State v. Keller
| Decision Date | 23 February 1915 |
| Citation | 174 S.W. 67,263 Mo. 539 |
| Parties | THE STATE v. IDA M. KELLER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. Andrew A. Whitsitt, Judge.
Affirmed.
D. C Barnett, Charles W. Sloan and Allen B. Glenn for appellant.
(1) The court erred in refusing to consider the application of defendant for a change of venue. The application was in due form as required by statutes. Previous notice had been given to the prosecuting attorney before the trial was commenced and before either party had been called on to announce whether ready for trial or not. Kelley, Criminal Practice (3 Ed.), sec. 321; Secs. 5176, 5179, 5180, 5183, R. S. 1909; Reed v. State, 11 Mo. 380; State v. Lehman, 182 Mo. 443; Corpenny v. Sedalia, 57 Mo. 88; Douglass v. White, 134 Mo. 228. (2) The following named jurors, to-wit: H. M. Halcomb, A. S. Gentry, E. E Coleman, A. J. Patterson, T. F. Phillips and W. F. Hodkins being of the forty selected, were accepted by the court as qualified against the objections of the defendant, on the grounds that they had formed an opinion as to the guilt of the defendant which it would take positive evidence to remove. Sec. 5220, R. S. 1909; State v. Brooks, 92 Mo. 542; State v. Culler, 82 Mo. 623; State v Robinson, 117 Mo. 649; State v. Pushon, 133 Mo. 44; State v. Taylor, 134 Mo. 109. The fact that a juror may have read in a newspaper what purported to be a confession of guilt on part of defendant would be well calculated to make an impression prejudicial to defendant -- one hard to remove even by evidence. (3) The court erred in admitting the written confession of defendant for the reason that defendant promptly repudiated the same after learning the full nature of it, and because said confession was obtained by the detective, witness Harry Arthur, through duress and intimidation, so that the same was not the voluntary act of said defendant. State v. Young, 119 Mo. 495; State v. Naughton, 221 Mo. 398; State v. Lehman, 175 Mo. 619; State v. Thornton, 245 Mo. 440; State v. Thomas, 250 Mo. 189; Couselman v. Hitchcock, 124 U.S. 547; Ammons v. State, 18 L.R.A. (N. S.) 768, 80 Miss. 592. The circumstances detailed by defendant and not contradicted showing that she was summoned before the coroner's jury, and the ordeal through which she passed under the investigation and probing by the detective Arthur who admits in his evidence that he had at the time a pistol on his person showed defendant's confession was not voluntary. See cases last cited. (4) The court erred in excluding the testimony of witness D. C. Barnett to show that he had been unable to get defendant's little boy to talk with him at all; when it was already in evidence on the part of witness Arthur, detective, as to a conversation he had with the little boy. (5) The State having introduced evidence tending to show some disagreement between the defendant and her deceased husband about selling or trading the property where they lived, and it appearing from the evidence that the title to said property was in fact the separate property of defendant, the court erred in refusing to give instruction number one asked on behalf of defendant to the effect that the defendant had the legal right to sell and convey said property without the consent of her husband, and without his signing the deed if she saw proper. Bank v. Hageluken, 165 Mo. 443.
John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
(1) The requirement of the statute that reasonable previous notice must be given is not to be held meaningless. It was never contemplated that the statute should be used as an instrument for delay and appellate courts are not required to close their eyes to the disclosures of the record. State v. Bletz, 171 Mo. 537; State v. Davis, 203 Mo. 621. The ruling of the trial court as to the granting of a change of venue will not be disturbed unless there are circumstances of such a nature as to indicate an abuse of the discretion lodged in such court. Only when the trial court so far palpably violates the discretion lodged in him as to preclude the defendant from having an impartial trial will the appellate court intervene. State v. Shaffer, 253 Mo. 334; State v. Anderson, 252 Mo. 101; State v. Barrington, 198 Mo. 23; State v. McCarver, 194 Mo. 717; State v. Rasco, 239 Mo. 535; State v. Sharp, 233 Mo. 283. (2) Where a juror on his voir dire examination declares that his opinion is not such as to bias or prejudice his mind, and that his opinion will readily yield to the evidence in the case, he is a competent juror. State v. Schumeback, 243 Mo. 538; State v. Church, 199 Mo. 629; State v. Darling, 199 Mo. 188; State v. Sykes, 191 Mo. 75; State v. Brennan, 164 Mo. 507; State v. Bronstine, 147 Mo. 520; State v. McGinnis, 158 Mo. 105. The ground upon which a juror is challenged must be stated. Simply objecting to a juror as being disqualified is not sufficient. State v. Bobbitt, 215 Mo. 44; State v. Taylor, 134 Mo. 142; State v. Reed, 137 Mo. 132; State v. McGinnis, 158 Mo. 118; State v. Evans, 161 Mo. 108; State v. Myers, 198 Mo. 247; State v. Depley, 242 Mo. 474. (3) A statement to the accused by the person having him in charge to the effect that it will be better for him to tell the truth about the matter, will not annul the confession. Hawkins v. State, 7 Mo. 190; State v. Patterson, 73 Mo. 695; State v. White, 17 Kan. 221; State v. Anderson, 96 Mo. 24. The fact that the defendant is in charge of an officer is no objection to a confession, if no threats were made and no promises were given defendant. State v. Wooley, 215 Mo. 683; State v. Simon, 50 Mo. 370; State v. Carlisle, 57 Mo. 102; State v. Shackleford, 148 Mo. 493; State v. Vaughn, 152 Mo. 73; State v. Barrington, 198 Mo. 23; State v. Armstrong, 203 Mo. 554; State v. Stebbins, 188 Mo. 387; State v. Church, 199 Mo. 205; State v. Brooks, 220 Mo. 74; State v. Wilson, 223 Mo. 173; State v. Green, 220 Mo. 642. Confessions, elicited by questions put to a prisoner by an officer or by a private person, are admissible in evidence against the prisoner. State v. Stebbins, 188 Mo. 387; State v. Barrington, 198 Mo. 23; State v. Curtis, 97 Mass. 578; Rex v. Unchurch, 1 Moody C. C. 465; Rex v. Wild, 1 Moody C. C. 452; Rex v. Thornton, 1 Moody C. C. 27. It is no objection that the confession is made in response to questions which assume the guilt of defendant. State v. Barrington, 198 Mo. 23; Rex v. Thornton, 1 Moody C. C. 27. In the absence of actual promises or threats, mere threatening circumstances will not exclude the confession. State v. Armstrong, 167 Mo. 257; Rice v. State, 47 Ala. 38; State v. Ingram, 16 Kan. 14. The presumption is that confessions have been freely made until the contrary appears. State v. Armstrong, 203 Mo. 559; State v. Meyers, 99 Mo. 119; People v. Barker, 60 Mich. 295; Com. v. Culver, 126 Mass. 464; 1 Chitty's Crim. Law, 571.
Defendant, prosecuted in Cass county upon an information charging her with murder in the first degree, for that, as it was alleged, she had killed her husband, was convicted and her punishment fixed by the jury at imprisonment in the penitentiary for the term of her natural life. After a futile motion for a new trial, she has appealed.
The record is voluminous, but the salient facts and the facts which we think sufficiently make clear the points which it has become necessary for us to discuss, are substantially as follows:
Arthur Keller, the deceased, for whose murder defendant was here prosecuted, was the husband of defendant and lived with her and the three children born of the marriage in Harrisonville in said Cass county. Deceased was a laborer, employed as a section hand on the railroad. The house in which deceased and defendant lived belonged to the latter; she was desirous of selling or trading it for farm land in order that she might move to the country. The deceased was opposed to selling or trading the property, and his reluctance in this behalf had, it seems, already caused the falling through of one or more contemplated trades therefor that defendant had arranged. For this reason and on account of other family jars these spouses had not gotten along very well together for some several years. The exact date at which trouble began is a little obscure from the record, but the testimony takes it back either to 1910 or 1911 (the witnesses themselves did not definitely recall the year), and these strained relations continued down to the date at which Arthur Keller was murdered. The proof of the crime consisted largely of a confession, of which more anon, and of circumstantial evidence, and so much is said above as to strained relations because motive was sought to be eked out therefrom.
In the night following June 9, 1913, at about the hour of 1:20 in the morning, one Bagshaw, a neighbor of the Kellers, was awakened by someone tapping on the window and calling his name. He got up, opened the door and saw defendant on the porch. She told him that some unknown person had broken into her house and murdered her husband and her little girl Margaret. She had in her hands at the time an axe and a lantern. She asked Bagshaw to call Dr. Overholzer, a physician; but upon Bagshaw's inquiring of her the telephone number of the physician, she replied she would call him herself and thereupon did so. She then picked up the lantern and the axe and went back home, and was followed there some ten minutes thereafter by the witness Bagshaw and one Mrs. Kline, likewise a neighbor. These persons found deceased lying on the bed struggling for breath and found defendant bathing the face of the little girl. Both deceased and the little girl Margaret,...
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