State v. Henderson

• Citation: 186 Mo. 473,85 S.W. 576
• Parties: STATE v. HENDERSON.
• Decision Date: 21 February 1905
• Court: United States State Supreme Court of Missouri

85 S.W. 576

186 Mo. 473

STATE v. HENDERSON.

Supreme Court of Missouri, Division No. 2.

February 21, 1905.

HOMICIDE — CORPUS DELICTI — EVIDENCE — SUFFICIENCY — CONFESSIONS — CAUTIONARY INSTRUCTION — CRIMINAL LAW — WITNESS — STATUTE.

1. Rev. St. 1899, § 2517, provides that when an indictment is found by the grand jury the names of all the material witnesses must be indorsed thereon, that other witnesses may be subpœnaed or sworn by the state, but that no continuance shall be granted to the state on account of the absence of any witness whose name is not indorsed of the indictment, unless on the affidavit of the prosecuting attorney, showing good cause. On a prosecution for homicide a number of witnesses testified to the existence of ill feeling between defendant and the deceased, and also as to threats by defendant against the deceased. Held not error to admit the testimony of a witness whose name was not indorsed on the information, but who testified that she had told the prosecuting attorney, before the information was filed, what her testimony would be; her testimony being merely cumulative on the subject of threats by defendant against the deceased, and it appearing that she lived in the immediate neighborhood, so that her character could easily have been impeached had her testimony been untrue.

2. On a prosecution for homicide it appeared that the house of the alleged decedent, who lived alone therein, was burned, and that after the fire the charred remains of a man were found in the ashes, and by the side thereof the metal portion of a pocketknife of peculiar shape, such as he was known to carry. From that time until the date of the trial the alleged decedent was never seen alive, almost five months having elapsed between the date of the alleged homicide and the filing of the information. No motive was suggested why he should have fled the country. All of his children and grandchildren lived in the neighborhood. There was also proof of confessions by the defendant of his having participated in the killing of decedent, and saturating the house with oil, and setting fire thereto, for the purpose of hiding the crime. Held sufficient to establish the corpus delicti.

3. There is no error in refusing to charge on murder in the second degree on a prosecution for homicide, where the evidence made it incumbent on the jury either to acquit or convict of murder in the first degree.

4. On a prosecution for homicide, where there was evidence by witnesses, almost wholly disinterested, of confessions by the defendant of his guilty participation in the alleged crime, and no attempt was made to impeach them or to contradict their testimony by proof of facts contrary to what they had sworn, and the statements were in no sense casual, but were the direct and positive statements of the defendant, fully corroborated by facts in evidence outside of his admissions, the refusal and failure to give a cautionary instruction as to the duty of the jury in considering the evidence of the alleged confessions was not cause for reversal.

Appeal from Circuit Court, St. Charles County; H. W. Johnson, Judge.

Allen Henderson was convicted of murder in the first degree, and he appeals. Affirmed.

C. J. Daudt and W. F. Achelpohl, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, J.

From a conviction of murder in the first degree, defendant appeals.

The prosecution was by information, filed by the prosecuting attorney of St. Charles county on September 7, 1903, charging that defendant, on the 12th day of April, 1903, willfully, deliberately, premeditatedly, and of his malice aforethought did make an assault in and upon one Joseph Buckner, and a certain shotgun, then and there charged with gunpowder and leaden balls, then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did discharge and shoot off to, at, against, and upon one Joseph Buckner, and that the said Allen Henderson with the shotgun aforesaid, and the leaden balls aforesaid out of the gun aforesaid, then and there, by the force of the gunpowder aforesaid by the said Allen Henderson discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did strike, penetrate, and wound him the said Joseph Buckner, in and upon the right side of him the said Joseph Buckner, giving to the said Joseph Buckner then and there with the deadly weapon, to wit, the shotgun aforesaid, and the leaden balls aforesaid discharged and shot out of the shotgun aforesaid by the said Allen Henderson, in and upon the right side of the body of him the said Joseph Buckner, one mortal wound of the depth of six inches and of the breadth of eight inches, of which mortal wound the said Joseph Buckner then and there instantly died. It was further alleged that Price Edwards was then and there, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, present, aiding, helping, assisting comforting, and maintaining the said Allen Henderson, in the felony and murder aforesaid, in the manner and form aforesaid, and by the means aforesaid, at the time and place aforesaid to do and commit. "And so Theodore C. Bruere, prosecuting attorney aforesaid, upon his oath aforesaid, does say that the said William Henderson and Price Edwards him the said Joseph Buckner at the time and place aforesaid, in manner and form aforesaid, and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought did kill and murder, against the peace and dignity of the state." A second count with the same technical precision alleged the murder to have been committed by pouring coal oil on the deceased and setting the same afire, and burning him up, with the building in which he was living at the time. The information was duly verified. A motion to quash was filed and overruled. The defendant was duly arraigned, and pleaded not guilty.

The evidence tended strongly to prove the following facts: "Joseph Buckner, an aged negro man, lived by himself in the country near Wentzville, in St. Charles county. His dwelling consisted of three rooms, two below and one above. On Easter, the 12th day of April, 1903, some of his children visited him at his home, and that afternoon he went to the house of his son William Buckner, and took dinner with William and his wife, Agnes. He left their home about 5 o'clock in the afternoon, in his usual state of good health, to return to his home. That night his house was totally destroyed by fire, and his body consumed. Early next morning his son William and his neighbors went to his home and discovered the charred remains of a human being in the ashes of the burnt building. The skull and trunk of the body were sufficient to show the form of a man, and the metal portion of a knife he was known to carry was found by the body, and some metal buttons. From that day until the date of the trial, in February, 1904, Joseph Buckner was never seen alive by any of his family. It appeared that Price Edwards had married the daughter of Joseph Buckner, but the daughter had left Edwards and was not living with him at the time of the burning of her father's house; an unfriendly feeling existed between Edwards and the old man, Joe Buckner. Price Edwards lived about one-fourth of a mile from the old man, with his children. The evidence also established that the defendant, Allen Henderson, was in the habit of visiting Price Edwards frequently about the date of the homicide; that he and old Joe were at outs over the killing of Joe's dog by defendant. There was evidence of threats made by the prisoner against deceased; that defendant had stated some weeks before the killing of old Joe that he had had trouble with the old man, and had loaded his gun and revolver and had taken his razor and started to kill him, but he desisted, he said, because the Lord told him not to kill him. That some time in February, 1903, he said he intended to kill the old man just like he did his dog, and that pretty soon. To another witness, Johnson, he said he and the old man had had some words about a dog; that the old man accused him of killing the dog, and that he did shoot the dog. He said, "I will tell you, Johnson, that old man don't have to fool with me at all, because I am going to kill him if it is the last thing I do." Johnson advised him not to kill him, but just whip him, to which defendant replied: "No, I am going to kill him before the snow is off; the night ain't got no eyes. You will read in the papers about me before this snow goes off." The evidence of Price Edwards' two daughters was in substance that, on the day their grandfather's house was burned, their father, Price Edwards, left in the morning and went to Wentzville, and returned in the afternoon; that, after he left, the defendant, Allen Henderson, came to their house about noon, and one Bruz Costilo also came that day about noon. All these parties were negroes. Defendant and Costilo lolled around the house after dinner until Price Edwards returned late in the afternoon. About 6 o'clock in the afternoon the defendant, addressing Price Edwards and Costilo, said: "Come on, boys, let's go. We are going to put a stop to it this evening" — that they were going to kill old man Joe. The three left, Edwards saying he was going to Hubbard's. After they had been gone a few minutes, the defendant returned and got a shotgun, and again left. Later still, the defendant came back and got a can of coal oil that had been filled the day previous. About 10 o'clock that night Edwards and Costilo came back and took the children out to the edge of the field, and they saw Joseph Buckner's house burning. Edwards saw it first. He heard the fire popping, and said there was something afire. They went out, and he said the old man's house was burning. Defendant also returned to the...