State v. Miller

• Decision Date: 02 June 1890
• Citation: 100 Mo. 606,13 S.W. 832
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

13 S.W. 832

100 Mo. 606

STATE v. MILLER.

Supreme Court of Missouri.

June 2, 1890.

MURDER — STATE'S EVIDENCE — CORROBORATION — EVIDENCE.

1. Two men living, with their wives, in the same house, were accused of a murder, evidently committed in the course of a burglary. After their arrest, during an altercation in which each accused the other of the shooting, defendant betrayed a guilty knowledge of the location of objects in deceased's house at the time of the murder. By his direction, too, a partially burned pistol was found in his co-defendant's stove, into which a ball extracted from deceased's body was found to fit. His co-defendant, having turned state's evidence, testified that they went together to deceased's house, that defendant went inside while witness remained at the gate, and that while standing there he heard a shot within. His wife testified that she heard them talking together after they came back, when defendant said it was the first time he had taken his shoes off, and that he stepped on a carpet newly put down, which made a noise, and wakened deceased. Defendant had expressed ill will towards deceased, and said he ought to be shot. Held sufficient evidence to justify a conviction of murder in the first degree.

2. On a trial for murder, where defendant was charged as principal in some of the counts, it was error to dismiss, over his objection, a count which charged a co-defendant as principal, and defendant as accessory after the fact, when there was evidence tending to prove such charge.

3. It was error to charge that the testimony of a person aiding and abetting a crime "is admissible; yet such evidence, when not corroborated by the testimony of others not implicated in the crime, as to matters material to the issues, ought to be received with great caution," without explaining the meaning of "matters material to the issues," and stating that the corroboration must go to the extent of identifying the person of the prisoner against whom the accomplice speaks.

4. If defendant was present, aiding and abetting another, who deliberately and with malice aforethought killed the deceased, he was guilty of murder in the first degree.

5. Where two persons were accused of murder in the first degree, it was error to admit the testimony of one against the other upon an agreement "to testify against" him, in consideration of the prosecuting attorney's accepting a plea by the witness of murder in the second degree.

6. It was proper to admit the testimony of the co-defendant's wife as to a conversation she overheard between defendant and her husband tending to show that defendant participated in the crime, when she gave all of the conversation, or all that she heard.

7. It was not error to ask a witness whether he had not been in the penitentiary two or three times. When the purpose is only to discredit the witness, it is not necessary to produce the record to prove a previous conviction.

8. Where the jury returned into court and stated that they were unable to agree because of a certain difficulty, it was proper to give additional instructions thereon; and it will be presumed, in the absence of any showing to the contrary, that defendant was then present.

9. It was proper to charge that if defendant shot and killed the deceased in the perpetration of, or the attempt to perpetrate, a burglary, he was guilty of murder in the first degree.

RAY, J., dissenting.

Appeal from circuit court, Audrain county; E. M. HUGHES, Judge.

The defendant was indicted at the January term, 1889, of the circuit court of Audrain county for murder in the first degree, for shooting and killing one Samuel Apgar, in said county, on the 17th day of April, 1888. The indictment contained four counts. The first count charged murder in the first degree, by shooting and killing with a pistol, in the usual, formal, and general manner; the second and third counts charged murder in the first degree, committed in the attempt to perpetrate a burglary; and the fourth count charged George Mortimer with the commission of the offense in perpetrating a burglary, and defendant as being an accessory after the fact. He waived formal arraignment, and pleaded not guilty, and at the June term, 1889, of said court, was tried and found guilty, the jury returning a verdict of guilty of murder in the first degree. Thereupon he filed his motion for a new trial, which was continued until July, when it was overruled, and defendant sentenced, from which he appealed to this court. At the close of the evidence on the part of the state, the state entered a nolle as to the fourth count of the indictment, and this was done over the objection of the defendant. At the time defendant was indicted, George Mortimer was also separately indicted for the same offense. Apgar was an old man, about 65 years old, and lived with his wife in a house that fronts south, and on the same street, about six blocks west of the house which had been for a few weeks occupied by both Miller and Mortimer with their wives. Miller and Mortimer, before moving to this place, occupied a house together in a different part of the town, and Miller conducted a sort of barber-shop in both of these houses. Apgar's house consisted of four rooms and a summer kitchen, which was connected with the north-west room of the main house by a platform. This north-west room had a door in the west, through which one passed onto the platform, which was three or four feet wide, and on into the east door of the summer kitchen. A door was between this north-west room and the south-west room of the house; and on the night of the murder Apgar had gone to bed with his wife in the south-west room. A day or two before the murder the summer kitchen had been brought into use, and at night, when Mrs. Apgar retired, the summer kitchen door was fastened, and the drawers in the safe were in their places. Just immediately after the murder the doors of the north-west room and the summer kitchen were open, and the drawers of the safe in the kitchen pulled out, and things in it disarranged, besides other things in the kitchen were removed and disarranged. About 2 o'clock in the night Mrs. Apgar heard a pistol-shot in the north room, and a door slam. Immediately her husband returned into the room, and said, "I am shot." Presumably he had heard a noise, and gone out to ascertain what it was, and in doing so met with the burglar, who shot him. Apgar was shot with a number 22 pistol, and a pistol of that size was found partly burned in Miller's stove, and cartridges of the same kind and size as those which would fit the pistol found in Mortimer's possession, on his person; and the pistol was proven and admitted to be his, and the ball taken from Apgar's body exactly fitted the empty cartridges found in Mortimer's pistol. Three or four cartridges of the same kind were found in a box on Miller's work-bench in the north-west room of the house in which he and his wife stayed. Though that room was the common pass-way to the kitchen, Miller and his wife and child had a bed in the north-west room, and Mortimer, wife, and child the south-east corner room, and both families lived in common; the respective heads of each alternating in furnishing provisions. The trial resulted in Miller being found guilty of murder in the first degree; hence his appeal.

Miller and Mortimer lived together in a house with four rooms in it. It fronted east, and had one east front door. Passing in that door, you come into the north-east room; from that room you pass into a room directly south, with no outside door; also from that north-east room you pass into a room just west, and from that room into a kitchen south, being the south-west room of the house, which room had a door leading west into the outside. These rooms were all used in common by both Mortimer and Miller. There were no outside doors to this house but the one in the east, and the one leading from the kitchen in the west. Apgar was an ex-Federal soldier, and drew a pension, and this fact was known to Miller, who had spoken of it, and had expressed ill will against Apgar. The wife of Mortimer was introduced as a witness on the part of the state, as was also Mortimer himself. The testimony introduced was substantially as follows:

Mrs. Apgar, the wife of the deceased, testified: "I live now in St. Louis. Before I went to St. Louis I lived in West Mexico. I have lived there seven or eight years. My husband's name was Samuel Apgar. The house we lived in had three rooms sixteen feet square, and one about twelve feet. It was on the north side, and stood back from the street about twelve feet, — may be a little further. My husband's death occurred on the 17th day of April, 1888, in Audrain county, Mo. The first to attract my attention was a pistol shot. I was in the west sitting-room. There was a dining-room north of that. It was a very small room. There was a passage from the room I was in to the dining-room. My husband and I were sleeping that night in the west room, south of this dining-room. The bed was in the west corner of the room, the head extending west. It stood against the wall next to the dining-room. There was a small kitchen located about four feet from the dining-room. There was a door which led out of the dining-room west. There was nothing but a platform between the dining-room and kitchen. It had no roof over it. It was just four feet from the west door of the dining-room to the summer kitchen door. The door in the summer kitchen faced east. There was a safe in the summer kitchen. Mr. Apgar went to bed early that night. I closed all the doors that night. The door to the summer kitchen was closed with a bolt. The front gate was closed. The report of a pistol woke me up that night. I was in bed. The report sounded to me as if it was north of the dining-room door. I heard the door slam against the safe, and the dishes rattle. My husband came in soon thereafter, and told me he was...