State v. Hill, 33732.

• Decision Date: 01 December 1934
• Docket Number: No. 33732.,33732.
• Citation: 76 S.W.2d 1092
• Parties: STATE v. HILL et al.
• Court: Missouri Supreme Court

76 S.W.2d 1092

STATE v. HILL et al.

No. 33732.

Supreme Court of Missouri, Division No. 2.

December 1, 1934.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

John Hill and another were convicted of first degree murder, and they appeal.

Affirmed.

Marion W. Johnson, for appellants.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.

WESTHUES, Commissioner.

Appellants were convicted, in the Jackson county circuit court, of murder in the first degree, and each sentenced to imprisonment in the state penitentiary for life. From this judgment an appeal was taken.

The brief for the state contains a fair statement of the case, which we have adopted. It reads as follows:

"The deceased, Henry Clarity, was murdered in Kansas City, Mo., on the 9th day of March, 1933. Henry Clarity was not married, although he and Lucille Clarity were living together as husband and wife. Lucille Clarity was a sister of appellant John Hill. John Hill lived at No. 1206 Virginia street, and about three or four days previous to March 9, 1933, Henry Clarity and Lucille Clarity moved to the home of John Hill. On the evening of March 9, 1933, Lucille Clarity came from her work about 6:30 in the evening to 1206 Virginia street. At that time Henry Clarity was out in front of this address working on an old Haynes car, which belonged to the appellant Tom Haynes. Lucille Clarity went into the apartment, and soon thereafter her brother John Hill came in and advised her that he wanted her and Henry to move out of the apartment. While this conversation was going on, Henry Clarity came into the room, and the appellant John Hill told Henry that he wanted them to move out for the reason that Henry had been running around with some other women. Henry left the apartment and came out in the hall, and about that time the appellant Tom Haynes, who had been out in the kitchen, came up threatening to strike Henry with a knife. Lucille Clarity got between Henry and Tom Haynes and went out into the street in front of the apartment. Henry Clarity then started for the home of his mother, which was on the south side of Twelfth street and between Lydia and Paseo streets. Tom Haynes came running out with a knife in his hand and started after Henry. Henry then started to run up to Twelfth street. The appellant Tom Haynes ran after Henry and shortly thereafter the appellant John Hill came out of the apartment and started after Henry. They caught Henry at the intersection of Twelfth street and Virginia. Haynes commenced to strike Clarity with a knife. Clarity broke away from Haynes, and, after running about one hundred feet further, Haynes again caught him and commenced cutting him. Lucille Clarity attempted to prevent Haynes from cutting Clarity. The appellant John Hill ran across a vacant lot and shot twice at Clarity. Lucille Clarity attempted to hold back her brother, appellant Hill, but he knocked her down. Clarity again broke away from the appellants and attempted to get into his mother's home. The course he had taken was from 1206 Virginia over to his mother's home on Twelfth street, between Lydia and Paseo.

"When Clarity reached his mother's home he was prevented from entering the house by the appellant Haynes, who placed himself between Clarity and the door. Haynes at that time had a knife in his hand. After Clarity was prevented from entering his mother's home, he started running north on Paseo and turned into an alley running east and west, which was back of the New York apartments located at the corner of Twelfth and Paseo. He was followed into the paved alley by the appellants, Hill and Haynes. There Clarity fell on his face and the appellant Haynes got astraddle of the body and commenced cutting him with the knife. The appellant Hill was standing on the side of Clarity and was raising his head and cutting him on the throat and stomping the body. Clarity bled freely and died in the alley while the two appellants were attacking him. Hill and Haynes were apprehended in the alley. Hill had a striped-handled knife, and this knife was identified as the knife with which he was doing the cutting. A white-handled knife covered with blood was also found a short distance from where the body lay. At the time of the arrest the appellant Hill had a gun on his person.

"When the deceased was examined, it was discovered that he had received about fifteen serious cuts of various lengths and depths, and the coroner stated that he came to his death as a result of these wounds. Both appellants took the witness stand and claimed that they killed Clarity in defense of their lives. Appellants sought to prove that Clarity had shot Haynes and that Haynes used his knife upon Clarity in self-defense. The appellant Haynes admitted he told Officer Lebaugh that he had killed Clarity. There was some testimony which tended to bear out the contention of the appellants that Clarity had been the aggressor."

Only two points were preserved in the motion for new trial for our review: First, the sufficiency of the evidence to sustain a conviction of murder in the first degree; and, second, error was assigned to the action of the trial in permitting the state to use the wife of appellant Haynes as a witness against him.

If the state's evidence was to be believed, and the jury settled that question, appellants were guilty of a most cruel atrocious murder. The circumstances corroborated the state's theory of the case. Witnesses testified to seeing appellants assaulting the deceased and the deceased on several occasions fleeing from appellants and trying to escape, only to be overtaken and again assaulted. The last assault occurred in an alley where both appellants were seen inflicting numerous wounds on deceased and beating and kicking him while deceased was lying helpless on the ground. That such evidence justified a verdict of murder in the first degree needs no citation of authority.

The second assignment of error reveals a...