State v. McGinnis

• Decision Date: 12 November 1900
• Citation: 59 S.W. 83,158 Mo. 105
• Parties: STATE v. McGINNIS.
• Court: Missouri Supreme Court

59 S.W. 83

158 Mo. 105

STATE v. McGINNIS.

Supreme Court of Missouri, Division No. 2.

November 12, 1900.

CRIMINAL LAW — HOMICIDE — JURY — QUALIFICATIONS — COURTS — WITNESSES — INTERPRETER — VOLUNTARY STATEMENTS — INSTRUCTIONS — ALIBI — EVIDENCE — APPEAL — REVIEW.

1. Where a juror in a murder trial testified on the voir dire that he had read partial accounts of the murder in the newspapers, and had formed an opinion therefrom, which he retained, but could give the defendant a fair and impartial trial, the juror was not disqualified to try the case.

2. A general objection to the qualification of a juror to try the case, which does not specifically point out the reason of the disqualification, will not be reviewed on appeal.

3. Where a witness for the state for whom an interpreter was appointed was present in court, so that the judge could determine the necessity of an interpreter, and no showing was made by defendant as to witness' ability to speak English, such appointment was not error, it being within the discretion of the trial court.

4. Where the trial court struck out statements volunteered by a witness for the state in a trial for murder which were not responsive to the questions asked him, and which were prejudicial to defendant and inadmissible, and instructed the jury to disregard all evidence which had been stricken, the fact that such statements were made is not ground for reversal, since the trial court did all in its power to remedy their prejudicial effect.

5. Where an indictment for murder did not allege an attempt at robbery, but the evidence tended to show that defendant had shot the deceased while attempting to procure money from deceased by force or threats, an instruction that, if the jury believed that the deceased was wounded by defendant in attempting to perpetrate a robbery on him, they should find defendant guilty, was not erroneous, since the attempt to procure money by force or threats constituted robbery, and supported the instruction.

6. An instruction that the defense of an "alibi" was a proper and legitimate one "if proved," and if the jury have a reasonable doubt of defendant's presence at the place of the commission of the crime charged they should acquit, the use of the words "if proved," though unfortunate, is not reversible error, since the last part of the instruction stated the law.

7. Where no instruction was asked by defendant to caution the jury in regard to the verbal admissions and statements, and no exception was taken to court's failure to so instruct, such failure will not be considered on appeal.

8. Defendant was seen passing along the road near where deceased lived just prior to the killing of deceased. Deceased's wife testified that deceased had gone out just at dusk to look after his stock; that she heard him in conversation with some one, and that he ran into the house excitedly, and shut the door, when some one shot through the window, and wounded him, from which he afterwards died; that immediately after the shot a man came into the house, and demanded money of her, but passed into another room; that she lighted the lamp, which the shot had put out, and the man came into the room, and again demanded money of her, taking her out into the yard with him, after which he went away. After defendant's arrest she identified him as the man. The doctor who removed the bullet from deceased testified that the bullet was of the kind which were especially made to fit the pistol taken from defendant on his arrest. Evidence of admissions and statements of defendant tending to connect him with the crime was introduced. There was evidence tending to establish an alibi, which was contradicted by other evidence. Held, that the evidence was sufficient to justify a verdict of murder in the first degree.

Appeal from circuit court, Bates county; W. W. Graves, Judge.

Noah McGinnis was convicted of murder in the first degree, and he appeals. Affirmed.

Silvers & Silvers, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted for murder in the first degree in the circuit court of Bates county at the June term, 1899. He was duly arraigned, and pleaded not guilty. On his trial, at the February term, 1900, he was found guilty of murder in the first degree, and from the sentence on that verdict he appeals to this court.

The evidence tended to prove the following facts:

About 7:30 o'clock on Sunday evening, April 16, 1899, Frederick Borcherding, a German farmer living on his farm in the southern portion of Bates county, Mo., went out of his house to look after his stock in the barn lot north of his dwelling. His wife, Margaret Borcherding, was left in the house, and one Arthur Collingsworth, a man employed about the premises, was in bed asleep in the upper story of the house. While Borcherding was outside, his wife, as testified to by her upon the witness stand, heard a conversation between her husband and some other party, at the close of which Mr. Borcherding ran excitedly into the house, and slammed the door in the face of the said person, who, it seems, was pursuing him. Immediately thereupon a shot was fired from a pistol through the window, and Mr. Borcherding fell wounded upon the kitchen floor. This wound resulted in Borcherding's death, a few days later. After the shot was fired a man came into the house, and demanded money of Mrs. Borcherding. It was dark in the house at this time, the light having gone out at the time the pistol shot was fired. The robber laid his hand upon Mrs. Borcherding as if to silence her (for she was screaming), and, showing her a pistol, commanded her to be quiet. He turned her loose, however, and went into a room behind the kitchen. Mrs. Borcherding then lighted the lamp, which had gone out at the time the pistol shot was fired, and the hired man, who had been awakened by the shot of the pistol, the screams of Mrs. Borcherding, and the cries of her wounded husband, came downstairs into the kitchen, and, at the command of Mr. Borcherding, went into another room for a gun. The robber then entered the kitchen, and looked at Mr. Borcherding as he lay wounded upon the floor, and, taking hold of Mrs. Borcherding, took her out of the house into the yard, where, as Mrs. Borcherding testified, he made repeated demands upon her for money. The hired man, stepping back into the kitchen, saw through the open doors the forms of Mrs. Borcherding and the robber on the outside, but could not distinguish the face of either, and, upon the trial, was able to give no other description of the robber than that he wore a long coat. Failing in his attempt to get money, the robber soon left the premises, going out into the road in front of the place. It was a moonlight night, and Mrs. Borcherding testifies that the robber wore a rubber coat, lined inside, a large slouch hat of grayish color, and had his trousers in his boots. She further stated that while she was with him on the outside of the house he rolled together something in paper, and lighted it. Other witnesses testified that defendant was a cigarette smoker. A few days later the defendant was arrested, and brought to Mrs. Borcherding's house for identification, and upon the trial she testified that he was the same man who had committed the crime. At the time of his arrest defendant had on his person a 38-caliber Colt's revolver, $65 in money, and a ticket to Nevada, Mo. He was taken to the house of Borcherding, and was identified by Mrs. Borcherding as the robber who shot her husband.

C. Kugler testified that just after the shooting he came to Mr. Borcherding's house from a northwesterly direction, and that as he reached the gate he heard the sound of the beating of horse's hoofs along the road west of the place; that from the sound the horse must have been going very fast.

Something like a dozen witnesses testified that on the evening of the day on which the murder was committed, at about 4 or 5 o'clock, they saw three men riding along the road in the direction of Mr. Borcherding's house. These men were one B. Merchant and one Ed. Abel, who rode in a wagon, and the defendant, who rode a horse either along by the side of the wagon or behind it. The defendant wore a slouch hat of light color, and had a bundle, apparently a coat, strapped behind his saddle. Some of the witnesses testified that his horse was gray, and others that it was white, but all agree that it was of light color. At the turn in the road B. Merchant seems to have parted from Abel and the defendant, as, indeed, he testified that he did; for the witnesses who testified to seeing defendant at those points along the road nearest to Borcherding's house say that they saw Abel and the defendant riding together on gray horses along the road in the direction of Borcherding's house, and made no mention of Merchant. Those witnesses who saw Merchant, Abel, and the defendant together testified to the gray horse being led behind the wagon in addition to the horse which defendant rode.

Robert Davis, who lived about half a mile from Borcherding's house, and on an adjoining farm, on the Sunday evening of the murder from his house saw a man mounted on a gray horse enter the field of his neighbor, Mr. Fuchs, and ride along the side of the orchard upon a private road of Mr. Fuchs, in the direction of his house. This was about 6 o'clock, and after 7 o'clock that evening the witness heard a gunshot and scream in the neighborhood, but could not locate the sound definitely, although he said that it seemed to come from the direction of Mr. Borcherding's.

The members of the family of Mr. Fuchs testified that Ed. Abel came to their house by the road just described before the sun was down, and did not leave the place until the following morning.

Peter Schilt testified that he was at the house of Mr. Fuchs that evening, and that Ed. Abel came to the place by the private road...