State v. Jones

• Decision Date: 28 March 1913
• Citation: 155 S.W. 33,249 Mo. 80
• Parties: STATE v. JONES.
• Court: Missouri Supreme Court

155 S.W. 33

249 Mo. 80

STATE v. JONES.

Supreme Court of Missouri.

March 28, 1913.

1. HOMICIDE (§ 156) — EVIDENCE — OTHER OFFENSES.

In a prosecution for the murder of a hackman, in which it was shown that one of the hackmen present when the crime was committed had driven a brother-in-law of deceased to a car shop in which a strike had been declared, evidence that there had been a strike and that a mob of strikers assaulted the brother-in-law, who had refused to join the strike, was inadmissible to show malice on the part of accused toward deceased, where there was no showing that he participated in the assault individually or as a conspirator.

2. CRIMINAL LAW (§ 304) — JUDICIAL NOTICE.

The court cannot take judicial notice that all persons who go on a strike are desirous of committing murder.

3. CRIMINAL LAW (§ 1169) — REVIEW — HARMLESS ERROR.

Where evidence of another crime is admitted on promise of the state to connect accused with it, which is not done, and it appears that the evidence was introduced to prejudice the jury against accused, its admission will be deemed prejudicial error.

4. HOMICIDE (§ 156) — EVIDENCE — MALICE.

In a prosecution for the murder of a hackman, evidence that there had been a strike declared by employés of a car shop, one of whom was accused, and that one of the hack drivers present when the killing occurred had driven a brother-in-law of deceased, who had refused to strike, to the car shop was admissible to prove malice.

5. HOMICIDE (§ 7) — MOTIVE.

Motive is a very vital matter in case the identity of the party who committed the crime is in doubt, or where the claim is that the unlawful act was the result of accident; but it is not so important when the accused admits the killing and relies on self-defense.

6. CRIMINAL LAW (§ 448) — EVIDENCE — BELIEF AS TO DANGER.

An accused in a prosecution for murder, in which self-defense is relied upon, may testify that he believed his life was in danger when he did the killing.

7. CRIMINAL LAW (§ 1171) — ARGUMENT OF COUNSEL — HARMLESS ERROR.

Where accused's counsel admitted in the opening statement that accused had been convicted of horse stealing, any error of the prosecuting attorney, in argument, in speaking of accused as a horse thief would not justify a reversal.

8. CRIMINAL LAW (§ 724) — ARGUMENT OF COUNSEL.

Where, in a homicide case, there is evidence that accused killed deceased without provocation, argument of counsel in calling accused a murderer is not erroneous.

9. CRIMINAL LAW (§ 720) — ARGUMENT OF COUNSEL — FORMER CONVICTION.

In a prosecution for murder, the prosecuting attorney should not urge a conviction because of accused's former conviction of horse stealing, when the court has correctly charged the jury that such conviction might be considered only for the purpose of affecting his credibility.

10. WITNESSES (§ 360) — FORMER CONVICTION — IMPEACHMENT.

Where a former conviction is admitted in a criminal case to discredit accused as a witness, accused cannot show any facts impeaching the judgment of conviction.

In Banc. Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

John L. Jones was convicted of murder, and he appeals. Reversed, and new trial ordered.

Defendant stands convicted of stabbing and killing one Akins Milton Mackey, in Pettis county, on November 20, 1911, and from a judgment of the circuit court of that county fixing his punishment at death, he appeals.

A very fair outline of the case made by the state will be obtained by quoting the salient parts of the evidence of witness Charles L. Hollingsworth, who testified as follows: "A. They was at the Katy depot, and we was all standing there talking and Mr. Jones came up, and he didn't speak to Mr. Mackey, but he was looking right at Mr. Mackey, and asked Mr. Mackey, `Who hauled this man, Vinson, the day before?' And Mr. Mackey replied, he said he didn't know. Mr. Mackey wanted to know then why he wanted to know. `Why,' he says, `he drawed a gun on a boy at the shops, and they swore out a warrant for him;' and he wanted to know how they got along with him. Mr. Mackey asked Mr. Jones, `What made him draw this gun?' Mr. Jones wouldn't tell him; says, `We ain't putting out a thing,' he says, `especially to you fellows,' `you hack drivers,' or something like that. That's the words he said, and then Mr. Mackey's team got scared and started to run, and Mr. Mackey run after the team, and Mr. Jones run in and stabbed him. Q. How far did Mr. Mackey have to run to get to his team from where he was standing? A. About 12 or 13 feet. Q. When he was running to get his team, was he running towards or away from the defendant Jones? A. He was running away from him. Q. And just state what Mr. Mackey did when he reached where his team was? A. He grabbed the lines. Q. Now, how were the lines fixed, Charley, so the jury will understand? A. They was wrapped around the hub of the wheel, and Mr. Mackey run up to grab the lines, and put his left hand on top of the wheel and his right hand ahold of the lines." Hollingsworth further testified that Jones looked like he was mad and held his right hand in his front pants pocket when he first came down where the hacks were standing. That, immediately after the stabbing took place, Jones' hat was on the ground, but witness did not know how it came to be there. Hollingsworth further testified that, after Mackey was stabbed and fell, he (Hollingsworth) and others started towards Mackey's body, whereupon Jones slashed at them with his knife.

The evidence of witness Hollingsworth was strongly corroborated by five other witnesses for the state. These witnesses were standing from 10 to 15 feet from Mackey and Jones, but did not hear any quarrel nor see any hostile demonstration on the part of Mackey whatever. One witness for the defendant, who was present at the tragedy, testified that, while Mackey struck defendant before the stabbing took place, the defendant was not knocked down.

Defendant's account of the killing is as follows: "Q. What conversation occurred there in the presence of Mr. Mackey, Mr. Jones? The Court: That conversation has been gone into. A. Well, I asked the question if any of them knew whether or not Sheriff Henderson had got back to town with Mr. Vinson. And this man, Mr. Mackey, says, `I don't know. Why?' `Well,' I says, `I heard this morning there had been a warrant sworn out for him, and the sheriff had went after him.' And Mackey says, `What in the hell do you know about it?' I says, `I don't know anything about it.' I wasn't supposed to know, because I wasn't there. `Well,' he says, `what was the warrant sworn out for?' I says, `I understand Mr. Vinson made a gun play out at the Katy shops yesterday at noon.' And Mr. Mackey says, `Are you a carman?' I says, `Yes, sir.' He says, `Where is your card?' I says, `I have none.' I says, `I have nothing but my receipts to show I have paid my dues.' Red Baldwin says, `He is a carman all right.' And Mr. Mackey was standing on the foot step of the Terry Van when I was talking to him, and he stepped off onto the sidewalk. Q. In which direction? A. Why he stepped off south from where he was standing, and stopped southeast of me. I was standing near the edge of the curbing. And he says, `You may have to know something about it.' `Well,' I says, `I ain't putting out anything to-day.' I told him, `That's all right;' and I made a step or two backwards, and went to turn. Mr. Mackey says, `You son of a bitch,' and he hit me right behind the ear [indicating] and knocked me off the curb into the street. Q. Now, then, what happened, Mr. Jones? A. He followed me up and hit me right along back there [indicating], and knocked me to my knees, and, as I straightened up, I turned facing the south, and Mr. Mackey hit me one lick right over my heart, and knocked me down [indicating], and I went flat, and he made a rush towards the front wheel of the second rig from the east. It was a carriage. And he reached down below the hub of the wheel towards a brickbat that was laying there, and I thought my life was in danger — Mr. Steele [interrupting]: We object to that, and ask that it be stricken out. The Court: Objection sustained. Strike out what he thought. (To which action and ruling of the court in sustaining said objection and in granting said motion to strike out, the defendant then and there duly excepted at the time, and still excepts.) Q. Then what occurred? A. When I got on my knees, I took my knife out of my right-hand pants pocket, and opened it while I was on my knees, and grabbed Mr. Mackey by the overcoat and pulled myself up, and he straightened up. He saw the knife and throwed his right hand down in his overcoat pocket, and I struck him with the knife [indicating all the time]. Q. How many times did you strike him with the knife? A. I don't know."

Defendant was corroborated by one witness, and partially corroborated by two others. One witness called by the state, who was standing about 60 feet from the parties, testified that, immediately before the stabbing, he heard Mackey say to defendant, "You are a damn liar; you will do nothing."

Mackey was killed with a pocketknife, the blade of which was about three inches long.

As we find the judgment must be reversed for errors hereafter noted, it is unnecessary to give a more detailed statement of the evidence. It is sufficient to say that the testimony on the part of the state, if true, is sufficient to sustain the verdict of the jury imposing the death penalty upon defendant, while the evidence on the part of defendant, if true, would have justified the jury in finding a verdict of murder in the second degree, or manslaughter in the fourth degree.

Claude Wilkerson and W. G. Lynch, both of Sedalia, for appellant. Elliott W. Major, Atty. Gen., John M. Dawson, Asst. Atty. Gen. (Perry S. Rader, of Jefferson City, of counsel), for the State.

I. Evidence of Another Crime.

BROWN, J. (after stating the facts...