State v. McNeal

• Decision Date: 18 February 1922
• Docket Number: No. 23050.,23050.
• Citation: 237 S.W. 738
• Parties: STATE v. McNEAL
• Court: Missouri Supreme Court

237 S.W. 738

STATE v. McNEAL

No. 23050.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Harry McNeal was convicted of first-degree murder, and appeals. Reversed, and remanded for new trial.

On March 3, 1921, the prosecuting attorney of Cole county, Mo., filed in the circuit court of said county an information charging defendant with the murder of Joseph Duke in the county and state aforesaid on December 21, 1920. On March 9, 1921, the jury returned the following verdict:

"We, the jury, find the defendant guilty of first-degree murder, as charged in the information, and assess his punishment at imprisonment in the penitentiary for his natural life. "Adolph Schwartz, Foreman."

Counsel for respondent have adopted the statement of facts presented in appellant's brief, which we find to be substantially correct, and which reads as follows:

Harry McNeal, the defendant, is a colored man, and at the time of the commission of the alleged offense he was serving a term as a convict in the state penitentiary at Jefferson City. Joe Duke, the man alleged to have been murdered, was a white man, and at the time of his death he was also serving a term as a convict in the state penitentiary, and at and prior to the date of his death he was a "trusty" and the keeper of what is known as McClung Park, or the State Park, in the eastern part of Jefferson City. At the time Joe Duke was killed, Harry Mc-Neal, the defendant, was also a "trusty," and was employed by the prison authorities in driving a dray or wagon on various errands connectee with the penitentiary.

The evidence discloses that on December 21, 1920, Harry Cravens, a negro convict, was directed by an officer of the penitentiary to haul a load of wood to a place on south Jefferson street in Jefferson City. Cravens not being familiar with locations in the city, the defendant was instructed to drive his (defendant's) wagon along with him and show him the place. Defendant drove a black horse hitched to a small wagon known as the "prison ice wagon." After accompanying Cravens to the place where the wood was to be unloaded, the defendant continued to drive south on Jefferson street. This was about 1 o'clock on the afternoon of December 21.

The "prison ice wagon" was seen about 1:30 p. m. of the Game day, driven by a negro in prison uniform, going into the State Park, and the evidence also shows that the same wagon left the park about an hour later. None of the witnesses who saw the wagon go into the park and later come out of the park were able to identify the defendant as the driver of the wagon, but they could only say that the driver was a colored man in prison uniform.

S. Loper, a convict in the penitentiary, who was doing some work in the yard of the Governor's mansion in the afternoon of December 21, testified that the defendant came to the mansion with his wagon about 2 o'clock, or a little before or after 2, that afternoon, for the purpose of hauling some trash away from the mansion; that he (Loper) assisted the defendant in loading the trash in a box, and the defendant put the box in his wagon and drove off. The defendant reported back at the prison with his wagon between 3:15 and 3:30 that afternoon. All of the witnesses testified that when he appeared at the mansion yard and when he reported back to the penitentiary there was nothing unusual in his appearance; he acted just as he always had; he did not appear to be excited or alarmed; his clothing was not torn nor disarranged; and there was no blood on his clothing or on his person.

Joe Duke, the convict alleged to have been murdered, was found dead by Stella Miller and Jerry Bond, two children who were pupils of the Moreau Heights public school in Jefferson City, about 4 o'clock on the afternoon of December 21. The Miller girl' telephoned from the park to the prison officials, and these officials, in company with the coroner, went to the park and viewed and examined the body. The deceased was lying in the west room of the keeper's house, on his back, arms extended, and in a pool of blood. The examination showed two fractures of the skull, made by a number of blows with a blunt instrument, two fingers of his left hand mashed off, and discoloration of the neck, as if he had been choked after the blows had been struck. Deceased's overcoat and coat were thrown open and his trousers pulled down. Nothing was found in his pockets except some keys, and some of his pockets were turned wrong side out, or partly so.

The defendant was later directed by the prison officials to bring the body of the deceased to the penitentiary, and no suspicion was raised against the defendant until the following day Capt. Gilvin, the then warden of the penitentiary, testified that he talked with the defendant the day following the discovery of Duke's dead body, and that defendant denied having been at the park on December 21. Defendant was then placed in solitary confinement in the punishment hall of the penitentiary, and about two or three days later, while in the punishment hall, he made another statement to Capt. Gilvin to the effect that he had been at the park on December 21. The day following the inquest the defendant told Capt. Ben Stewart, the then deputy warden, a more detailed account of his presence at the park, which is susbtantially the same as the statement later made by the defendant to Mr. Sam Haley, acting prosecuting attorney, and which is set out below.

On December 31, while still in punishment hall, defendant asked that the prosecuting attorney be called, and upon the arrival of Mr. Haley, the acting prosecuting attorney, the defendant made the following statement to him, as testified to by Mr. Haley:

"Word reached me that Harry McNeal wanted to make some statement to the prosecuting attorney. I went out to the penitentiary on the 31st day of December, 1920, about 5 o'clock in the afternoon, and called for Harry McNeal. I was taken to what is commonly known as the isolation or punishment hall and taken into a small room or cubby-hole and seated at a desk. Almost immediately Harry McNeal was brought in. I told him my name and told him that I understood that he was wanting to see the prosecuting attorney, that the prosecuting attorney was absent from the city, and that I was acting in his stead, and asked him if it was a fact that he wanted to make a statement. He said he did. I said, `You understand that any statement that you may make to me may be used against you.' He said, `I do.' I said, `You make this statement voluntarily and without any coercion or threat?' and he said, `Yes, sir.' I said, `Yes. With that distinct understanding then, you may make any statement that you have to make.' I first asked him a few preliminary questions as to his name, age, and for what crime he was then serving time, and then told him to state in his own way just what occurred out at the State Park the day of the alleged killing. He told me that he had driven a one-horse wagon out to the park that afternoon; that, when he arrived there, there was a woman whom he described by the name of Kate, a tall, yellow negro, who had had a tooth out, upper lefthand side of her mouth, and that there was also there a girl by the name of Mary, a white girl, who was calling on Joe Duke; that some time shortly after his arrival the defendant and Joe Duke, a negro by the name of Frank Warren, a negro by the name of Bill Warren, and a negro known to the defendant as `Big Boy' engaged in a crap game there in this little house there in the park; that after they had been engaged in the crap game a few minutes a dispute arose between the deceased, Joe Duke, and the defendant, Harry McNeal, in which McNeal claimed that Duke had short-changed the defendant out of SO cents, I believe. The defendant said that Duke was down on his hands and knees on the floor and that the defendant was standing up, and that with his right foot he drew back and kicked Joe Duke; he was not certain just where, either in the chest, or in the neck, or on the chin; that when he kicked he rolled over on the floor, but immediately gained his feet, and when Duke gained his feet he said to the defendant, `You don't have to do that to get your money; here it is? He said after they had made that settlement then that the crap game resumed, and that after shooting a little while a controversy arose, I think, between Frank Warren and Joe Duke, Frank Warren claiming that Joe Duke had shortchanged him out of some money, and that Frank Warren had some instrument, probably a gas pipe, 12 or 18 inches in length, and during the controversy he struck Duke in the back of the neck with this gas pipe and knocked him to the floor, that within a few minutes Duke arose and told Warren that he didn't have to use force to get his money back, that he would give his money back to him, and that he did give the money back. The defendant then said, `I see there is going to be trouble here; I am going to leave.' And thereupon he left the little house there and got on the wagon and drove back to the penitentiary."

Mr. Haley further testified that Capt. Stewart accompanied him to the isolation building or punishment hall to see the defendant, and that the statements made by defendant to Mr. Haley were made in the presence of Capt. Stewart; that he (Haley) did not reduce the statement to writing, but took notes of it; that he did not ask the defendant to sign the statement, and that he did not re-read to him the statements that he had made; that the reason the defendant gave for wanting to talk to the prosecuting attorney was that he was an old man and could not endure standing around on the concrete or granitoid floor of punishment hall, adding, perhaps, that that was because of his rheumatism.

At the conclusion of Mr. Haley's testimony, the defendant moved that his entire testimony be stricken out, on the ground: First, that the...