State v. Moberly

• Decision Date: 08 May 1894
• Citation: 26 S.W. 364
• Parties: STATE v. MOBERLY.
• Court: Missouri Supreme Court

26 S.W. 364

STATE v. MOBERLY.

Supreme Court of Missouri, Division No. 2.

May 8, 1894.

JURISDICTION — CHANGE OF JUDGE DURING TRIAL — FELONIOUS ASSAULT — EVIDENCE — NEWLY-DISCOVERED EVIDENCE.

1. Where a special judge was called in, at the request of the regular judge, and for a time presided in a case, he acquired jurisdiction to try the case, which could not be divested by the regular judge; and the fact that the latter completed the trial is ground for reversal.

2. On a trial for felonious assault with a shotgun on W., wherein E. testified that he and defendant had conspired to kill and rob W., and that defendant did the shooting, testimony as to a conversation between E. and B., long prior thereto, about robbing W., which plan was abandoned, was inadmissible.

3. Evidence that defendant had written a blackmailing letter to a brother of W. was inadmissible.

4. Evidence that defendant, under an assumed name, had received a postal written in shorthand, was inadmissible.

5. Though W. was the guardian of E., and had charge of his money, a statement by defendant, made several months before the shooting, that E. owed him a gambling debt, and that he would have the money or E.'s blood, was inadmissible.

6. Where E., who was the principal witness in a prosecution for felonious assault on W., and testified that he and defendant conspired to kill and rob W., and that defendant did the shooting, makes affidavit that his testimony was false, and that he was hired by W. to so testify, this is newly-discovered evidence, for which a new trial should be given.

Appeal from criminal court, Buchanan county; Silas Woodson, Judge.

Luther Moberly was convicted of a felonious assault, and appeals. Reversed.

The indictment in this cause charges that Luther Moberly, Joseph Howard, and Dena Elliott, on the 24th of April, 1891, made a felonious assault on Emmett C. Wells, by shooting him with a shotgun. A severance being granted defendant, he was put upon his trial, and a mistrial was the result. This was in 1891. Again, in 1892, he was tried, and convicted as charged, his punishment being assessed at two years in the penitentiary; hence this appeal.

The testimony shows that during 1891, E. C. Wells was a merchant at Rushville, in Buchanan county, Mo., engaged in a general merchandise business, and that his residence was about 150 yards from his store room. That Luther Moberly, Dena Elliott, Joseph Howard, and John Barrigar were young men, who also resided at Rushville. Elliott was the ward and nephew of Wells, who, as his guardian, had about $2,000 in his possession, belonging to Elliott. That Elliott was continually making application to Wells for money. That Wells refused to give him money, except such as was necessary for his sustenance and schooling. During the afternoon of April 24th, Moberly, Elliott, and Howard were in Rushville, and were seen together. On the night of the 24th, just before Wells closed his store to start home, Elliott came into the store where Wells was counting the money and preparing to leave, took a water bucket, and went to a public well near by to get water, returning in a few moments with a bucket of water. About the time of Elliott's return to the store, Wells left, going out the back way, where he would pass his stable on his way to his house, taking with him, in his overcoat pocket, between $200 and $300 in money. This had been his custom and his practice, and was well known to the defendant and his associates. When Wells had gotten to the barn, he was shot in the right side of the head and body, and seriously wounded. From the shot picked from his head and body it was evident that it was a charge of No. 6 shot, and that a shotgun had been used. After the shot was fired a man was seen running from the stable into and down the alley. The night was clear, with bright moonlight; but Dr. Morrison, by whose place a man supposed to be the assassin ran, would not undertake to say who it was. It was also shown from a track leading down the alley that the assassin and Luther Moberly wore the same size shoes. Some time after the shot was fired, and when several persons had gathered at the store of Wells, Moberly appeared upon the scene with a double-barrel shotgun, one barrel of which was empty, the other containing a loaded shell. The persons present were talking about securing some arms, and attempting to find the perpetrator of this crime, when Moberly offered the loan of the gun. It is shown that he borrowed the gun shortly before the shooting; that he stated then and at the time that he brought it to the store of Wells, after the shooting of Wells, that he had been out in a pasture hunting dogs. Soon after the shooting, all of the parties were arrested. Elliott made a full confession or statement, in which he said that a conspiracy had been arranged and entered into by Moberly, Howard, and himself to kill and rob Wells. Two of the state's witnesses — Mollie Conrad and Nellie Allison — testified that on one evening prior to the shooting Dena Elliott was at their house, visiting, when Barrigar came there to see Elliott, when they went outside, and stood whispering together. That Elliott wrote, or pretended to write, a note or order on Wells, which order Barrigar took with him. That night Elliott told these women of the conspiracy to rob Wells' store; but, though Wells was their uncle, they never gave him any hint or warning of the plot to rob him. It is also shown that Moberly called at the post office for mail addressed to some fictitious person; that he received a postal card written in cipher. The defendant Moberly testified, denying any connection with the crime, and attempted to establish the presence of a stranger, who was seen leaving the town that night, after the shooting, carrying a valise and a shotgun. The record in this case covers hundreds of typewritten pages. The bill of exceptions is not indexed. The above extracts, however, will suffice for the present purpose.

W. K. Amick, for appellant. R. F. Walker, Atty. Gen., for the State.

SHERWOOD, J. (after stating the facts).

1. At the March term, 1892, of the Buchanan criminal court, as the record recites, "on account of the sickness of Judge Woodson's family, by agreement of parties in writing, Judge Henry M. Ramey is selected as special judge to try this cause. It is therefore ordered that the cause be tried by Judge Henry M. Ramey." On the next day, as the record shows, Judge Ramey sat in the cause, and granted an application for a continuance, presented by the state. At the next June term the record recites that Judge Ramey tried this cause, showing that on several days, during which the cause progressed, he sat on the bench. The bill of exceptions, however, purports to be signed by Judge Woodson. But the counsel for the respective parties have, by stipulation, agreed that the cause was tried before Judge Woodson, but the stipulation filed does not controvert that Judge Ramey was called in to try the cause, and did preside therein, as already related. This record recital must, therefore, be regarded as showing that Judge Ramey sat in the cause on the request of Judge Woodson, for such...