State v. Millard

• Decision Date: 08 June 1922
• Docket Number: No. 23049.,23049.
• Citation: 242 S.W. 923
• Parties: STATE v. MILLARD.
• Court: Missouri Supreme Court

242 S.W. 923

STATE v. MILLARD.

No. 23049.

Supreme Court of Missouri, Division No. 2.

June 8, 1922.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Willis Millard was convicted of murder, and appeals. Affirmed.

A. E. L. Gardner, of Clayton, and A. L. Shortridge, of Sedalia, for appellant. Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

WALKER, J.

Defendant and George V. Parr were jointly indicted by the grand jury of St. Louis county for murder in the first degree in having killed one Eugene S. Conrey. Defendant was granted a severance, and upon a trial was convicted of murder as charged and his punishment assessed at imprisonment in the penitentiary for life. From this judgment he appeals.

The evidence was largely circumstantial. That for the state shows that the defendant, Parr, and one David Burke were in an automobile in the town of Clayton in the early morning, about 1 o'clock, of August 30, 1920. Conrey and Corner, two deputy sheriffs, attempted to drive by the car in which the defendant and others were riding, when some one was ordered to throw up their hands. This was followed by a declaration in a loud tone of voice that: "You have got the wrong men this time." A volley of shots followed, and the same voice said: "You are under arrest" Then there were three shots, and a commanding voice heard saying: "Get out of that car, every one of you." These facts are related by residents of the immediate neighborhood, who from their homes heard the shots and voices before they saw the automobiles and their occupants. The facts authorize the following conclusions: That, when the automobiles came along side of each other, defendant drew a pistol and fired a shot. The officers in the other car then commenced shooting, and defendant fell, part of his body lying in the car and the remainder on the running board. When this occurred, Burke and Parr, at the command of the deputies, got out of the automobile and went to Conrey. He searched Burke and told Corner, the other deputy, that he would have to take them up the hill. Conrey was unsteady on his feet as if about to fall when Corner and the two men left him, and his dead body was found soon thereafter at the head of the automobile where he had been standing. When Corner started away with the men, he marched them ahead of him in a westerly direction. A voice was heard saying: "Come on; there are two dead now." Shortly thereafter two shots were heard, coming, apparently, from the direction of the automobiles. As Corner, with the two men, was going up the hill, some of the residents near at hand who had been aroused by the shots saw a man skulking along some distance behind them, dodging from tree to tree. Two witnesses identified the defendant as this man. The evidence is not definite as to whether the three last shots were heard during the time this man was seen following the others or whether it was immediately before. In any event, when Corner and his two prisoners had proceeded a short distance further, he ordered them into a lawn, and as he approached the residence he fell dead, as was afterwards disclosed, from a gunshot wound in the back, evidently received a very short time prior thereto. In the meantime one of the citizens in the immediate neighborhood had gone down to where the automobiles were standing. This man saw Conrey's body lying at the head of the automobile, and as he arose from examining the body he was confronted by the defendant, who, with a drawn pistol, inquired what all this meant, but as he did so he backed, with his pistol drawn on the citizen, mounted the car in which he and his companions had been riding, and rode rapidly away. Other officers, attracted by the shots to the scene, followed him rapidly in another automobile. When within hailing distance, they commanded him to halt, but instead of doing so he jumped out of the car while it was in motion and disappeared in the Forest Park shrubbery. He was found the next morning on a lawn in University City, suffering from a gunshot wound. In the automobile he had abandoned a pistol was found.

Burke, one of his former companions, who was not under indictment, testified for the state. He stated that the officers approached in an automobile, and as they did so one of them was standing on the running board. When their car came along side the car in which he, the defendant, and Parr were riding, the officer on the running board ordered them to throw up their hands, and the defendant, with the remark that "it is a stick up," fired a shot.

The defendant, testifying in his own behalf, gave practically the same version of the tragedy, except he denied having a pistol or that he fired a shot.

Other evidence adduced on the part of the defendant, while not varying in its material portions from that for the state, is fuller and presents the facts more in detail. It is substantially as follows:

In the early hours of August 30, 1020, defendant, Parr, and Burke had driven in defendant's automobile from the city of St. Louis to Clayton, and were on their way back to the city. When near the intersection of Jackson avenue and Forsythe boulevard in Clayton, Burke, who was driving the car, stopped same and got out to adjust a part of the machinery, he having been taken by defendant in the car for that purpose. The adjustment made, the three parties were again seated in the car, preparatory to starting, when a Ford car driven by one man with another standing on the running board suddenly drove from some point on Jackson avenue to the left side of defendant's car, which was an Oldsmobile, both cars at the time being headed east toward the city. Just as the Ford car approached the Oldsmobile the man on the running board, with a revolver in his hand, shouted, "Throw up your hands," and about that time shooting commenced, and defendant, who was sitting on the right-hand side of the Oldsmobile, fired a shot, and in turn was shot and fell partly out of his car, his head and shoulders resting on the running board. After the First. shooting, the two men in the Ford car lined Burke and Parr up in front of the cars, the Ford car being to the east and somewhat in advance of the Oldsmobile, on which defendant was lying. While Burke and Parr were thus standing in front of the cars, officer Conrey, who was near them, was by a shot from the direction of the Oldsmobile, and he fell and in a short time expired. Defendant denied firing the shot that killed him.

After Conrey had fallen the other officer, Corner, ordered Burke and Parr to walk in front of him back to the business district of Clayton, remarking that "There are two dead now," referring to defendant and Conrey. After Corner and Burke and Parr had proceeded a short distance, two or three shorts were fired from the rear, one of which struck Corner in the back. Upon being shot, Corner walked to an adjacent lawn and fell dead. After he fell, Burke and Parr fled and were arrested in the city of St. Louis the next day. Burke was held in jail for about a month, but after the indictment was found against the defendant and Parr, he was discharged. He is the only witness who gave any direct testimony as to the killing of Conrey. The defendant was also "indicted for the murder of Officer Corner, which occurred after the killing of Conrey. Defendant was placed on trial at the February term of the St. Louis county circuit court, and was by a jury found not guilty of the killing of Corner.

Witnesses testified that they saw defendant following Corner, Burke, and Parr up the street, the night not being dark and persons living along the street having been aroused by the shots. Henry Bender, witness for the state, who lived a short distance from where the automobiles were standing, came upon the scene soon after Corner, Burke, and Parr had left, and was examining the body of Conrey when he heard the shots back up the street. While be was stooping over Conrey's body, defendant approached him, turned Conrey's body over, took a revolver therefrom, and, with another revolver in his hand, got into his automobile and drove rapidly toward the city of St Louis. About this time a car containing other officers pursued defendant into Forest Park, where he abandoned his car, ran thrown the shrubbery, and disappeared. He was found some distance from this point before daylight the next morning, suffering from his wound and unable to travel.

At the trial of the case in bar the judge, over the objection of the defendant, admitted testimony relating to the killing of Corner, and defendant thereafter introduced the record of his trial and acquittal of that crime.

Defendant contends that the trial court committed the following errors:

By admitting evidence tending to prove a crime for which defendant had been tried and acquitted.

Second. By giving instruction No. 11, which authorized the jury to consider evidence of an offense alleged to have been committed by defendant after he had been found wounded not guilty thereof.

Third. By giving instruction No. 2, which authorized the jury to find the defendant guilty of murder in the first degree.

Fourth. By giving instruction No. 3, authorizing the jury to find the defendant guilty of murder in the second degree.

Fifth. By refusing to instruct the jury as to defendant's good character.

Sixth. By improper remarks of the, prosecuting attorney in his closing argument to the jury.

1. Evidence of Other Crimes.—The admission of testimony concerning the commission of another crime by a defendant than that on which he was being tried has been discussed and determined under different states of fact and from many points of view. The reports of our own court are not lacking in cases illustrative of this question.

Without discussing the other exceptions to the rule which declare evidence of other offenses admissible, it will suffice to say, under the facts at bar, that we have reached the...