State v. McCoy

• Decision Date: 04 October 1892
• Citation: 20 S.W. 240,111 Mo. 517
• Parties: STATE v. McCOY.
• Court: Missouri Supreme Court

20 S.W. 240

111 Mo. 517

STATE v. McCOY.

Supreme Court of Missouri, Division No. 2.

October 4, 1892.

HOMICIDE — CONTINUANCE — TRIAL — EVIDENCE — APPEAL.

1. A continuance because of absence of witnesses will not be granted in a murder case, where defendant knew such witnesses resided out of the state, but had used no diligence to obtain their evidence.

2. Defendant, in a prosecution for a felony, may plead "not guilty" and demur at the same time, and if the demurrer is overruled the trial proceeds on the plea as if the demurrer had not been filed.

3. Where there is sufficient evidence, if credited by the jury, to support a verdict, the verdict will not be interfered with by an appellate court.

4. Evidence on a trial for murder that a mob gathered in the street to storm the jail and lynch the prisoner is irrelevant.

5. Evidence that deceased told defendant that a former lover had come from Omaha, and had threatened to kill her, where not offered as a dying declaration, or a part of the res gestae, is incompetent.

Appeal from Lafayette criminal court, JOHN E. RYLAND, Judge.

William McCoy was convicted of murder in the first degree, and appeals. Affirmed.

P. D. Myer and Hicklin & Welborn, for appellant. John M. Wood, Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted at the April term, 1891, of the criminal court of Jackson county for murder in the first degree for the killing of one Mollie Magruder in said county on the 5th day of April, 1891, by striking her on the head with a stone, and inflicting thereby a mortal wound, from which she instantly died. He was duly arraigned, a plea of "not guilty" entered, and the cause set down for trial June 8, 1891. On his application, a change of venue was awarded, and the cause removed to the criminal court of Lafayette county. At the October term of the Lafayette criminal court the defendant filed a demurrer, assigning two grounds therefor: First, that the grand jurors were not legally selected; second, that the indictment failed to charge the homicidal act was willfully, deliberately, premeditatedly, and of malice aforethought committed. The indictment itself is a complete refutation of the second ground, and the first is meaningless, and both were properly overruled. After the demurrer was overruled, the defendant filed his motion and affidavit for continuance, based upon the absence of two witnesses — Mary Wise, a negro woman, and her daughter, Blanch Wise, a young girl. The affidavit alleged that he could prove by them that on the evening that Mollie Magruder was murdered near the Priest of Pallas building, in Kansas City, defendant was continuously in his room on Belvidere place, a long distance from the place of the homicide, and never left it during all the time; that he had caused a subpœna to issue for them, directed to Jackson county, dated October 10, 1891; that the cause was set down for trial October 12, 1891; that the subpœna was returned "Not found," and that he had learned since the convening of the court that both of said witnesses are residents of Colorado. When this application was made, the prosecuting attorney filed the affidavits of three witnesses, who deposed that about five days after the murder Mary and Blanch Wise moved to Colorado Springs, and have ever since lived there; that this was well known to defendant, and among his friends in that community; that both said Mary and Blanch were subpœnaed by the state for the grand jury, and at the time the change of venue was granted all the witnesses were called to be recognized to appear in Lafayette criminal court; and when said Mary and Blanch were called they failed to respond, and the marshal then and there, in the presence of the defendant and his counsel, Mr. Meyers, stated they had removed permanently to Colorado. Thereupon the court overruled the motion for continuance. There was no error in this. There was no sort of diligence used in trying to obtain the evidence of the witnesses, as was clearly shown by the counter affidavits. State v. Bailey, 94 Mo. 311, 7 S. W. Rep. 425.

The testimony tended to show that Mollie Magruder, the deceased, and the defendant, William McCoy, had been living together for two years as husband and wife, but that they were not married. Mollie Magruder was a negro woman, about 35 years of age, and made her living by washing. Several months before the commission of this murder defendant and deceased had a disagreement and quarrel, and from then to the day when deceased was killed they had frequent quarrels, the defendant on various occasions threatening to kill the deceased. He wanted her to marry him, but she refused to do so on account of his quarrelsome disposition. In order to get rid of him, she had determined upon going to her mother, who was then living in Omaha. She was making preparations to go there when she was killed. The defendant opposed her going, and frequently declared that she should never leave the state, and that she should never live with any other man, and that he would kill her before she should leave him. The killing occurred about 8:20 P. M. on Sunday, April 5, 1891. All day Saturday — the day before — and all day Sunday the defendant and deceased were quarreling, so much so that a sister of the deceased, who was living in the same building, but in different apartments, became uneasy, and sent her little nephew down to watch Mollie Magruder, and give the alarm should the defendant attempt to commit any violence upon her. On the afternoon of Sunday, just before dusk, or a little before dusk, Mollie Magruder called at her sister's room, stating that she was going after some clothing of Mrs. Phelps and Mrs. Hallett, for whom she was to wash the next day. She left there just about dusk, and went for the washing. She first went to Mrs. Phelps,' and from there to Mrs. Hallett's. This was between 7 and 8 o'clock that night. At these places she had the appearance of being troubled on account of the difficulty she and defendant had had that day. She took a bundle of clothes from Mrs. Hallett's, and started on her way back home. The evidence shows that defendant had before that time gone with her after the clothing, and knew exactly the route she usually took. The place where the body was found was near the corner of Lydia avenue and Seventh street. Mollie Magruder and the defendant lived in a hollow known as "Belvidere," a street parallel with and north of Independence avenue. Mollie Magruder's dead body was found near the Priest of Pallas hall, April 6, 1891. The old baseball ground is to be seen there, but it has been filled up level with the surrounding surface. About 8:20 Sunday night a man who lived near the corner — about 200 feet from there — heard three piercing screams in a woman's voice; then, after a short intermission, he heard groans. His wife was sick, and he did not want...