State v. Miller

• Decision Date: 30 April 1878
• Citation: 67 Mo. 604
• Parties: THE STATE v. MILLER, Appellant.
• Court: Missouri Supreme Court

67 Mo. 604

THE STATE

v.MILLER, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Lafayette Criminal Court.--The case was tried before WILLIAM WALKER, Esq., sitting as temporary or special judge.B. L. Woodson and J. N. Southern for appellant.

J. L. Smith, Attorney-General, for the State.

1. EXPARTE ALLEN, 67 Mo. 534, AFFIRMED.

HENRY, J.

At the February term, 1877, of the criminal court of Jackson county the defendant and one Richard Green were jointly indicted for the murder of Henry H. Hughes. Green was tried in the Jackson criminal court and convicted, and has expiated his crime on the gallows. Miller was tried at the March term, 1878, of the criminal court of the sixth judicial circuit, held at Lexington, in Lafayette county, to which a change of venue was awarded. Hon. H. H. Hill, judge of that court, being absent and unable to be present, an election was held under the act of March 19th, 1877, regular in all respects, if said act apply to that criminal circuit, and William Walker, Esq., was elected to preside during that term, and presided at the trial of Miller. The important question growing out of the election of the Special Judge has been considered and decided at this term in the case of Ex parte Allen, 67 Mo. 534, and it is not necessary to notice it here. The facts of the case, as testified by William Fisher for the State, are that H. H. Hughes, who was deputy marshal of Jackson county, Missouri, had a warrant for the arrest of Green and Miller for an assault upon one Henry Mensing, with intent to kill. Green, Miller, Winn, and Gilchrist were chopping wood in Jackson county for witness Fisher, and occupied a double cabin in the timber. On Saturday evening, February 10th, 1877, Hughes went to the residence of Fisher and got Fisher to accompany him to the cabin. They reached the cabin between seven and eight o'clock, and the four wood-choppers were sitting playing cards by firelight, on a box. Fisher entered first, followed by Hughes. As Fisher went into the cabin he saw Miller put his right hand on the handle of a pistol on his right side, but whether putting it in or taking it out could not say. Green got up and stepped back in the corner near the fireplace. Gilchrist passed out by Hughes, and Miller remained sitting. Hughes walked to near the end of the box; the parties were playing cards; looked at the boys and said to Miller, “Is your name Frank Miller?” Miller said it was. Hughes then remarked to him that he had a warrant for him and Richard Green. He then looked at Winn, who was standing in a corner of the cabin, and said he believed he was the man he wanted. Winn told his name, and Fisher then, pointing to Green, told Hughes that he was the man. Hughes said, “Yes, he is the man.” Hughes had his right hand in his right overcoat pocket, and took the warrant from his left pocket with his left hand, and read it. Before he finished reading it, Green, stooping as he did it, gave the end of the box a kick with his right foot. Hughes returned the paper to his pocket and said to Miller, “I understand you have a pistol; please give it to me.” Miller neither said nor did anything. Just then Green said to Hughes, “You get out of here, and be d--d quick about it,” and immediately fired a pistol at Hughes, and almost at the same moment another shot was fired, but by whom witness could not state. Green immediately fired again; Hughes fell out of the door. As Fisher started to lift Hughes up, Miller held a pistol in both hands and presented it at Fisher, saying, “Hold, hold, Will; don't you interfere.” When Hughes fell outside, Green went out over him, Fisher followed and Miller next, and again presented his pistol at Fisher and told him not to interfere. Miller then called out to Green, who had gone into the woods, “O wait; where are you?” Green answered, and he and Miller went off together. This was substantially the evidence of Fisher. Gilchrist testified that he saw no pistol on Miller's person; thought he would have seen it if the handle had been exposed to view. Winn's testimony was that Miller did not have a pistol in his hand until after Green fired twice, and that Hughes, he thought, fired one of the three shots that were fired, and that Miller did not rise to his feet until the shooting was all over; that Miller had no pistol on his person when Fisher and Hughes came into the cabin. Green and Miller came from Kansas to Jackson county together. Miller worked about two years for an uncle of Green in Iowa, and in the fall of 1876 went to Topeka, Kansas, where he first met Green. From there they came to Kansas City, just before Christmas, 1876, and were together until the murder of Hughes, after which both fled together and together were arrested.

2. ACCOMPLICE: aiding and abetting murder.

There were instructions given for the State as to what constituted aiding and abetting one in the perpetration of a crime, and the others were identical with those given in the Green case, which this court held to be correct declarations of law. See the case reported 66 Mo. 631. On the subject of abetting and aiding, the court instructed the jury, for the State, that if defendant was present aiding, abetting and assisting Green in resisting said arrest, or in perpetrating said killing, or was present ready to render such assistance as might be necessary, he was guilty of murder in the first degree. Defendant's counsel insist...