State v. Mills

• Decision Date: 04 December 1917
• Docket Number: No. 20381.,20381.
• Citation: 199 S.W. 131,272 Mo. 526
• Parties: STATE v. MILLS.
• Court: Missouri Supreme Court

199 S.W. 131

272 Mo. 526

STATE v. MILLS.

No. 20381.

Supreme Court of Missouri, Division No. 2.

December 4, 1917.

Appeal from Circuit Court, Cooper County; J. G. Slate, Judge.

Walter Mills was convicted of murder, and appeals. Reversed and remanded.

Defendant, tried in the circuit court of Cooper county, for murder in the first degree, for that, as it was charged in the indictment, he stabbed and killed one Philip Carpenter, was found guilty, and his punishment assessed at death. From this conviction and the sentence bottomed thereon, he has, after the conventional motions, appealed.

The facts of this homicide, as the record discloses them, run about thus: On the night of March 31, 1917, Philip Carpenter (hereinafter for brevity called "deceased") and one Louis Orr, both of whom were printers, were together in the town of Boonville. After having taken a number of drinks of liquor, until deceased was somewhat under the influence thereof, and until Orr, as he himself admits, was very drunk, they started about 11:30 o'clock at night down a certain alley in the town of Boonville, along which, it seems, some considerable portion of the negro population of Boonville resides. After they had proceeded some little distance, Orr stopped, but Carpenter kept going until he had reached a point somewhere near the center of the alley. Walking in front of deceased, as he traversed this alley, was one Stella Goosberry, a negress, who, it seems, lived with her husband in a house situate somewhere in the vicinity. This negro woman, who, as stated, was in front of deceased some little distance, and considerably in front of Orr, who had stopped, met about the center of the alley two negro men, one Ed Porter, and defendant. This negress seems to have known both Porter and defendant; the former intimately, and the latter only casually. Upon meeting Porter and defendant, she complained to Porter that some men were following her, and asked him to stand at the point where she had met him, until she reached her home. Almost immediately after this, and while the three negroes were still near each other, deceased came up, and, walking between Porter and the negro woman, said to the latter, "Is there anything doing?" Thereupon Porter struck, or struck at, deceased (it does not clearly appear which). The two engaged in a fight, and the negro woman ran. This woman was a witness in the case, and the facts so far related turn almost wholly upon her testimony.

Shortly after this, Orr, who had accompanied deceased into the alley, came running out and stated, to a man whom he met, that deceased was in trouble down the alley. The alarm spread, and certain persons went down the alley, and found deceased lying therein, stabbed and fatally wounded. A knife had been driven into the back of his neck, at the point of juncture of the head with the spinal column, almost severing his head from his body. From this wound he died some 12 hours later.

For some days defendant was not suspected of this murder; but Orr, who had been the companion of deceased during the evening on which deceased was killed, was arrested and held in custody for some three or four days. Subsequently the defendant, who had left Boonville and gone to Kansas City, was arrested and charged with this murder. Upon being arrested, he confessed to the marshal and to the sheriff that he had stabbed the deceased, and attempted to tell them fully and in detail how the murder was committed. He told these officers of his going through the alley with Porter, of the meeting of the negro woman by Porter and him, and of part of the conversation which the woman had with Porter; but he did not hear the remark made by deceased to the negro woman. He told of the fight between Porter and deceased, and, touching his own connection therewith, said that he stood by without taking any part for some time, but that he had his knife partly open in his pocket with his hand on it; that deceased, in the course of the fight between him and Porter, came close to defendant and struck at him; and that thereupon he struck with his knife and stabbed deceased in the neck.

Defendant upon the trial testified as a witness in his own behalf. He there denied stabbing deceased at all, but did testify that deceased struck at him either with his hand or some weapon, it was too dark he swore for him to distinguish which, and that thereupon he struck at deceased with his hand, in which he held a knife; but that he did not touch deceased, and, beyond striking at deceased when the latter struck at him, he took no part whatever in the fight between Porter and deceased. He denied having left Cooper county for the purpose of avoiding arrest and trial for the stabbing of deceased. He explained his presence in Kansas City by the statement that he and three others of his color and acquaintance had before the killing already agreed to go to Kansas City as soon as they were paid off, and that he went as soon as he got his money. Whether the other three went to Kansas City the record does not disclose.

At the close of defendant's cross-examination, he was asked by counsel for the state if he had ever been convicted of any crime, and he denied that he had been. Thereupon he was specifically asked by counsel for the state if he had not been convicted of vagrancy in the police court of the town of Boonville. He denied that he had ever been so convicted; whereupon, in rebuttal, the state offered the police judge, who testified that the records kept by the witness' predecessor showed that defendant had been convicted of vagrancy in the police court of the town of Boonville, on the 10th day of February, 1913.

The trial resulted, as stated, in finding defendant guilty of murder in the first degree, and in a sentence to death as punishment therefor.

Such other facts as may be necessary to an understanding of the points we find ourselves compelled to discuss will be found in our opinion.

L. O. Schaumburg, of Boonville, for appellant. Frank W. McAllister, Atty. Gen., and E. M. Connor, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

Defendant urges upon our attention numerous alleged errors. Many of these we find ourselves unable to review for lack of proper preservation of them for review. Some of the points urged, but not properly saved, we find ourselves compelled to review, because they may arise upon the next trial, since, for errors appearing of record, we find it necessary to reverse and remand the case.

Among other matters urged, defendant complains that the learned trial court erred: (1) In instructing the jury upon the presumption arising from flight, for that (a) the facts shown by the record do not warrant any instruction upon the subject, and (b) the instruction given was bad; (2) in allowing defendant to be questioned, in an effort to impeach him about his conviction in the police court of vagrancy, and in offering testimony of such conviction, when defendant denied the fact; (3) in failing to instruct the jury on (a) manslaughter, and (b) on circumstantial evidence; and (4) in instructing the jury on accessories before the fact. These in their order.

I. The instruction given by the court on flight read thus:

"The court instructs the jury that flight raises the presumption of guilt, and if you believe from the evidence that the defendant, after having stabbed and killed Philip Carpenter, as charged in the information, fled the country, and tried to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence."

It is clear that this instruction by its terms assumes defendant's guilt and begs the question upon the most vital issue in the case. It was the province of the jury to find and say whether the defendant "stabbed and killed Philip Carpenter," and not the province of the court to assume this fact as true. If the stabbing had been admitted by defendant and his defense had been self-defense, no harm would have flowed from this assumption. But here defendant unequivocally denied that he stabbed deceased, and while the great weight of the testimony, and even his own extrajudicial confessions, unerringly point to the falsity of his denial, yet we have uniformly held that the instructions must take their color from the evidence, and that it is error to disregard the defendant's testimony (State v. Weinhardt, 253 Mo. 629, 161 S. W. 1151) unless the physical facts contradict such testimony beyond dispute or cavil. If, however, in the instant case the jury had seen fit to believe the testimony of the defendant, he was guilty of no crime and must have been acquitted. It was defendant's right to have the jury pass upon this vital issue as to who stabbed the deceased, and the court could not invade that right and assume that defendant did it. State v. Vaughan, 141 Mo. 514, 42 S. W. 1080; State v. Lee, 182 S. W. 972.

Upon the contention that no instruction whatever upon the subject of flight was warranted by the facts, we are not able to agree with learned counsel. These facts were that, on the Wednesday which followed the stabbing of deceased on Saturday night preceding, defendant left Cooper county and went to Kansas City, where he was shortly after arrested at a place and under environments which might well argue an attempt at concealment. We think that the jury had the right to consider whether defendant's admitted going away from the scene and county of the alleged homicide was or was not for the purpose of avoiding arrest and trial for this crime. But we are likewise thoroughly convinced that the instruction (or a separate one), which leaves to the jury to find the intent with which defendant left Cooper county and went to Kansas City, ought also aptly to embody the explanation which defendant gave upon the witness stand of his alleged flight, or reason for his presence in Kansas City. State v. Potter, 108 Mo. 424, 22 S. W. 89; State v....