State v. Miller

• Decision Date: 30 March 1915
• Parties: THE STATE v. ROBERT MILLER, Appellant
• Court: Missouri Supreme Court

175 S.W. 191

264 Mo. 441

THE STATE v. ROBERT MILLER, Appellant

Supreme Court of Missouri, Second Division

March 30, 1915

Appeal from Reynolds Circuit Court. -- Hon. E. M. Dearing, Judge.

Affirmed.

John H Keith and O. L. Munger for appellant.

(1) Testimony, taken at a coroner's inquest of one who is afterwards prosecuted for the homicide is inadmissible against him, where he acted without counsel and was at the time suspected of having committed the crime, and the examination was made to obtain criminating circumstances against him. State v. Young, 119 Mo. 495; People v. Mondon, 103 N.Y. 211; People v. McMahon, 15 N.Y. 384; State v. Thomas, 250 Mo. 212; State v Thornton, 245 Mo. 436; Art. 2, sec. 23, Constitution; Josephine v. State, 39 Miss. 613; Counselman v Hitchcock, 142 U.S. 547. (2) The burden is upon the State to prove defendant's presence at the time and place of the crime beyond a reasonable doubt. And if the evidence of defendant's alibi created in the minds of the jury a doubt as to his presence at the time of the commission of the crime, he should have been acquitted. State v. Shelton, 223 Mo. 118; State v. Glasscock, 232 Mo. 278; State v. Barton, 214 Mo. 216; State v. Lewis, 69 Mo. 92; State v. Taylor, 118 Mo. 153. (3) One who has talked to witnesses who detail what the evidence was at an inquest is not competent as a juror. State v. Hultz, 106 Mo. 41; State v. Bryant, 93 Mo. 273; State v. Culler, 82 Mo. 625.

John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) Voluntary statements of the defendant, made when a witness at the coroner's inquest, are properly admitted in evidence. State v. Thomas, 250 Mo. 212; State v. Thornton, 245 Mo. 436; State v. Marion, 235 Mo. 359; State v. Young, 119 Mo. 495; State v. Wisdom, 119 Mo. 551; State v. Mullins, 101 Mo. 518; People v. Kelley, 47 Cal. 125. (2) There was no reasonable doubt of the defendant's presence at the time of the commission of the crime. The jury were properly instructed as to the defense of alibi. State v. Glasscock, 232 Mo. 294; State v. Shelton, 223 Mo. 137; State v. Barton, 214 Mo. 316; State v. Cushenberry, 156 Mo. 168; State v. Bryant, 134 Mo. 252. (3) Where a juror on his voir dire examination declares that his opinion is not such as to bias or prejudice his mind, and that his opinion will readily yield to the evidence in the case, he is a competent juror. State v. Schumeback, 243 Mo. 538; State v. Church, 199 Mo. 629; State v. Darling, 199 Mo. 188; State v. Sykes, 191 Mo. 75; State v. Brennan, 164 Mo. 507; State v. Bronstine, 147 Mo. 520; State v. McGinnis, 158 Mo. 105. The ground upon which a juror is challenged must be stated. Simply objecting to a juror as being disqualified is not sufficient. State v. Bobbitt, 215 Mo. 44; State v. Taylor, 134 Mo. 142; State v. Reed, 137 Mo. 132; State v. McGinnis, 158 Mo. 118; State v. Evans, 161 Mo. 108; State v. Myers, 198 Mo. 247; State v. Dipley, 242 Mo. 474. (3) Sufficiency of the evidence. State v. Concelia, 250 Mo. 411; State v. Bass, 251 Mo. 107.

OPINION

WALKER, J.

An information filed by the prosecuting attorney of Reynolds county charged the appellant, Robert Miller, with murder in the first degree in having shot and killed Richard Mallow. Upon a trial appellant was convicted as charged and his punishment assessed at imprisonment for life in the penitentiary. From that judgment he appeals to this court.

Richard Mallow, the deceased, was a single man between fifty and fifty-five years of age. He had no permanent home, but lived at times with his brother-in-law, John Gallahar, near the village of Black in Reynolds county, and at other times with other relatives or friends in the neighborhood. When the weather permitted he camped in the woods and hunted for several days at a time. He lived, as the witnesses state in homely but expressive phrase, "very poorly," was exceedingly parsimonious, although his pecuniary condition would have enabled him to live differently, as it had been generally known in the neighborhood for years that he carried on his person a roll of paper money consisting of bills of large denominations aggregating not less than $ 800. On August 27, 1913, Mallow came to the blacksmith shop of his brother-in-law, John Gallahar, at about two o'clock in the afternoon, with a double-barreled shotgun which he carried when hunting, and asked for and was given some loaded shells or cartridges, and left, as he said, to go squirrel hunting. This was the last time he was seen alive. About an hour after he left, a daughter of Gallahar's hearing two shots fired in the direction in which Mallow had gone, remarked, "Uncle has killed a squirrel." Two weeks elapsed, but Mallow did not return. His absence and no word having been received from him, did not occasion anxiety, because from his habits it was reasonably concluded that he was either camping out or staying elsewhere in the neighborhood. On the 10th day of September, 1913, Hendrix, a son of John Gallahar, while hunting cattle discovered the dead body of a man in the woods about half a mile from his father's home. He did not go nearer the body than twenty-five or thirty yards, but ran home and informed his father of his discovery. The father and son went immediately to the spot and discovered the body to be that of Richard Mallow. The neighbors were notified, and several men went at once and also identified Mallow's body. His gun, not loaded, was standing five or six feet from the body, leaning against a tree. Physicians testified that Mallow had been dead from ten days to two weeks. Decomposition was somewhat advanced, but the body was in a sufficient state of preservation to enable it to be determined that there was a gunshot wound on the left side of the neck back of the lower lobe of the ear. This wound ranged forward to the right and upwards, and the shot or shots in their exit had torn and lacerated the right side of the face. The doctors stated that the wound was sufficient to produce immediate death.

The appellant, Robert Miller, was a young married man, having a wife and two children, and living in the town of Lesterville in Reynolds county, not many miles distant from the village of Black. Miller had no money or property and was dependent upon his daily labor for the support of himself and his family. The total amount of property returned by him for taxation was $ 30. In the early part of August, 1913, he had been employed by the Hub Mill Company in the neighborhood to drive a team. For several weeks before August 27, 1913, he was at work for a man named Brown, stacking lumber and railroad ties. When employed it was his custom to draw his money in advance. About eight or nine o'clock on the morning of August 27, 1913, Miller came to a blacksmith shop in Lesterville, borrowed a double-barreled shotgun and some cartridges, and stated that he was "going up the creek hunting." He was seen a short time thereafter about a mile northwest of Lesterville on the road leading to the village of Black going through the field of one of the witnesses with a gun on his shoulder. He asked a boy named Senceboy to accompany him. The latter declined, and he went on his way in the direction of the village of Black. The next time he was seen was on the 28th of August, 1913, in a barbershop at Lesterville. It was about nine o'clock in the morning. He said that he was not well and that he had had a chill and had gone up Camp Meeting Hollow the day before and had been there the most of the day. Nothing was said about where he was during the night of the 27th. Camp Meeting Hollow was about two and one-half miles from John Gallahar's home. A witness named Rayfield, who lived next door to Miller in Lesterville, saw him at his home on the morning of the 27th, but did not see him during the remainder of the day. Prior thereto Miller was never known to have any ready money. At a picnic held near Lesterville on the 29th day of August, 1913, he contracted to buy a pair of mules from a witness named Carty, and paid him $ 10 to bind the bargain. The next morning, Saturday August 30th, Carty brought the mules and delivered them to Miller, who paid $ 510 in cash for them. The money paid by Miller to Carty consisted of one $ 100 bill, the balance being in twenties and tens. Carty deposited this money in the Reynolds County Bank at Centerville, and on the trial the $ 100 bill was exhibited to him and he testified that it was one of the bills that had been given him by Miller. A short time after Mallow's body was found, a witness named Alcorn went with Miller to Ironton and from there to Piedmont. In a conversation with Miller, Alcorn said to him: "Where did you get the money you paid for those mules?" To which Miller replied, "Don't you know I always have money?" Witness said, "Well, I didn't know it;" and Miller said, "Why do you ask?"; and the witness said, "Because I need a hundred or two, and if you have been able to borrow money from the banks I would like to know how you got it. I need some money to buy a new wagon." Whereupon Miller said, "I will loan it to you. I have had some money all the time. Don't you know I worked in St. Louis for a street car company and drove team for the Hub Mill Company and such like that?" Just before they started home from Piedmont and while in the depot waiting for a train, Miller said to Alcorn, "If you want that money I had just as well give it to you one time as another," and thereupon he handed Alcorn $ 100. Alcorn offered to give security, but Miller said it was not necessary and did not take or ask for a note.

At the picnic where Miller contracted for the mules he paid one William George $ 6.50 in discharge of a debt. He had told George two weeks before that he could...