State v. McAfee

• Decision Date: 07 March 1899
• Parties: STATE v. McAFEE.
• Court: Missouri Supreme Court

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 others kept on. When they nearly reached the turnstile, defendant, who had been crouching down beside the fence (along with Shoemaker, who was unarmed), arose, and, presenting a pistol towards Shulver and Brewer, said something which Jeffries did not understand, and then fired a shot, which, as afterwards ascertained, struck the rim of Shulver's hat. Then Brewer, stepping to the front of Shulver, returned the fire, and then defendant fired directly at Brewer, and this, it appears, was the fatal shot that killed the latter. Jeffries states that the end of defendant's pistol was not more than about a foot and a half away from Brewer when defendant fired, and that the flash of the powder went into Brewer's clothes, and that the pistol was pointed at his breast; Shulver and Shoemaker both testifying that when defendant arose from behind the fence he presented the pistol, and said, "I want what you got," or words to that effect, and then began firing. Shulver and Shoemaker both unite in stating that defendant fired the shot which resulted in Brewer's death, and Brewer, in his dying declaration, also stated that defendant gave him his death wound. He said to his brother, "McAfee killed me," and, being asked if he was sure of it, said: "Yes, I can see his face now. I have got his face on my memory." Brewer, staggering under his mortal hurt, managed to get through the turnstile, and reached his home. Shulver, acting as some one predicted he would, threw the pepper, but got it in his own eyes, and came very near being shot by Frank English, a policeman, who was stationed on towards the south of the alley, and on the watch for defend...