State v. Howell

• Decision Date: 19 May 1890
• Parties: STATE v. HOWELL.
• Court: Missouri Supreme Court

14 S.W. 4

100 Mo. 628

STATE v. HOWELL.

Supreme Court of Missouri.

May 19, 1890.

HOMICIDE — EVIDENCE — INSTRUCTIONS.

1. On indictment for murder it appeared that at about half past 10 at night a farm house, in which deceased and her mother lived, was discovered to be on fire, and both persons were burned to death. Tracks were found in the snow leading from a straw-stack to the house, along which straw was scattered as if it had been carried to the house for the purpose of starting the fire. The tracks led to B., seven miles distant, where they were lost near the railroad. The party following the tracks found the railroad men and others in pursuit of a man who was running among the freight-cars. He ran from there to a point near an hotel, when he was lost sight of. The pursuers, on inquiring at the hotel, found that a man had just registered, and on going to his room discovered defendant. On being arrested and told that a house and the occupants had been burned, he said, "I haven't been to the country to-night," though no one had told him the house was in the country. When found in his room, his clothes were wet, and his pants drabbled up to the knees. A pistol and a partly used box of matches were in his pocket. A number of witnesses testified that the man they were pursuing wore similar clothes to those of defendant. Some witnesses claimed to identify defendant as the same man. The overshoes found in defendant's room fitted the tracks. There was evidence that defendant, who had previously lived at the burned house, had improper relations with the mother, and had tried to have an abortion committed; and that defendant had said that "the damn child will have to be gotten rid of," and tried to persuade witness to see a doctor about performing an abortion. After the fire a fœtus was found covered up in the cellar of the house. Held, that the evidence was sufficient to sustain a verdict of murder in the first degree.

2. On trial for murder evidence of the good character of defendant is always to be considered by the jury, whether the case is doubtful or not.

3. On trial for murder an instruction that defendant must establish an alibi by a preponderance of the evidence, before the jury can regard such defense, is error. It is only necessary that the evidence offered to show an alibi raises in the minds of the jury a reasonable doubt as to defendant's guilt. Overruling State v. Jennings, 81 Mo. 185.

Appeal from circuit court, Linn county; G. D. BURGESS, Judge.

A. W. Mullins, for appellant. The Attorney General, for the State.

RAY, C. J.

In this case the defendant, Joseph A. Howell, was indicted for the murder of Nettie Hall. The indictment contains three counts. The first charges that defendant shot and killed Nettie Hall with a revolving pistol. The second charges, in substance, that defendant, with some heavy instrument or weapon to the jurors unknown, did forcibly strike and beat the said Nettie Hall, crushing, fracturing, and breaking her skull, giving her a mortal wound, of which she instantly died. The third count, in effect, charges that defendant assaulted said Nettie Hall in some way and manner, and by some means, instruments, and weapons to the jurors unknown, and thereby did kill and murder the said Nettie Hall. On this indictment the defendant was tried, found guilty of murder in the first degree, and sentenced accordingly, from which, after unsuccessful motions for new trial and arrest, he appealed to this court. The evidence offered by the state was entirely circumstantial. Defendant's counsel insists that the evidence disclosed by the entire record is insufficient to justify or support the verdict. This question makes it necessary that a somewhat extended statement of the facts and circumstances in evidence should be made, and to that end such of them as are deemed material will appear in the progress of this opinion. Mrs. Minnie Hall, widow of Ansel Hall, and her four children, the eldest about 10 and the youngest about 3 years old, resided on a small farm about five miles southwest of Brookfield, Linn county, Mo. Nettie Hall, with whose murder defendant stands charged, was one of the four children, then about 5 years old. Joseph A. Howell, the defendant, was a first cousin of Mrs. Hall, about 24 years old, and came to that neighborhood from Ohio, where he was raised, in March, 1887, some 18 or 20 months before this tragedy, stopping for a few days first at Sumner, Chariton county, Mo., with his aunt, Mrs. Brooks, the mother of Mrs. Hall. From there he came to Ansel Hall's, then living, where he remained a week, and from there he went to Mr. James Hall's, the father-in-law of Mrs. Hall, about one-half mile distant on the west, where he remained that spring and summer, working as a farm hand, and from there he went to Newkirk's, a neighbor, where he continued as a farm hand until he commenced teaching school at Prairie Mound, about five miles south-west from Mrs. Hall's, and was so engaged up to the night of the alleged murder. In the afternoon of January 19, 1889, the defendant went on foot from his boarding-house in his school-district to Brookfield, where he arrived about dark, or half after 5 o'clock. While en route to Brookfield that afternoon, about 4 o'clock, he passed by and stopped at Mrs. Hall's for a short time, from 6 to 10 minutes, and obtained some articles of clothing from a trunk of his that had been left there, containing some books, summer clothing, and other articles. Mrs. Hall, it seems, had been doing his washing while living in that vicinity, and this trunk had been left at her house in the mean time. After leaving Mrs. Hall's, the defendant was met by Mr. James Hall in the road near his house, going north, on foot, towards Brookfield. The snow had then commenced falling, and, with brief intervals, continued to fall that afternoon, during the early part of the night, and up to midnight, and got to be three or four inches deep. At about half after 10 o'clock that night a neighbor, residing about a half mile distant on the west, discovered Mrs. Hall's house, a one-story frame building, to be on fire, and enveloped with flames. Two men went immediately from this neighbor's to the building. They went around the house, but did not then discover any persons within. It was all ablaze, and, in the language of the witness, presented "one big round of flame," so that nothing within could be seen. Other parties soon came, when it was discovered that there were lifeless persons in the midst of the flames, supposed to be Mrs. Hall and her children. R. N. Vorce, describing the persons thus seen in the midst of the flames, their position and appearance, in substance says: He "saw Mrs. Hall close up to that side of the house. * * * The bed was partly burned down, and the bedding was on the floor. Right there I saw Mrs. Minnie Hall. Her clothes were on, but they were charred. * * * She was down on her knee, near the bed, in this position, with her head thrown back. That he and Smith got a ten-foot pole and a clothes line, and threw it around her, and tried to get her out, but could not. While we were thus engaged, the floor gave way, and these parties went down in the cellar." The little girl Nettie Hall, it seems, when the floor gave way, went down right at the cellar door, and Vorce and Smith, with the aid of a rod about 16 feet long with a crook on the end, succeeded in rescuing her body from the burning building. The remains of the other bodies, it seems, were not taken from the ruins until some time the next day. They were burned beyond recognition, but from the circumstances, as before stated, were believed to be those of Mrs. Hall and her children.

Before proceeding, however, with what appeared on a careful examination of these remains, as well as the cellar under the house, the day after the fire, it is proper to state what else transpired on the night of the fire, and immediately following the burning of the house and its occupants. Shortly after the neighbors reached the burning building, the track of some person was discovered near the house, and between it and a pile of hay or straw near by, and along this track straw was scattered as if dropped in being carried to the house, where it appears to have been used in igniting and burning the building and its occupants. This track started south, a short distance, where it turned, and went north, in the direction of Brookfield. Four young men, Lisher, Scouton, Smith, and Hall, were deputed to follow the track, see where it led, and if possible detect and arrest the party making it. About midnight they started in pursuit, and followed its meandering course, regardless of roads, through inclosures, brush, timber, and prairie until it reached the railroad, west of Brookfield; thence down the railroad to the trestle across Elk creek, where it left the railroad, crossed the fence, and went up (southeast, it seems) into the city by the Clark Hotel, and further east and north, where it was lost somewhere about 60 yards south of the railroad, as will further appear hereafter. It may here be remarked that the pursuing party, in following this winding track, traveled about seven miles, and were about two hours on the way; that there was no break in the track they followed; that no other track connected with, crossed, or intercepted it in any way; that no track was seen coming from any direction to or in the direction of Mrs. Hall's, nor was any seen by the pursuing party, while en route, coming from the direction of Brookfield, or going towards Mrs. Hall's. At the trestle over Elk creek the pursuing party divided. Two of their number, Smith and Hall, followed the railroad to the depot to inquire about the trains, notify the railroad officials and others what had occurred, and request their co-operation in discovering and capturing the party in question. The other two, Scouton and Lisher, followed the track where it left the railroad...