State v. Miller

• Decision Date: 08 May 1900
• Citation: 156 Mo. 76,56 S.W. 907
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

56 S.W. 907

156 Mo. 76

STATE v. MILLER.

Supreme Court of Missouri, Division No. 2.

May 8, 1900.

HOMICIDE — INDICTMENT — EVIDENCE — SUFFICIENCY — INSTRUCTIONS — ALIBI — IMPEACHING WITNESS — COMPETENCY — JURORS — DISQUALIFICATION.

1. A juror who on his voir dire answered that he would not convict on circumstantial evidence alone was properly excused.

2. That the statute enumerates certain grounds of disqualification of a juror, does not exclude other grounds of incompetency.

3. An indictment for murder, with other divers averments, charged that defendant, with others named, in and upon the deceased (naming him) "did make and assault" and with a certain described ax handle did strike, beat, etc., giving to the deceased divers mortal wounds, etc. Held, that an objection to the indictment on the ground that it did not charge an assault, based on the words "did make and assault," was unavailable, as it was perfectly obvious that the word "and" was merely a clerical error, and that the words "make and" could be stricken out, and a perfect indictment, charging an assault and the weapon with which it was committed, would still remain.

4. Where a witness has known another witness' reputation for truth for nine years, and down to the period of the trial, he is competent to speak of such reputation, which has remained the same all the time.

5. The cross-examination of accused need not be confined to a categorical review of the matters stated in his direct examination, though it must be confined, as the statute requires, to the subject of the examination in chief.

6. An instruction, as to an alibi, that defendant was not bound to prove it, but to acquit if his evidence raised a reasonable doubt as to his complicity, gave defendant the full benefit of the evidence relating thereto.

7. Evidence tending to show defendant's financial condition just prior to the murder is competent to support the theory of the prosecution, that it was committed to prevent defendant's exposure for a larceny which the state claimed deceased had charged against him.

8. On the trial, for murder, of defendant and several others, the jury were instructed that if they believed defendant alone, or that defendant and another defendant named, or either of them, and the other present aiding, abetting, or consenting thereto, did, on or about the day in question, feloniously, willfully, etc., kill and murder deceased in the manner and form charged, the jury should convict defendant. Held, that the instruction made no effort to bind defendant as a conspirator, and did not require the jury in any event to hold him for any conduct save his own.

9. Instructions wholly and properly covered by instructions given were properly refused.

10. The corpus delicti was unquestionably proved. Deceased was not known to have any enemies, except defendant, who, with his wife, until a few days before the murder, lived with deceased, who was old and feeble, and was alone in his farm house on the night he was murdered. Shortly before, deceased claimed that $75 had been taken from a drawer where he kept it, and he indirectly accused defendant of stealing it, and threatened to prosecute him as soon as the weather moderated so that he could go to the county seat. Defendant, after the estrangement which arose, moved about three miles away, leaving deceased alone, without notifying his daughter, who lived some distance away, so that she could arrange to take care of him. Defendant on several occasions, and on the afternoon before the murder, referred to the charge of theft made against him, and threatened to kill deceased that night. The evidence showed that the murderer was familiar with the premises. An ax helve, used to commit the crime, was found in an old well in the yard by a neighbor after defendant had protested, according to the state's evidence (but which was denied by him). that the well had damps in it, and that it would be dangerous to examine it. It appeared, also, that defendant was unusually nervous before the inquest, and protested to several that he was glad that he could prove where he was that night, though he was not then accused. He had before been convicted of an assault with intent to murder, and served a sentence therefor, and his reputation for truth and veracity was very bad. He testified that he slept at home all night, and his wife fully corroborated him, but otherwise his actions after midnight were not accounted for. Held sufficient to sustain a conviction.

Appeal from circuit court, Holt county. Gallatin Craig, Judge.

David Miller was convicted of murder, and appeals. Affirmed.

G. W. Murphy, H. T. Alkire, and R. B. Bridgmon, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant was convicted at the November term, 1899, of the circuit court of Holt county, of the murder (in the first degree) of Samuel Crow, and sentenced to be hung. From that sentence he appeals. The evidence, which is circumstantial, disclosed the following facts: On the morning of March 26, 1899, Samuel Crow, an old man, was found dead in his bed at his home, about five miles from the town of Oregon, in Holt county, Mo. It was perfectly apparent that he had been beaten to death during the night with a club or other blunt instrument. The defendant and his wife had been living in the same house with the old man until five days before the murder, at which time an estrangement seems to have arisen between them, and they removed to a place about one mile north of the town of Oregon, and about three miles from the home of Crow, leaving the old man living alone, as he very seldom left his home, and was seldom visited there, and had but little to do with any of his neighbors. Before moving away, the defendant was asked by a witness to notify Mr. Crow's daughter, who lived in the town of Maitland, so that she could arrange for some one to care for the deceased after the defendant moved away. This the defendant refused to do, saying he had had enough of the old s___ of a b___. Only a short time before the murder, $75 had been stolen from the old man, as he claimed; the money having been taken from a drawer where he had kept it; the drawer being unlocked by means of a horseshoe nail, a fragment of which was broken off in the lock. The old man made frequent remarks concerning this theft, to the effect that "it was no stranger who took his money." These remarks were sometimes made in defendant's presence, and to him, and at other times he was told about them. The defendant having lived in the house with the old man, he construed those remarks to be directed at him, as shown by his conversation with others on the subject, and it seems that some others who heard what Crow said understood them in the same way; and in fact defendant was informed that Crow intended to have him indicted as soon as the weather should moderate so that he could make the trip to the county seat. During this time, and on Tuesday, four days before the murder, defendant, according to the testimony of Mrs. Grooms, said to his brother-in-law, Dan Ferguson, and in Mrs. Grooms' hearing, "Dan, if this man says I stole that money, I intend to kill the old son of a bitch." According to the testimony of William B. Ferguson, the defendant at about 4 o'clock in the afternoon preceding the night of the murder called the witness behind a building in the town of Oregon, and said to him: "You heard the conversation, didn't you, about that money, — what the old man said about the money?" And the witness said that he did, and the defendant continued: "I am going to put an end to this money business before he goes to Maitland, — this very night." And the witness said: "Good God, Dave! What are you going to do?" And the defendant said, `I am going to kill him." The witness testified that defendant said further, in the same conversation: "The boys are going to stay all night with me, — Dan and Tom. You take the horses on out home, and I am going to slip out there to-night and do it." That night Dan and Tom Ferguson spent the night with the defendant, and the old man was murdered in his bed. The manner in which the house was entered, namely, by forcing back an old-fashioned wooden button on the inside of the door by means of some sharp instrument, indicates that it was done by some one familiar with the place. On the day following the murder there is evidence that the defendant displayed nervousness and agitation. A number of the neighbors and others were gathered at the scene of the tragedy, and a search was begun for the club with which the fatal assault must have been made. It was suggested that some one look in the well, whereupon the defendant said that it would be dangerous to do so, and that there were damps in the well. His suggestion was ignored, and in the well they found an old ax handle, bearing the marks of blood and flesh. The physician who examined the wounds of the deceased testified on the trial that they could have been inflicted with that ax handle. Defendant, after the murder, made the remark that he was glad he could prove where he was that night. This remark he made, not to one, but to many different parties, — repeated it frequently. On behalf of the defendant there was some slight evidence pointing towards William Ferguson as the perpetrator of the crime. On that night he was intoxicated, and in the night he went out of doors, and was gone about 15 minutes; and it was later discovered that the shirt he wore bore one red stain, and another stain admitted to be blood. His wife testified that the blood stain looked like a large bug had been mashed on his shirt, and the other stain, which was on the wristband, resembled brick dust. Mrs. Ferguson further testified that it was not unusual for her husband to leave the house for a few minutes in the night when intoxicated, and that he was not absent from the house long enough to have...