State v. Millsap

• Citation: 276 S.W. 625
• Decision Date: 06 October 1925
• Docket Number: No. 26140.,26140.
• Parties: STATE v. MILLSAIP.
• Court: Missouri Supreme Court

276 S.W. 625

STATE v. MILLSAIP.

No. 26140.

Supreme Court of Missouri, Division No. 2.

October 6, 1925.

Appeal from Circuit Court, Laclede County; W. E. Barton, Judge.

O. R. Millsap was convicted of murder, and he appeals. Affirmed.

C. H. Jackson, of Mountain Grove, and W. C. Irwin, of Jefferson City, for appellant.

Robert W. Otto, Atty. Gen. (Will F. Frank, Asst. Atty. Gen., of counsel), for the State.

HIGBEE, C.

On the evening of December 23, 1923, between 8 and 9 o'clock, Silas Moody, in company with his wife, infant child, and mother-in-law, was seated in the south room of his home in Wright county, Mo. He was seated immediately in front of the south window. The blinds were up. He was killed in this position by a shot fired from without, the charge passing through the window and lodging in his face, neck, and shoulder. He died in a short time, making no statement. No witness saw the shot fired. Mrs. Moody seized a gun from over the bed, ran out of the house in search of the ruffian, but found no one. Suspicion pointed to this defendant and Ernest Johnston. They were arrested on December 25, 1923, and indicted separately on January 10, 1924, at a special term of court. This defendant was placed on trial in the circuit court of Laclede county, where the case went on a change of venue. The trial resulted in his conviction of murder in the first degree on the second count, and a sentence to life imprisonment, from which he appeals.

The first count of the indictment charges the defendant as principal. The second count charges that Ernest Johnston committed the murder and that defendant was an accessory before the fact.

The evidence for the state is that in the summer of 1923, while Johnston and Millsap were working at Coffeyville, Kan., the appellant approached one Albert McIntosh and suggested to him that he could sell his Ford automobile to Ernest Johnston; that he and Johnston were going back to Missouri, where he would make whisky and Johnston would peddle it. McIntosh advised him not to do that, but defendant said there was but one man who could cause them any trouble; that that man was Sil Moody; that "we laid plans to kill him once before when I lived on Ernest's place, for meddling"; that he was making `whisky then. McIntosh suggested to him that it would be pretty poor business and a man might stand a chance of going to the penitentiary. To this the appellant replied, "Well, it's damned hard to prove anything on a man that you didn't see him do," and he added that if Silas Moody interfered and was killed he (McIntosh) would hear of it. Shortly thereafter Johnston and Millsap returned to Missouri.

A few days prior to the killing, Millsap went to the home of James Adamson and had a private conversation with him, in which he said:

"Jim, I am up against it. * * * Me and Ernest Johnston was running off a batch of whisky this evening and Sil Moody come up. We looked out and seen Silas Moody come up. We made up our minds at once what to do."

In this conversation Millsap further stated that they made up their minds at that time to kill Moody; that they drew a gun on him and made him get down on his knees and promise he would leave, and would tell nothing and would never come back; that after they turned him loose they made up their minds to kill him, wrap his body in a sack, carry it to the top of the hill, lay it under a tree, fire his gun, and leave him. Adamson remonstrated, stating that he (Millsap) would get himself into serious trouble, but the appellant replied: "Jim, if he don't leave here we will kill him." Appellant then left Adamson and called the latter's daughter, Della Moody, into the house and had a conversation with her, in which he told her that he and Ernest Johnston had been down at his henhouse making liquor; that they saw Silas Moody coming; that Ernest took his shotgun and drew it on Moody and made him promise to leave and not tell anything on them. He further stated in that conversation that if Moody did not leave the country they would kill him. In a conversation with Eli McIntosh shortly prior to the killing, appellant said, referring to the same incident, that "Moody snuck up there to his henhouse where he was banking around it, with a gun under his arm, and that Ernest Johnston drew a gun on him and made him hit the hikes." He said Ernest would kill Moody.

In a conversation with William Devers, about a month before the killing, appellant said that he thought Sil Moody was getting his rabbits, and if he caught him he aimed to shoot him. As they started home that afternoon, appellant said: "We'll get that s____ a b____ yet."

On the day of the killing Millsap and Johnston were seen together. W. H. Pasley and wife testified that they passed Millsap's house Sunday morning and again Sunday evening; that they saw Millsap and Johnston in the house together on both occasions.

J. M. Crewse, the sheriff of Wright county, testified that when he arrested Millsap and Johnston, on December 25, he found them together at Millsap's home, with a 32 Colt's pistol and a 12-gauge single-barrel shotgun in the house at the time.

On the day following the killing, appellant met Della Moody, James Adamson, and William Devers in the road, and, speaking of the killing, said that he knew he was not guilty of killing Moody for he did not go to meeting that night but stayed home and did not get up until after sunup the next morning. He then asked Della Moody not to say anything about what he had said to her at her father's home, for it was liable to get some innocent person into trouble.

While Johnston and Millsap were in jail, they told the deputy sheriff that if they were turned loose and given $500 they would show up the man who did the killing.

Immediately following the killing, footprints were discovered in the mud south of the window through which the gun was fired. They led around the house to the north. That evening, between 9 and 10 o'clock, one Lonnie Gray, returning from a hunt, found a rubber overshoe in front of his house. Gray lived about a quarter of a mile north of the deceased. The following morning Gray found the mate of this overshoe near his front gate. He took the overshoes that morning to Silas Moody's house and delivered them to the sheriff, who marked them with his initials. They were kept in custody by the sheriff and prosecuting attorney until the day of the trial. These rubbers were found to fit exactly in the footprints above mentioned. Following the arrest of Johnston, the shoes he was wearing were taken off his feet. The rubbers fitted them exactly. The outside surface of these shoes indicated that rubbers had been worn, the glossy or polished surface thereof showing as far up the sides of the shoes as the rubbers would extend. The shoes had been half-soled. They were rubber heeled, and the tacks in the half soles corresponded exactly with the imprints made on the inside of the bottoms of the rubbers, and the winged trade-marks on the bottoms of the rubber heels were plainly visible and corresponded exactly with the impressions thereof in the overshoes. In addition to this the general impression made by the heel and the half-sole fitted exactly, clearly indicating that these particular overshoes had been worn by Johnston. No explanation is offered as to how they were left at Lonnie Gray's, but the proof shows that Gray lived on the public road a quarter of a mile north of Moody's house, and that to go from Moody's to Johnston's one would ordinarily travel the road leading past Gray's home.

There was some testimony tending to discredit this testimony. Gray denied that the overshoes produced at the trial were the ones he delivered to the sheriff. He said the overshoes he found were newer than those produced at the trial. The sheriff and the prosecuting attorney, however, both testified that these were the same overshoes. There was other testimony to the effect that at the preliminary hearing the shoes were in the possession of the defendant and his counsel and that they were turned inside out and otherwise roughly handled.

The defendant testified that he spent Sunday afternoon and evening at the home of Walter Johnston, arriving there between 3 and 4 o'clock; that his son came shortly after he got there; that Ernest Johnston was there at the time; that they all ate supper together; and that he went home between half past 8 and 9 o'clock that evening. In this he is corroborated by Mrs. Walter Johnston and by Edna Johnston, her eleven year old daughter. They all testified that Ernest Johnston stayed all night there, retiring about 9 o'clock. Mrs. Julia Williams testified that she saw Millsap and his son going home that evening about 9 o'clock.

There was some testimony introduced to the effect that the witness Pasley and his wife were mistaken in the identity of the parties whom they took to be Millsap and Johnston at the Millsap home on the date of the killing. Ralph Pagan testified that he, Elvin Millsap, and Scott Millsap were at appellant's home Sunday afternoon, and that the appellant and Ernest Johnston were not there. The defendant offered evidence that his general reputation as a law-abiding citizen was good; the state offered evidence that it was bad.

The defendant withdrew his plea of not guilty and filed a plea in abatement. It charges that the grand jury had been formed improperly, there being no regular term of the court convened; that W. L. Vandeventer had been employed to assist the prosecuting attorney in prosecuting the defendant and was not an assistant prosecuting attorney, and that he appeared before the grand jury, questioned the witnesses, and advised the grand jury with reference to the case; that two of defendant's infant children, known to be the defendant's witnesses, were subpoenaed by the state and were forced to give their testimony before the grand jury while defendant was confined in jail; that at said term of court, although C. H....