State v. Jackson

• Court: Missouri Supreme Court
• Writing for the Court: White, J.
• Citation: State v. Jackson, 2 S.W.2d 758, 318 Mo. 1149 (Mo. 1928)
• Decision Date: 18 February 1928
• Docket Number: 28390
• Parties: The State v. Marion Jackson, Appellant

2 S.W.2d 758

318 Mo. 1149

The State v. Marion Jackson, Appellant

No. 28390

Supreme Court of Missouri

February 18, 1928

Appeal from Butler Circuit Court; Hon. Robert I. Cope Special Judge.

Reversed and remanded.

Thomas H. Henson and M. W. Henson for appellant.

The peremptory instruction offered by defendant at the close of the whole case should have been given: (1) In a murder case where the State seeks to convict on circumstantial evidence the proof of motive is of prime importance. State v. Johnson, 209 Mo. 346; State v. Francis, 199 Mo. 671. (2) There cannot be a conviction of murder in the first degree when all the evidence is no more than a mere suspicion. State v. Francis, 199 Mo. 671; State v. Johnson, 209 Mo. 346; State v. Buckley, 274 S.W. 74. (3) Where there is positive evidence of no conspiracy and no evidence of a conspiracy, the jury cannot assume that there was a conspiracy. (4) When a person is charged with aiding and abetting in a murder case, there must be some evidence of an agreement between the parties to carry out their criminal intent. State v. Bell, 289 S.W. 619; State v. Odbur, 295 S.W. 734.

North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.

The evidence, though largely circumstantial, was sufficient. The evidence of witness Charles Rose of the conversation between the admitted killer of Mary Jackson and the defendant was strong evidence of a conspiracy or concert of purpose. Coupling this with the guilty knowledge of defendant as shown by his directions to witness, Hazel, his little daughter, that she should tell inquirers that her stepmother went toward Pettipool's, and with the tender age of Earl, who struck the fatal blow, according to his own admissions, a situation is presented which raises more than a suspicion of guilt. Add to that the strong motive for the crime shown by the statements, made by defendant prior to the killing to witnesses Cooper, Wilkerson and Pettipool, and it is difficult to see how the jury could have arrived at any other verdict.

OPINION

White, J.

The defendant appeals from a judgment following a verdict of the jury in the Circuit Court of Butler County, August 2, 1927, finding him guilty of murder in the first degree, and assessing his punishment "at balance of natural life in penitentiary."

The information charges that Earl Jackson murdered Mary Jackson, wife of the defendant, and that he was incited and moved to that deed by his father, the defendant. Earl Jackson was a boy fifteen years of age at the time. Mary Jackson was the second wife of Marion Jackson. Besides Earl Jackson, Marion Jackson had by a former marriage one daughter, Hazel Jackson, eleven years old, and another son whose age is not given. There was one daughter, three years old, by the second wife, the deceased.

That Earl Jackson committed the murder is undisputed. The principal point urged in the case is that the evidence was insufficient to submit to the jury the question of the defendant's guilt in procuring his son to commit the murder.

Earl Jackson was the principal witness for the State. His testimony shows him to be callous, brutal and utterly indifferent as to the enormity of the deed which he committed. He spoke of his stepmother as "that woman" in brusquely telling his story. On the seventh day of October, 1926, in the forenoon, by some means he induced her to go to the field with him. He said they went hunting. When he saw her last in the field she was dead; she got killed; he killed her with an axe. He then went to the house, got a shovel, dug a shallow grave and buried her. He said he killed her "because she said she aimed to kill me if I didn't kill her." He denied that he had any conversation with his father, the defendant, in relation to the matter before the deed or afterwards. Several days later the body was found by another boy while hunting.

Marion Jackson, defendant, went to town that forenoon and did not return until later in the day. Earl testified that he went hunting with his father in the afternoon and they were gone about two hours.

The prosecutor then asked him to tell the jury what he had told him, the prosecutor, about it. The witness said:

"I didn't tell you the truth about it."

Then these questions:

"Q. When did you tell the truth? A. I have never told the truth about this case.

"Q. Are you telling the truth now? A. Yes.

"Q. What did you kill Mary Jackson for? A. Nothing.

"Q. What did you kill Mary Jackson for? A. She said she aimed to kill me if I didn't kill her."

He stuck to this preposterous statement, that she invited her own death by telling him that she was going to kill him if he didn't kill her first. He offered no explanation as to how that conversation arose.

The State then introduced Frank Cooper who said that one day about a week before Mary Jackson was missing the defendant rode with him in his wagon, and told him that he was going to "get shut of Mary one way or another," and said: "Frank, I will give you a ten-dollar bill if you will beg my wife away from me and never let her come back." This witness admitted that he had been convicted of perjury, but claimed that he was innocent of that crime.

Three weeks or a month before Mary Jackson disappeared Lawrence Wilkerson had a conversation with the defendant in which defendant said he wanted to get rid of his wife; she was hard to get along with and he would like to get rid of her in some way.

Herman Pettipool testified that he had a conversation with defendant before Mary Jackson disappeared, in which defendant said he would like to "get shut of her and asked me what would I do to get shut of her."

Charles Rose, police officer, testified he was watching the jail in which Earl Jackson and Marion Jackson were confined while a former trial of the case was in progress, and heard a conversation between Earl Jackson and Marion who talked from their cells opposite each other on the hall. In that conversation Marion said to Earl:

"Hazel didn't tell all of it the way we told her to tell it, but she told part of what we told her; she did fairly well for a girl of her age."

He then said:

"I am very much surprised at the State;" And,

"We had better hush, Son, until we hear what happened in this case; there might be somebody listening and we don't want to say too much until we hear what happens."

Hazel Jackson, eleven-year-old girl, testified for the State. She said her stepmother went with her brother Earl up in the field the day she disappeared, and Earl came back to the house after about thirty minutes. That was about eleven o'clock. Her father went to town that forenoon. When asked what her father said to her, she answered: "He told me to tell that she (Mary) went towards Mr. Pettipool's, or they would come and get him and he would never get to see me and little Irene any more." She repeated that statement several times.

From her testimony this girl appears to have been appallingly ignorant. She was asked if she knew what Mr. Kearby, the prosecuting attorney, was trying to do. She answered: "He is trying to clear Papa." She said that nobody had told her that, and when asked where she got the idea she made no answer. She didn't know whether her father's attorney was unfriendly to her, but she thought Mr. Kearby was friendly to her. In answer to a question she said she did not know what an oath was. She was asked if she knew she had taken an oath a minute ago, and her answer was "no."

The defendant testified on his own behalf that he never made the statements...