State v. McAfee

CourtMissouri Supreme Court
Writing for the CourtSherwood
Citation148 Mo. 370,50 S.W. 82
PartiesSTATE v. McAFEE.
Decision Date07 March 1899
50 S.W. 82
148 Mo. 370
STATE
v.
McAFEE.
Supreme Court of Missouri, Division No. 2.
March 7, 1899.

CRIMINAL LAW — APPEAL — RECORD — REVIEW — HOMICIDE — EVIDENCE — MISCONDUCT OF COUNSEL.

1. Rev. St. 1889, § 2304, providing that it shall not be necessary for the review of an action to copy the motion for new trial or in arrest of judgment into the bill of exceptions, if it contains a direction to so copy them, does not apply to a motion to set aside an order setting a cause for trial.

2. Where the evidence whether counsel appearing for the state had, prior thereto, been retained by accused, is conflicting, it will be presumed that the refusal of the trial court to prohibit him from appearing for the state was correct.

3. A ruling on the competency of a witness, to which no exception was saved, will not be reviewed.

4. Being informed that an attempt to rob him on his way home on a certain night would be made, deceased armed himself, and, accompanied by two others, started to go home on the night in question, and, when confronted and fired at by accused, returned the fire, whereupon accused shot and killed him. Held, not to show that deceased consented to be robbed.

5. On an issue whether a witness was an accomplice to a homicide committed in attempted robbery, accused testified that the witness had got him to go to the place in question to meet a couple of girls. The witness testified that accused had asked him to go there to commit the robbery, and, seemingly consenting, he went there unarmed, having first informed the police. Held, that it was unnecessary to submit the issue whether the witness was an accomplice.

6. It is not error to refuse to strike out incompetent testimony admitted without objection.

7. The state is not required to place any given person on the witness stand.

8. In a prosecution for murder in attempted robbery, there being no issue as to self-defense, evidence that a few moments before the homicide deceased attempted to borrow a larger pistol than one he had is immaterial.

9. The garment worn by deceased need not be produced to show the marks made by the shot, but testimony as to its appearance is admissible, it not being secondary evidence.

10. The fact that the charge is incomplete is no ground for a reversal where accused did not except on that ground.

11. A ruling on alleged misconduct of counsel for the state will not be reviewed where the alleged prejudicial language was merely preserved by affidavits, and not in the bill of exceptions.

Appeal from circuit court, Jasper county; Joseph D. Perkins, Judge.

James McAfee was convicted of murder, and he appeals. Affirmed.

John H. Flanigan, T. C. Tadlock, Jas. B. Lloyd, and M. R. Lively, for appellant. The Attorney General and Sam. B. Jeffries, for the State.

SHERWOOD, J.


This record contains the evidence of a murder which occurred in the city of Joplin on Saturday, the 31st day of July, 1897. The circumstances attendant on the perpetration of the crime were substantially these: William Ebin Brewer, the person murdered, was about 24 years of age, married, and lived between Twelfth and Thirteenth streets, on Virginia avenue, and conducted a grocery business about one block due west of his dwelling house. It was his custom, on leaving the store, to pass around the side of the store room through an alley, and into the yard at the back gate in the rear of his house. This alley ran north and south, and the rear of the store lot opened into the alley by a turnstile. On the 26th of July in the year mentioned, one Ben Shoemaker was approached by defendant on the subject of robbing generally. Shoemaker declined at first, but finally told defendant he would see him further, and went away. On Friday evening, the 30th of the same month, defendant approached Shoemaker on the subject of robbing Brewer on the next evening, which was Saturday. Shoemaker seemingly consented, but meanwhile notified the police force of Joplin, and in this way Brewer was informed of the matter, and made his preparations accordingly. About 10 minutes after 11 o'clock on that Saturday evening, Brewer, with his revolver in a paper sack, left the store, with Shulver, his father-in-law, and walked forth towards the turnstile, Shulver having a sack, in which were some washers, which he intended to give to the expected robber, and a box of pepper, also, of which he likewise intended making a similar donation. With Brewer and Shulver, as they left the store, Jeffries went also. Shulver was a little in advance, Brewer next, and Jeffries last of all. Jeffries stopped as they passed the corner of the store, and stepped in behind the end of the store, and walked on probably 15 feet further, and this point was perhaps a little over half way to the alley, where the turnstile was. The...

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15 practice notes
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • 10 Enero 1910
    ...Rowfischet, 12 La. Ann. 382; Goldman v. State, 75 Maryland, 621; Brown v. State, 72 Miss. 95; Dick v. State, 30 Miss. 95; State v. McAfee, 148 Mo. 370; State v. Rapp, 142 Mo. 443; State v. Marks, 140 Mo. 656; State v. Arnewine, 36 Mo. 130; People v. Harris, 136 N.Y. 423; Stephens, 4 Park. C......
  • DiLlon v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • 26 Enero 1909
    ...The weight of authority in this country is certainly against the contention of the defendant. State v. Eaton, 75 Mo. 594;State v. McAfee, 148 Mo. 370, 50 S. W. 82;State v. Barrett, 33 Or. 194, 54 Pac. 807;Ross v. State, 8 Wyo. 351, 57 Pac. 924;Keller v. State, 123 Ind. 110, 23 N. E. 1138, 1......
  • State v. McCarver
    • United States
    • United States State Supreme Court of Missouri
    • 6 Marzo 1906
    ...Welsor, 117 Mo. 570, 21 S. W. 443; State v. Lamb, 141 Mo. 298, 42 S. W. 827; State v. Grant, 144 Mo. 56, 45 S. W. 1102; State v. McAfee, 148 Mo. 370, 50 S. W. Instructions numbered 5 and 7 are criticised upon the ground, as claimed, that they limited the right of defendant to defend himself......
  • State v. Ferguson, No. 20684.
    • United States
    • United States State Supreme Court of Missouri
    • 16 Mayo 1919
    ...is not necessary. State v. Ivy, 192 S. W. 736; State v. Dixon, 190 S. W. 294; State v. Swain, 239 Mo. 729, 144 S. W. 427; State v. McAfee, 148 Mo. 370, 50 S. W. 82; State v. Billings, 140 Mo. 193, 41 S. W. 778; State v. David, 131 Mo. 380, 33 S. W. 28. The assignment, therefore, lacks merit......
  • Request a trial to view additional results
15 cases
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • 10 Enero 1910
    ...Rowfischet, 12 La. Ann. 382; Goldman v. State, 75 Maryland, 621; Brown v. State, 72 Miss. 95; Dick v. State, 30 Miss. 95; State v. McAfee, 148 Mo. 370; State v. Rapp, 142 Mo. 443; State v. Marks, 140 Mo. 656; State v. Arnewine, 36 Mo. 130; People v. Harris, 136 N.Y. 423; Stephens, 4 Park. C......
  • DiLlon v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • 26 Enero 1909
    ...The weight of authority in this country is certainly against the contention of the defendant. State v. Eaton, 75 Mo. 594;State v. McAfee, 148 Mo. 370, 50 S. W. 82;State v. Barrett, 33 Or. 194, 54 Pac. 807;Ross v. State, 8 Wyo. 351, 57 Pac. 924;Keller v. State, 123 Ind. 110, 23 N. E. 1138, 1......
  • State v. McCarver
    • United States
    • United States State Supreme Court of Missouri
    • 6 Marzo 1906
    ...Welsor, 117 Mo. 570, 21 S. W. 443; State v. Lamb, 141 Mo. 298, 42 S. W. 827; State v. Grant, 144 Mo. 56, 45 S. W. 1102; State v. McAfee, 148 Mo. 370, 50 S. W. Instructions numbered 5 and 7 are criticised upon the ground, as claimed, that they limited the right of defendant to defend himself......
  • State v. Ferguson, No. 20684.
    • United States
    • United States State Supreme Court of Missouri
    • 16 Mayo 1919
    ...is not necessary. State v. Ivy, 192 S. W. 736; State v. Dixon, 190 S. W. 294; State v. Swain, 239 Mo. 729, 144 S. W. 427; State v. McAfee, 148 Mo. 370, 50 S. W. 82; State v. Billings, 140 Mo. 193, 41 S. W. 778; State v. David, 131 Mo. 380, 33 S. W. 28. The assignment, therefore, lacks merit......
  • Request a trial to view additional results

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