State v. Hill

• Decision Date: 16 February 1918
• Docket Number: No. 20661.,20661.
• Citation: 201 S.W. 58,273 Mo. 329
• Parties: STATE v. HILL.
• Court: Missouri Supreme Court

201 S.W. 58

273 Mo. 329

STATE v. HILL.

No. 20661.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Appeal from Circuit Court, Ray County; F. P. Divilbiss, Judge.

Iza Hill was convicted of murder in the first degree, and she appeals. Affirmed.

Instruction 4b, referred to in the opinion, was:

The court instructs the jury that if you believe from the evidence that a conspiracy existed between defendant and Alonzo Jones to kill Lonnie Hill, then you may take into consideration in this case any acts or declarations you may find from the evidence to have been done or made by any coconspirator in furtherance of the common purpose during the existence of such conspiracy, but you should not take into consideration in this case acts or declarations of said Jones not done or made during the existence of such conspiracy, nor can you take into consideration the acts or declarations of said Alonzo Jones made or done after the death of said Lonnie Hill.

"Common design" means community of intention between two or more persons to do an unlawful act, and it may be established by circumstances or by direct evidence of an express agreement, but before the conspiracy can be established by circumstances, the facts and circumstances tending to show such common design, conspiracy and the connection of the defendant therewith, must be established beyond a reasonable doubt by the evidence in the case, and when so established, such facts and circumstances must not only be consistent with each other and with the defendant's guilty connection therewith, but also absolutely inconsistent with any other reasonable theory.

"Conspiracy," as used in these instructions, is a combination of two or more persons by concerted action to accomplish some criminal or unlawful purpose.

You are also further instructed that in determining whether there was or was not a conspiracy, agreement or common design between the defendant and Alonzo Jones to kill Lonnie Hill, you have no right to consider any declarations or acts made or done by said Alonzo Jones in the absence of the defendant, but can only consider such declarations or acts as were made or done in the presence or hearing of this defendant. The jury cannot consider such declarations or acts of said Jones made and done in the absence of this defendant in order to determine whether said conspiracy or common design existed. If you shall be satisfied beyond a reasonable doubt from the other evidence in the case that such conspiracy or common design existed. If you shall be satisfied beyond a reasonable doubt from the other evidence in the case that such conspiracy or common design did exist between defendant and Alonzo Jones before the death, then and not until then do the acts or declarations of said Alonzo Jones become evidence against the defendant in this case, and then only such acts and declarations of said Jones, as you may find and believe from the evidence, were done and made during the pendency of such conspiracy and in furtherance thereof.

J. E. Black, E. A. Farris, and A. P. Hamilton, all of Richmond, for appellant. Frank W. McAllister, Atty. Gen., and George V. Berry, Asst. Atty. Gen., for the State.

WALKER, P. J.

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 coindictee, 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 stated 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 coindictee, and, before they were out of bed, sought admittance; that he was admitted by her coindictee, Dumas, who remarked to him when he entered, "`Did you do that?' and she says, `Do what?' Jones said, `Yes,' and she again said, `Do what?' and Jones said, `Kill Lonnie Hill; that's what!'" and then he said, "Don't you open your mouth or I will kill you," 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 it 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. 1 Wigmore, Ev. §§ 519 to 524, and notes; 5 Chamb. Mod. Ev. § 3663 and notes; 11 Am. Jurist, p. 362; 15 Colum L. Rev. 467.

The amelioration of the rigors of the common-law punishment for crime is as evident in regard to the admission of testimony as it is in other phases of the history of jurisprudence. Statutes liberal in their latitude in this regard have been enacted not only on account of a more humane disposition to abate somewhat the severity of punishment, but from necessity; it being found that the admission of this character of testimony was of more practical value in the administration of justice than the addition of infamy with its consequent deprivation of civil rights. Bentbam's Rationale of Ev. book 9, Pt. 3, c. 3, quoted at some length in 1 Wigmore, § 519, p. 649, and lucidly epitomized in 1 App. Ev. c. 3.

The common-law doctrine of infamy attendant upon a conviction for crime has never been recognized in its fullness in this jurisdiction. We have...