State v. Hayes

• Decision Date: 23 February 1923
• Docket Number: No. 24150.,24150.
• Citation: 249 S.W. 49
• Parties: STATE v. HAYES.
• Court: Missouri Supreme Court

249 S.W. 49

STATE v. HAYES.

No. 24150.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

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

Ernest Hayes was convicted of first degree murder and he appeals. Reversed and remanded.

Chas. White, of Festus, for appellant.

Jesse W. Barrett, Atty. Gen., and R. W. Otto, Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

At the May term, 1921, of the Jefferson county circuit court, the grand jury of said county indicted Ernest Seward for murder in the first degree, on account of the shooting by him as principal, in the county aforesaid, of one Andrew Deck. The codefendants, Eugene Hayes, Ernest Hayes, William Hayes, Jesse Thomas, Otto Thomas, and Elvie Thomas, were charged in said indictment, as accessories before the fact, etc. A severance was granted to each of the above defendants. At the instance of appellant, Ernest Hayes, a change of venue was awarded, and his cause sent to Iron county, Mo. Appellant waived a formal arraignment, entered a plea of not guilty, was tried in Iron county, and, on October 13, 1921, a jury found him guilty of murder in the first degree, and fixed his punishment at death.:n due time he filed motions for a new trial and in arrest of judgment. Both motions were overruled, and, after judgment and sentence, defendant appealed to this court.

The evidence for the state, briefly stated, tends to show that deceased and the above accomplices resided at Herculaneum, in Jefferson county, Mo.; that James Seward resided at St. Louis, Mo.; that some of Seward's accomplices had been accused of violating the prohibition laws, and that deceased, Deck, was blamed by them for prosecutions instituted against them. They became angry and vindictive toward deceased, and proposed to inflict corporal punishment upon him. Eugene Hayes resided with appellant, who is his father, but spent a portion of his time in St. Louis, Mo. He was acquainted with Seward, and arranged with him "to beat up" the deceased for the consideration of $35. On the afternoon preceding the homicide, which occurred about 15 minutes before 8 o'clock p. m. on February 26, 1921, Seward and Eugene Hayes went to Herculaneum from St. Louis. Eugene Hayes defrayed all of their expenses according to their arrangement. On arriving at Herculaneum, they were met at the railroad station by the Hayes family, named as accomplices. Several conferences were then held between Seward and the above accomplices relating to the prospective punishment of deceased. Shortly before the homicide, armed with a .38 revolver and a "billy" furnished by some of the accomplices, Seward went to the home of deceased. He represented himself as a prohibition enforcement officer, and told deceased that other enforcement officers wanted to see him (deceased), and that his services were needed immediately to help make a "pinch." Seward exhibited what appeared to be a badge of authority, whereupon the deceased prepared to, and did, accompany Seward out on the street. The wife of deceased was in St. Louis at this time, but his five year old boy was with him, whom he dressed before starting. Seward, the deceased, and the boy had only gone a short distance from the Deck home, when Seward provoked a controversy with the deceased, made an assault with the "billy," and then shot him. After being shot, deceased made his way to the home of Aloise Wagner, where he knocked on the door for admittance. Wagner opened the door; deceased fell into his arms, and announced that he was shot. This occurred about three or four minutes after Wagner had heard the report of the fatal shot. Over the objection of appellant, Wagner was permitted to testify that deceased then said he had been shot by a stranger from St. Louis.

After the shooting Seward went to the home of this appellant, and the latter sent Alvie Thomas and Eugene Hayes to St. Louis with Seward in an automobile. Hayes and Thomas returned to Herculaneum the same night. Seward and Eugene Hayes were both arrested in St. Louis about the 1st of June.

Appellant testified in his own behalf, and both he and his witnesses gave testimony tending to controvert the evidence `of the state in respect to his guilt. Such other matters as may be deemed of importance will be considered hereafter.

Opinion.

I. The trial court is charged with error in permitting witness Wagner to detail what deceased told him as to who had shot him. The deceased and the assailant had both left the scene of the shooting, and three or four minutes after deceased had been shot he came to the home of Wagner and there stated who had shot him. In other words,...