State v. Johnson

• Decision Date: 18 February 1908
• Citation: 107 S.W. 1072,209 Mo. 346
• Parties: STATE v. JOHNSON.
• Court: Missouri Supreme Court

107 S.W. 1072

209 Mo. 346

STATE v. JOHNSON.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

HOMICIDE — SUFFICIENCY OF EVIDENCE.

Evidence in a prosecution for homicide examined, and held insufficient to justify a conviction of murder in the second degree.

Appeal from Circuit Court, Jackson County; John W. Wofford, Judge.

Frank Johnson was convicted of murder, and he appeals. Reversed.

This cause is now pending in this court upon appeal by the defendant from a judgment of conviction in the criminal court of Jackson county for murder in the second degree. On April 21, 1906, the prosecuting attorney of Jackson county filed an information charging the defendant with murder in the first degree. The party charged to have been killed was one James Carrothers. This killing is charged to have occurred on December 5, 1905. At the January term, 1907, the defendant was put upon his trial. The evidence on the part of the state tended to prove that James Carrothers, the deceased, was a saloon keeper, and that his place of business was located on the corner of First street and Grand avenue, in Kansas City, Mo. He had been engaged in business at that place for something like eight months prior to the time he was killed, which was the evening of the 5th of December, 1905. The deceased's saloon faced the east, and the bar was on the south side, and extended back to an ice box. The saloon was 50 feet long by 20 feet wide, and was in a building which was isolated from other buildings. At 7:30 p. m., on December 5th, Clifford Murray, a street car conductor on the Metropolitan Street Railroad, was passing the deceased's saloon, and saw the deceased's wife upstairs over the saloon, and heard her screaming. Mr. Murray jumped off of his car and entered the saloon. He found the dead body of the deceased sitting on the floor at the west end of the bar and leaning against the ice box. His left hand was down by his side, and his right hand was across his lap. In his right hand was a revolver, which contained one cartridge and four empty shells; and there was no one in the saloon, except a man who was dead drunk. Officer John Julian soon arrived, and identified this revolver as the one that the deceased usually kept in his saloon under the cash register. This cash register was sitting on the front bar with the keys turned toward the back of the bar, and had been removed. The furniture in the saloon indicated that there had been a fierce struggle between the deceased and the person who killed him. The deceased's shirt and collar were torn, and the floor of the saloon was dirty, and the glasses were disarranged and some of them broken. On the front bar was a bullet mark, as if the shot had been fired on the outside and glanced inside of the bar. There was also a bullet mark in the ice box. This bullet was found by Officer Halvey and produced at the trial. It was a copper coated bullet, .38 caliber. Three other bullet marks were found in the ice box, one bullet went into the wainscoting, and another one into the wall of the saloon. One bullet went under the bar and shattered a glass demijohn, and another bullet hole was discovered in the sink, where glasses are washed. The cash register was usually kept on the back bar, and the marks on the bar indicated that it had very recently been moved. The police officers searched the neighborhood of the saloon, and, failing to find any one, telephoned to the police of Independence and other neighboring cities to look out for persons on outgoing trains. Shortly after this shooting, Wm. J. Roberts, night watchman for the Builders' Sand Company, saw a tall white man — seemed to be slender — who had on no overcoat, running along the Missouri Pacific tracks, and trying to catch an east-bound Missouri Pacific freight train. This train was headed toward Independence. At that time the train was very near the crossing of Walnut street, which was one block from Grand avenue. Witness did not see him get on the train. Mrs. Emma White and little daughter were walking along the street, near the Missouri Pacific track, between Grand avenue and Walnut street, going to a grocery store, when they heard a noise in the weeds and looked up. They saw a man come from under some box cars on the side track. This man ran along the side of the cars until he got to a path, and ran down the path, across the road and toward the Missouri river. He was holding his right hand up, and his left hand was down by his side. He was a tall, slender white man, and was wearing dark clothes and a soft derby hat. Witness did not think he had on an overcoat. When Mrs. White reached the grocery store she first learned of the killing of James Carrothers. This witness did not recognize the defendant, who was then in court, as the man she saw running on the Missouri Pacific tracks, and she stated that she was not able to state that he looked like the defendant.

The operator at Independence, having received word to be on the lookout for persons coming into Independence on the night trains, called Officers W. H. Rogers and Ed Booth to the Missouri Pacific depot at Independence. They reached the depot at 9:15 o'clock on the evening of December 5th. They arrived at the depot about the time a Missouri Pacific freight train from Kansas City was coming in sight. The train stopped a short distance west of the water tank. The engine was taken loose, and the conductor was requested to wait a few minutes, so the train could be searched. The train stopped before it reached the switch. At the place where the train stopped, west of the depot, there is a deep cut which extends for some distance on each side. The sides of the embankment are very high, so high that two overhead bridges are constructed across the track. The station agent assisted the officers in searching the train. One man jumped out from the car two or three cars ahead of the caboose, and started away from the train toward the depot. He was wearing an overcoat, had on a black cap and was a small man. He drew a revolver on the station agent, and the station agent allowed him to escape. He started toward the city, and passed around the track toward Lexington. This man was not Frank Johnson. The two officers searched the train, looked under the cars, but failed to find any one in the cars, except two emigrants — a man and his wife. Witness W. H. Rogers testified that he did not see the defendant, Frank Johnson, until about the time the train was leaving the town of Independence. He says that when he first saw Johnson he was about the switches; about two-thirds of the way down from the depot to the bridge. He also stated that he and Mr. Booth, when they saw him coming up the track, walked down to meet him, arrested him, and took him to the depot. In answer to the question as to how he was dressed he said: "I cannot describe his clothes. He had on what looked like light color, but no overcoat." Witness Rogers did not see the defendant, Frank Johnson, get off the train. Saw him for the first time at Independence about the time the train was leaving, some distance from the depot. Ed Booth first saw the defendant at Independence about the time the train pulled out, or shortly afterward. He was about 250 yards away on the railroad, near the point where this train stopped. This witness said: "We walked down and met him. He made no effort to run or get away. We arrested him and took him into the depot and searched him and found nothing on him — no money. He gave his name as Frank Johnson. Was a tall, slender white man, well dressed in dark clothes, a soft derby hat, but had on no overcoat. On being asked where he came from, said he came from St. Louis, and had jumped off the train at Little Blue, and hurt his neck and chin." The defendant had a scratch on his chin a little over an inch long, and on the left side of his neck there were two or three scratches. One of the witnesses gave as his impression that the scratches were finger prints. The defendant said these marks were made when he jumped off of the train and struck a switch flag, east of Independence, as he was coming in that evening. When Officer Halvey came to Independence the defendant said that he had just been in Warrensburg, but did not say where he came from.

Coroner Thompson visited the scene of the shooting a short while after it occurred and found upon the body of the deceased an undershirt and celluloid collar, which were torn, and a pair of pants. This clothing had bullet holes in them. A gunshot wound entered between the thumb and the index finger of the deceased, ranging back about four inches, and, coming out, making a ragged wound in the right hand. The second wound was found in the top of the head of the deceased,...