State v. Hottman

• Citation: 196 Mo. 110,94 S.W. 237
• Parties: STATE v. HOTTMAN.
• Decision Date: 22 May 1906
• Court: United States State Supreme Court of Missouri

94 S.W. 237

196 Mo. 110

STATE v. HOTTMAN.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

1. HOMICIDE — INFORMATION — ALLEGATION OF INSTRUMENT CAUSING DEATH.

An information charging murder may charge that it was committed by the use of more than one weapon.

2. SAME.

An information charging murder need not allege that the weapon with which it was committed was a deadly weapon.

3. JURY — CHALLENGE TO THE ARRAY.

The rule of the common law that a challenge to the array must be in writing is in force unless abrogated by statute.

4. SAME.

On January 9th a panel of 47 jurors was selected to try a homicide case, none of whom were challenged by accused, who took the time allowed by statute to make his peremptory challenges. When the court convened, two days later, accused objected to the entire panel on the ground that on the day set for trial a newspaper published what purported to be a confession of accused, and that the jurors had in consequence thereof a fixed opinion. Accused offered as an exhibit the newspaper containing the publication. The court on its own motion examined each juror, and found that four of them had read the purported confession and had formed an opinion. The court overruled the challenge to the array, but sustained it as to the four, discharging them, and proceeding to draw 15 other names from which to fill up the panel. Held, that accused was not prejudiced by the action of the court.

5. CRIMINAL LAW — REVIEW — OBJECTIONS AND EXCEPTIONS — NECESSITY.

A party desiring the court on appeal to review any matter of exception on the trial must make his objection and save his exception at the time, and repeat it in his motion for a new trial.

6. SAME — CONFESSIONS — ADMISSIBILITY.

On the issue of the admissibility of the confession of accused on trial for homicide, the court inquired into the circumstances under which the confession was made, in order to ascertain whether it was voluntary. The witnesses to whom the confession was made stated that defendant was not offered any clemency, and that no threats were made, and were not contradicted. Held, that the confession was properly admitted in evidence.

7. HOMICIDE — DEGREES OF MURDER — EVIDENCE.

Evidence on a trial for homicide examined, and held not to justify the submission of the issue of murder in the second degree.

8. CRIMINAL LAW — TRIAL — INSTRUCTIONS — ASSUMPTION OF FACTS.

Where, on a trial for homicide, there was no evidence of any provocation, it was proper for the court to so state to the jury in its instructions.

9. HOMICIDE — EVIDENCE — SUFFICIENCY.

Evidence on a trial for homicide examined, and held to support a conviction of murder in the first degree.

Appeal from Criminal Court, Jackson County; John W. Walker, Judge.

Frank Hottman was convicted of murder in the first degree, and he appeals. Affirmed.

Welborn & Urfer, for appellant. The Attorney General and John Kennish, for the State.

GANTT, J.

This is an appeal from a judgment and sentence of the criminal court of Jackson county, at Kansas City, Mo. On the 25th of July, 1904, the prosecuting attorney of Jackson county filed in open court an information charging the defendant with the murder in the first degree of Clarence Myers at said county, on the 11th day of May, 1904. The information is in the exact form of that set forth in full in the opinion in State v. Maggie Myers (handed down this day, 94 S. W. 242, save and except that in the information in this case Frank Hottman, the defendant, is charged with said murder, whereas in that case Maggie Myers is charged with the same. Upon an arraignment and plea of not guilty, the defendant was put upon his trial and convicted of murder in the first degree. Motions for a new trial and in arrest of judgment were duly filed, heard, and overruled, and sentence pronounced, from which this appeal is prosecuted. Inasmuch, as the testimony in this cause is in all material respects the same as that detailed in the statement accompanying the opinion in State v. Myers for the same murder, it is deemed unnecessary to restate it here, further than to reproduce the two confessions made by the defendant.

One was made at Walla Walla, Wash., at which place defendant was arrested, while living there under the name of W. K. Ballard, after the homicide. The statement or confession at Walla Walla is in the words following: "My name is Frank Hottman. I left Higginsville on the 5th or 6th of May, 1904, for Kansas City, on noon train. Mrs. Myers met me at the depot. The deed was planned at Higginsville on Mrs. Myers' last visit there. Met her several times during my stay in Kansas City. Mrs. Myers let me in at the kitchen door on the morning of the 11th of May, 1904. We proceeded to the room where Myers was sleeping. He was lying in bed when we came in, and got up. Myers said, `Here you are agin,' and I hit him with the butt of billiard cue which I had brought from home with me. He clinched me and we fell on the bed. I was on top of him. He struggled free, and I grabbed him and held him, while Mrs. Myers stabbed him with a razor, cutting his throat first. He grew weak, and I let him down on the floor, and she bent over him and stabbed him again and again. We agreed to shield one another. I remained there about 10 minutes, and she let me out at the back door. She said after the matter was quieted she would come to me. She gave me about $10 in money, saying it was all the money she had. I left that morning for St. Joe, after going back to my room and sleeping for a while. On train between Kansas City and St. Joe I took off my shirt, which showed blood on the sleeves, and threw it away. My hat I left in the room where the struggle had taken place, and I took Myers' hat, which I have with me now. I stopped at St. Joe three or four days. From there I went home to Higginsville, arriving there on the last train at night. Stopped home three days, left there on the 19th or 20th, went then to Omaha, crossing the river at Glasgow, taking Wabash train, changing near Omaha. Bought ticket from Omaha to Walla Walla. Arrived at Walla Walla on Tuesday, May 24th. Stopped here several weeks, went to work on Eureka Flats, and remained there until 20th of June. I make this statement because it is the truth, without fear or reward. Frank Hottman. Witness to signature: D. H. Oldham, Chas. S. Painter."

After defendant was apprehended and brought back to this state, he voluntarily made another confession, which is as follows: "Kansas City, Mo., July 12, 1904. My name is George Frederick Franklin Hottman. I am usually known by the name of Frank. I was 20 years old the 22d day of last March. I was born in Saline county, Mo. I have been living in Higginsville, Mo., about 15 years. I have known Maggie Myers, whose maiden name was Maggie Brock, about 10 years. She was married once before to a man by the name of Payne. I think his first name was Rob. I never worked here in Kansas City. Some time last November I came up to Kansas City and stayed here until some time in December. While I was here I stayed part of the time at Mr. Brock's, the father of Maggie Myers, and a part of the time I stayed at the Myers house. I didn't get any work here, and then I went back to Higginsville. I came up to Kansas City again — I think it was in February, 1904 — and stayed at the Myers house a couple of days or so. Then I went back to Higginsville. Some time in April, 1904, I think it was, Maggie Myers came down to Higginsville and visited with my folks. She and I went buggy riding and were around together while she was there. We were pretty fond of each other while she was visiting us at Higginsville. The day we were out buggy riding together we talked about running away together. We had talked about it before. I wanted her to run away with me, and she said she would not do that while she was married to Clarence (that's her husband's name). She then said: `We can get rid of him. We can kill him.' I said, `No; I don't want to do that,' and she said, `That's the only way to do.' She said, `It won't do to run away, because Clarence will follow us.' We talked it over for some time, and talked how we had better do it. Maggie said, `The best way is to hit him with a club,' and I said, `I can get a billiard cue, which will be just the thing.' Then we planned that she should come on to Kansas City and I should follow in a few days and do the job. We planned that we should kill him at night, while he was at home asleep. She came on home, and I came as far as Odessa on the train with her. Then I went back to Higginsville. My grandfather had a billiard cue which he used as a cane. I cut a part of it off and took the heavy end of it. Maggie had been home about a week when I came to Kansas City and brought the heavy end of the billiard cue with me. I got here in the evening. Maggie Myers met me at the Union depot. We stayed there together two or three hours, I guess. We talked about killing Clarence. I told her I had the billiard cue. She said we could kill him any time we could catch him at home. She said she would let me know some night when he would be at home. We arranged to meet at the Union depot the next morning. She met me the next morning as we had agreed. We went over in Kansas City, Kan., to a rooming house on Minnesota avenue. We stayed there together two or three hours, I guess. I came part of the way back with her. We arranged to meet each other near the post office the next day. She met me, and we walked around town. We talked some about getting rid of Clarence. She said she expected him to be home every night, and said we could get rid of him any time now. We planned to do it that night. She told me to come that night to the back door a little after 1 o'clock and she would be there to let me in. I had a room on Union avenue, opposite the depot. I registered as Ed. Hartman. I left there about 8 o'clock in the evening, and before leaving told the clerk to have me...