Citation: State v. Hates, 247 S.W. 165 (Mo. 1922)
• Parties: STATE v. HATES.
• Court: Missouri Supreme Court

247 S.W. 165

STATE v. HATES.

No. 23797.

Supreme Court of Missouri, Division No. 2.

December 9, 1922.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Eugene Hayes was convicted of first degree murder, and appeals. Reversed and remanded.

Chas. J. White, of Festus, and James Booth, of Pacific, for appellant.

Jesse W. Barrett, Atty. Ben., and Albert Miller, Asst. Atty. Gen., for the State.

Statement.

REEVES, J.

Defendant was convicted, upon indictment, of murder in the first degree and sentenced to death. From this judgment of conviction and sentence, he has appealed.

The indictment charged:

"That James Seward, at the county of Jefferson, in the state of Missouri, on the 26th day of February, 1921, * * * feloniously, or. purpose and of his malice aforethought, willfully, deliberately and premeditatedly, did shoat and strike" one Andrew Deck, inflicting a mortal wound, from which the said Deck died on February 28, 1921.

It was further charged:

"That Eugene Hayes "' before the said felony and murder was committed in the manner and form aforesaid, did then and there unlawfully, feloniously, willfully, deliberately and premeditatedly, incite, move, procure, aid, counsel, hire and command him, the said James Seward, the said felony and murder aforesaid, in manner and form aforesaid and by the means aforesaid, to do and commit."

The evidence on the part of the state tended to show that the appellant, with others, had been involved in the violation of the prohibitory liquor laws at Herculaneum, and that the deceased had been instrumental in causing prosecutions therefor. As a result of this alleged activity on the part of the deceased, a scheme or plan was developed by the accused and others to administer physical punishment upon him. In pursuance of this plan, appellant procured one James Seward, who was jointly indicted with him, then residing in the city of St. Louis, to go out to the town of Herculaneum, where deceased resided, and there "to get" him.

In the afternoon preceding the tragedy, which occurred about 8 p. m., appellant and. Seward went out to Herculaneum on an afternoon train from St. Louis, where they were met by others named as accomplices. Appellant's father, also indicted as an accomplice, resided at Herculaneum, where appellant spent much of his time, referring to his father's house as "home."

Some time between 7 and 8 o'clock, Seward armed with a 38-caliber revolver and a "billy," furnished him by appellant, went to the home of the deceased and there inveigled him out on the pretext that Seward was a prohibition enforcement officer, and that other prohibition officers wanted to see deceased. The deceased had previously made application for an appointment as an enforcement officer, and Seward represented to him that his services were needed at once to aid in making a "pinch." The deceased went out with Seward, and had not gone very far when Seward made an assault with the "billy" and then shot the deceased with the 3S-caliber revolver, furnished him by appellant. The bullet entered from the back, just to the right of the spinal column, and passed outward and downward through the abdomen and lodged just to the left of the naval, where it was cut out.

After the assault, the deceased was able to make his way to the home of witness Aloise Wagner, about 250 to 300 yards from his own home. He knocked on the door, and when witness opened it "he fell in the door in my arms, and he said, `I am shot.'" This occurred about 2% to 3 minutes after he was shot, and, upon inquiry, deceased "said it was a stranger what shot him, a man from St. Louis, but it was the Thomases and the Hayes gang what had it done."

Upon objection, that portion of the answer relating to "the Thomases and the Hayes gang" was stricken out. After the shooting Seward went to the home of appellant's father, and there hid in a coal shed. Shortly thereafter, appellant secured the services of Elvie Thomas to take appellant and Seward to St. Louis in Thomas' automobile.

Seward had agreed to "beat up" the deceased for $35, and immediately after the tragedy, appellant paid him $20 on account; this sum having been made up by collections from appellant and his accomplices.

Appellant and. Seward were arrested in St. Louis on the 1st of June following the homicide, and, while being held in the St. Louis jail, both of them signed written confessions as to their participation in the felony. At the trial objections were made to the introduction of these confessions in evidence, upon the ground that same were not voluntary. Objection was also made to the testimony of witness Wagner, with respect to the statement made by the deceased to the effect that a St. Louis man had shot him. Complaint is made here relative to the admission of such testimony, as well as to the giving and refusal of certain instructions, all of which, with other salient facts, will be noted and discussed in the opinion.

Opinion.

1. When the state sought to prove what the deceased had told witness Wagner, when he appeared 21, to 3 minutes after the shooting, an objection was made but overruled. The witness then testified:

"He said it was a stranger what shot him, a man from St. Louis, but it was the Thomases and the Hayes gang what had it done."

Counsel for appellant moved that the answer be stricken out, and the court sustained the motion to the portion thereof, relating to the "Thomases and the Hayes gang." The portion left for the consideration of the jury was, "He said that it was a stranger what shot him, a man from St. Louis."

This answer was not a part of the res gestæ, but a narrative of a past event, and therefore incompetent. State v. Reeves et al. (Mo. Sup.) 105 S. W. 1027, loc. cit. 1030; State v. Kelleher, 201 Mo. 614, loc. cit. 633, 634, 635, 100 S. W. 470; State v. Hendricks, 172 Mo. 654, 73 S. W. 194; State v. Birks, 199 Mo. 263, loc. cit. 273 and 274, 97 S. W. 578. However, is was not prejudicial to the appellant, as the statement did not refer to him. State v. Dougherty, 287 Mo. 82, 228 S. W. 786, loc. cit. 788. Moreover, he is not in a position to complain for the reason that it was admitted by his counsel, in open Court as follows:

"It is not necessary to go into detail as to how Mr. Deck was shot. It has already been proven and is of record that Mr. Seward killed Deck."

According to the undisputed testimony, Seward was a "stranger" at Herculaneum and was the "man from St. Louis," and, the statement of the deceased being admittedly true, there is no basis for a complaint, and this contention must be ruled against the appellant. State v. Ray (Mo. Sup.) 225 S., W. 969, loc. cit. 974.

2. Elvie Thomas, who took appellant and Seward to St. Louis on the night of the homicide, testified for the state. He had been jointly indicted with them, but the indictment against him had been dismissed. Subsequently an information had been filed against Thomas, charging him as an "accessory after the fact" On cross-examination appellant's counsel inquired of him as follows:

"Now, Mr. Thomas, as a matter of fact, you cannot be tried on this offense after you have turned state's evidence, and didn't you have some agreement about that?"

The court sustained an objection to this question, and appellant complains that it was error.

Under section 4035, R. S. 1919, one who is jointly charged with a crime may be discharged by order of the court and then become a witness against his accomplice on behalf of the state. Such person is not a competent witness while the joint charge is pending. State v. Reppley, 278 Mo. 333, 213 S. W. 477. But an accomplice is a competent witness when separately indicted. State v. Myers, 198 Mo. 225, 04 S. T. 242. In this case, however not only was there a separate charge against witness Thomas, but such charge was made under section 3388, R. S. 1919 as an accessory after the fact, and in this relationship he was not an accomplice. State v. Umble, 115 Mo. 452, 22 S. W. 378. Not being jointly charged, Thomas was a competent witness against appellant.

It is to be noted that the question only called for information as to whether there was an agreement that witness would not be further prosecuted if he "turned state's evidence." This agreement may have been made, and yet not disqualify him as a witness, as it was not sought to elicit information that he had agreed to testify in any particular way. State v. Schyhart (Mo. Sup.) 199 S. W. 205. As the question called for a conclusion of law, the objection was properly sustained.

3. Two written confessions made by appellant, shortly after his arrest, were offered in evidence. Two written confessions made by Seward, in the presence of appellant and acquiesced in by him, were also introduced and read. This was done over the objections of appellant. It is contended that the confessions were not only involuntary, but that it was error to offer the confessions of an accomplice made while appellant was under arrest, even though such confessions were taken in his presence.

Appellant testified to the effect that such confessions had been obtained by force and coercion. The state, in rebuttal, produced a multitude of witnesses, whose testimony was in agreement to the effect that no improper methods were employed in obtaining such confessions and that same were purely voluntary on the part of both appellant and Seward. When offered in evidence, `appellant objected upon the ground that such confessions were not competent, until it was shown that they were voluntary. Appellant did not ask for a preliminary inquiry on the question of their voluntary or involuntary nature. The court properly proceeded upon the theory that such confessions were presumed to be voluntary. Such is the law. State v. Patterson, 73 Mo. 305, loc. cit. 705; State v. Meyers, 99 Mo. 107, loc cit. 109, 12 S. W. 513; State v. Jones, 171 Mo. 401, loc. cit. 406, 71 S. W. 380, 94 Am. St. Rep. 786; State v. Woodward,...