State v. Midkiff

• Decision Date: 25 June 1926
• Docket Number: No. 26963.,26963.
• Citation: 286 S.W. 20
• Parties: STATE v. MIDKIFF.
• Court: Missouri Supreme Court

286 S.W. 20

STATE v. MIDKIFF.

No. 26963.

Supreme Court of Missouri, Division No. 2.

June 25, 1926.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Delbert Midkiff was convicted of murder in the first degree, and he appeals. Affirmed.

Alexander & Coffer, of Cape Girardeau, for appellant.

North T. Gentry, Atty. Gen., and James Donald Purteet, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The information, filed April 24, 1924, charges the defendant and John Biddy with murder in the first degree, in that on or about August 5, 1922, they assaulted and beat John Green upon the head with a large, heavy, and blunt instrument, to wit, a hammer, inflicting a mortal wound of which said Green instantly died. A severance was granted, and the defendant was found guilty and sentenced to life imprisonment in the penitentiary in accordance with the verdict, and he appealed. Frank Midkiff, brother of appellant, was found guilty, on April 3, 1924, of having murdered the deceased, John Green, on an identical charge, and his conviction was affirmed on appeal. See State v. Midkiff (Mo. Sup.) 278 S. W. 681. The facts as outlined in Judge White's opinion in that case, are, in the main, the same as in this case. Clues discovered at the trial of Frank Midkiff led to the prosecution in this case.

John Green, a negro, lived alone on a small farm five miles northeast of Jackson in Cape Girardeau county. He was in Jackson on the afternoon and evening of August 5, 1922, and bought some groceries to take to his home. He was seen in Jackson by the defendant and his accomplices, and they knew he carried money on his person. Frank and Delbert Midkiff, John Biddy, Wilson White, a negro, and Walter Houck discussed the fact that Green carried money on his person, and they agreed to drive out to Green's house, lie in wait for, and kill and rob him when he reached his house. They concluded not to shoot him, but to kill him with a hammer and then rob the body. The five persons named went to Green's house in a car driven by John Biddy. Houck, White, and Delbert Midkiff hid in the rear of the house. Biddy and Frank Midkiff stood at one corner of the house, the latter having taken with him a hammer and a jar of coal oil. After lying in wait about half an hour, Green arrived about 10:30 p. m. He drove his horse and buggy to his barn, and presently started to his house, carrying his basket of groceries. As he stepped on the porch Frank Midkiff struck him a violent blow from behind on his head with the hammer, which "felled him to the earth and killed him outright." Biddy took two pocketbooks, which Houck and White described, containing $220, from Green's body. Frank Midkiff, with the coal oil and some sticks, set fire to the house. They then ran to the automobile and on the road back to Jackson divided the maney, Houck getting $20 and each of the others $50." This is in substance the testimony of Walter Houck and Wilson White, two of the accomplices.

August Sanders testified that late in the afternoon of August 5, 1922, Frank Midkiff, in the presence of his brother Delbert, asked witness what he was going to do that night. Sanders said he was going to the show. Frank said, "You don't have to go to the show; stay with us, and if you have the nerve like we have we will get some easy money." Sanders said, "Are you going to rob a bank?" Frank said, "No; we're on to the job how we are going to get the money." This talk was about 7 p. m. John Green's horse and buggy were then hitched at Heinsberg's store in Jackson, in plain view. Witness further testified that he had a talk with defendant about the last of July, 1922, in Jackson, in which defendant said, "I would like to have some money"; that he said he was figuring on getting John Green's money; that Green always carried money; that he had seen his pocketbook several different times, but he had never got it yet.

Myron Akers testified:

"I saw Frank and Delbert Midkiff talking with John Biddy late in the afternoon of August 5, 1922. Later in the evening, after dark, Frank Midkiff asked me to go along with him and get some easy money—said it was easy and we couldn't get caught, and said he was going to get it if he had to get it himself. Delbert was standing there right close to Frank, something like ten feet away; don't know whether he heard it or not; it looked like he heard it. A little later I saw them talking with Walter Houck. I didn't hear what was said. They left there. I don't know where they went."

Lawrence Shaner, who lived within 80 rods of John Green's house, was awakened by the ringing of his telephone about 11:30 p. m., on August 5, 1922, and was asked if Green's house was on fire. Seeing that it was, he hastened over and found some of the neighbors there. The building was enveloped in flames and the roof falling in. At first they were unable to find Green. It was a five-room house, part log and part plank construction, and there was a porch with a roof. They found him on this porch. There was a strong wind and the flames were being driven over this porch. Green was lying on his back with his feet just off the edge of the porch, resting on the ground, and the body was badly burned. The left back part of his skull was crushed in; there were blood stains on some rocks within six or eight inches of his feet They found his watch and watch fob, his finger ring, the burned remains of a notebook, and the soles and heels of his shoes. Witness identified the watch as John Green's. It had stopped at 11:46. He also identified Green's ring and a few coins found in the notebook. Witness described two pocketbooks which Green had carried for years before his death, and his description corresponded with that given by Houck and White of the two pocketbooks taken off Green's body which contained the $220 divided between the five conspirators.

Dr. Shulz, coroner, made an examination of the body of a colored man on August 6, 1922; it was lying behind the burned building on the farm of John Green; the body was badly burned; the skull had been fractured near the top part in the rear; in his opinion the blow had been given by a blunt instrument and was sufficient to cause death.

The case for the defense is thus summarized by the Attorney General:

"Appellant's defense was in the nature of an alibi. The testimony in support of same tended to show substantially the following facts:

"That appellant did not know the deceased during his lifetime; that he was not with Frank Midkiff, John Biddy, Wilson White, or Walter Houck in the afternoon or evening of August 5, 1922; that he had nothing to do with, nor knew anything about, the killing of deceased: that he was not in the city of Jackson on that night; that he was in the little town of Iron Mountain, having gone there with his brother-in-law, Louis Conrad; that he arrived the next day (August 2) and secured a job August 3, 1922, and worked two or three days on that job, and then went to work for Mr. Jim Corbett, where he worked until August 16, 1922. The appellant was substantially corroborated in his alibi by his wife, mother, sister, John Biddy, M. McDonald, and a Mr. George Brown. Defense also offered the testimony of several witnesses that the general reputations of the state's witnesses, Walter Houck, Wilson White, and August Sanders, for truth and veracity, were bad. The state offered the testimony of ten witnesses in rebuttal, their evidence tending to refute the material elements of appellant's alibi."

The defendant testified:

"I testified at the trial of my brother Frank that I was in Jackson that night (the night John Green was killed). Since I studied the matter I know I was at Iron Mountain working. I asked my mother if she remembered where I was that night, and she said, `I don't know, but I think you was in Jackson.' I says, `No, mother; if they get you on the stand and ask you where I was at, you tell them I wasn't there, because you would be telling them false if you tell them I was in Jackson.'"

The errors assigned in the motion for new trial are: (1) There is no substantial evidence to support the verdict, and the demurrer to the evidence should have been sustained; (2) the verdict is against the law as declared in the instructions; (3) the court erred in refusing the defendant's instructions 1, 2, and 3; (4) the court erred in giving instructions 1, 2, 3, 4, 5, 6, 7, and 8 for the state; (5) the court erred in admitting the statements alleged to have been made by Frank Midkiff to Walter Houck, Myron Eggers, and Red Sanders to the effect that Frank Midkiff invited said witnesses to go out and get some easy money, each of said statements being made out of the presence and hearing of the defendant; (6) because ____ and ____, the jurors, had expressed an opinion of the guilt of the defendant, and before they were sworn to try the case; and (7) because outside of the evidence of the witnesses Houck and White, accomplices, there is no evidence to connect the defendant with the commission of the murder. The motion for new trial, filed June 3, 1924, was continued until January 23, 1925, "in order that the defendant may supply affidavits in support thereof."

1. There was ample proof of the corpus delicti; that is, of the death of John Green and of the defendant's criminal agency in causing it. The evidence for the prosecution, if believed by the jury, leaves no room for reasonable doubt that the defendant and, his brother Frank Midkiff, together with John Biddy, Walter Houck, and Wilson White, conspired to kill the deceased, John Green, for the purpose of robbery; that they were lying in wait for him when he came to his house; that pursuant to this conspiracy Frank Midkiff crushed Green's skull by a blow with a hammer; that Biddy then took the two pocketbooks from his person, which he was known to carry; that Frank Midkiff then set fire to the house; and that the five conspirators got into the car and divided the...