State v. Hill
| Decision Date | 16 February 1918 |
| Parties | THE STATE v. IZA HILL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ray Circuit Court. -- Hon. F. P. Divilbiss, Judge.
Affirmed.
J. E Black, Eugene A. Farris and Albert P. Hamilton for appellant.
(1) Defendant's motion in arrest of judgment should have been sustained for the reason the information failed to charge the defendant with any offense. And because there is a total variance between the offense alleged in the information and the proof in this cause. (2) Alonzo Jones was incompetent as a witness in this cause, because at the time his testimony was given he was under sentence of life imprisonment in the penitentiary. Sec. 6376, R. S. 1909; Ex Parte Marmaduke, 91 Mo. 228. (3) The testimony given by Dr McGaugh as to alleged poisoning of Lonnie Hill was incompetent and should not have been admitted, for the reason defendant was shown to have had no connection therewith. (4) Testimony as to facts transpiring since the culmination of the alleged conspiracy was incompetent and should have been refused. (5) Proof of a conspiracy should first be introduced and no evidence is competent before the proof of the conspiracy has been made.
Frank W. McAllister, Attorney-General, and George V. Berry Assistant Attorney-General, for the State.
(1) The information charges with certainty all the essential elements of the crime and follows well-considered precedents. State v. Barrington, 198 Mo. 36; State v. Myers, 198 Mo. 232; State v. Spivey, 191 Mo. 91; State v. Thomas, 99 Mo. 256; State v. Burns, 99 Mo. 273. (2) It was not error to permit Alonzo Jones, under life sentence for his part in the murder, to testify, as he was a competent witness. Sec. 6383, R. S. 1909; Kelly's Crim. Law & Prac., sec. 268; State v. Grant, 79 Mo. 113; State v. Long, 82 Mo. 82; State v. Landrum, 127 Mo.App. 658; Sutton v. Fox, 55 Wis. 540; Wills v. Ind. Ter., 15 Okla. 196; Barbee v. Okla. Ter., 16 Okla. 569; State v. Sullivan, 20 R.I. 119. (3) It was not error to permit evidence of a former attempt of defendant to murder Lonnie Hill. It was competent to show motive, intent, general purpose, and a common scheme or plan. State v. Spaugh, 200 Mo. 594; State v. Collins, 181 Mo. 259; State v. Bailey, 190 Mo. 279; State v. Dettmer, 124 Mo. 433; State v. Jones, 171 Mo. 407; State v. Rudolph, 187 Mo. 84; State v. Rasco, 239 Mo. 575; State v. Weisman, 238 Mo. 555; State v. Hyde, 234 Mo. 224; People v. Molineux, 168 N.Y. 264. (4) The State was not in error in the admission and rejection of evidence; and if any errors were committed, they were fully cured by the instructions. State v. Napper, 141 Mo. 405; State v. Whelan, 148 Mo. 290; State v. Bateman, 198 Mo. 222. (5) The instructions given by the court were so full, clear and plain that the jury could not go astray thereunder. (a) Number 4 defines the crime of murder in the first degree, fixes the responsibility of each conspirator, and tells the jury what is necessary to find from the evidence before they can find the defendant guilty. State v. Thomas, 78 Mo. 337; State v. Shout, 263 Mo. 373. (b) Number 4b, on conspiracy, was correct in form and substance. State v. Bobbitt, 242 Mo. 284; State v. Truenell, 79 Mo.App. 245; State v. Davis, 80 Mo. 244; State v. Darling, 216 Mo. 459; State v. Othick, 180 S.W. 108. (c) Number 4c, on weight of testimony of co-conspirator, was correct under the law. State v. Grant, 79 Mo. 113; State v. Long, 82 Mo. 82; State v. Taylor, 98 Mo. 244. (d) Number 5, on the uncorroborated testimony of any accomplice alone, was in correct form. State v. Sassman, 214 Mo. 729; State v. Kock, 142 Mo. 524; State v. Walker, 109 Mo. 109. (e) Number 6, on credibility of witnesses and weight of testimony, is in correct and many times approved form. State v. Knock, 142 Mo. 523; State v. Hudspeth, 159 Mo. 200; State v. Thomas, 78 Mo. 341; State v. Henderson, 186 Mo. 492; State v. Hicks, 92 Mo. 434. (f) Number 9, submitting three forms of verdict, was in approved form. Appellant cannot complain of the form which told the jury they might assess the death penalty, as the jury fixed a lower punishment. She made no objection to this form when it was given. State v. Stockwell, 106 Mo. 40; State v. Wheeler, 108 Mo. 664; State v. Bobbitt, 215 Mo. 31; State v. King, 203 Mo. 571; State v. Goldsby, 215 Mo. 57. (6) The law does not require that the conspiracy be proved before acts and declarations thereunder can be shown. State v. Walker, 98 Mo. 103; State v. Shout, 263 Mo. 373; State v. Copeman, 186 Mo. 109.
The appellant and one Marshall Dumas were charged in an information filed by the prosecuting attorney of Ray County with murder in the first degree. A severance was granted and at the February Term, 1917, of the circuit court of said county, appellant was tried and the jury failing to agree, the case was continued until the May Term, 1917. Upon a trial at this term appellant was convicted as charged and her punishment assessed at life imprisonment in the penitentiary. From this judgment she appeals.
Lonnie Hill, the party charged to have been murdered, was the husband of the appellant. At the time of his death he was in the employ of a citizen of Richmond. The last time he was seen alive was on the evening of September 18, 1916. The next morning, not having attended to his usual duties, his employer went to his room to ascertain the cause of his neglect. He found the deceased lying across the foot of his bed on his face. Calling to him and receiving no reply, the employer caught hold of him and found not only that he was dead but that rigor mortis had set in. Upon the body being turned over, the face of the deceased and the adjacent wall, not before noticed, were found covered with blood. After the removal of the body to an undertaker's several wounds, which appeared to have been inflicted with a sharp instrument, were found on the head and neck of the deceased. The wound on the neck had severed the jugular vein. This, as well as the wound in the head, which pierced the skull, was sufficient to produce death. Circumstances indicative of a guilty connection with the crime led soon thereafter to the arrest of appellant, her co-indictee, and one Alonzo Jones, the latter being separately charged with complicity in the crime. Upon the information being filed against him, he entered a plea of guilty and was sentenced to a life term in the penitentiary. It is principally upon his testimony that the jury found the appellant guilty. The parties are all negroes. The animus for the crime, as stated by Jones, was to procure $ 371 from an industrial insurance company in which the deceased held a policy payable to his wife, the appellant. Jones, while serving his sentence in the penitentiary, was taken therefrom and testified at the trial. He testified that he was hired by appellant to go from Kansas City to Richmond to kill the deceased upon the promise that she would pay him therefor $ 125 when she secured the money on the insurance policy; that in consummation of this conspiracy, he went to Richmond and killed the deceased and returned to Kansas City. The appellant testified that she had known Jones slightly for two or three years, but had never entered into a contract with him or anybody else to kill her husband; that she knew nothing of the latter's death until early one morning when Jones came to the house, where she was living with her co-indictee and before they were out of bed, seeking admittance; that he was admitted by her co-indictee, Dumas, who remarked to him when he entered, and jumped at her with a knife.
There was also testimony that appellant had attempted to poison the deceased with strychnine tablets dissolved in alcohol several months before his death. This she denied.
The motion for a new trial preserves these alleged errors for consideration: Permitting Alonzo Jones who was in the penitentiary under a life sentence for the murder of the deceased, to testify against the appellant; admitting illegal and incompetent testimony as to an attempted poisoning of the deceased by appellant without showing any connection between that offense and the one with which the appellant was charged; in giving instructions numbered 4, 4a, and 4b, on the part of the State; in giving instruction 4c; improperly instructing the jury as to punishment; the sufficiency of the information to charge any offense; variance between the offense charged and the proof of same; and because there was no adequate proof of any conspiracy.
I. The contention as to the sufficiency of the information is not well founded. In charging the crime of murder all of the required essentials are employed. That the information abounds in tiresome iteration is true, but in its employment the pleader but followed time-worn precedents, always the safest course so long as a simpler and less prolix system of criminal pleading is not expressly authorized.
II. It is urged that error was committed in permitting Alonzo Jones to testify on behalf of the State while undergoing a life sentence in the penitentiary. Under the common law he would have been incompetent. This rule of exclusion, so far as it affects the right of one convicted of crime to testify, has long since been abolished, not only in England, but in the greater number of our States.
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