State v. Moberly

Citation26 S.W. 364,121 Mo. 604
PartiesThe State v. Moberly, Appellant
Decision Date08 May 1894
CourtMissouri Supreme Court

Appeal from Buchanan Circuit Court. -- Hon. Silas Woodson, Judge.

The indictment in this cause charges that Luther Moberly, Joseph Howard and Dena Elliott, on the twenty-fourth 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, Missouri, engaged in a general merchandise business, and that his residence was about one hundred and fifty yards from his storeroom; 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 24, Moberly, Elliott and Howard were in Rushville, and were seen together. On the night of the twenty-fourth, 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 number 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-barreled 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 type-written pages; the bill of exceptions is not indexed; the above extracts, however, will suffice for the present purpose.

Reversed and remanded.

W. K. Amick for appellant.

(1) The court erred in not sustaining the defendant's motion for new trial on the ground of newly discovered evidence. The testimony of Dena Elliott was newly discovered, it was not cumulative, it was competent and material. It tends to prove absolutely that the defendant had nothing whatever to do in the commission of the crime and no doubt would have changed the verdict of the jury. The court in passing on this point overruled it on the ground that in his opinion the testimony of Dena Elliott would not be believed by the jury. This power to determine what effect the evidence would have upon the jury at another trial is beyond the discretion of the court. It was solely the province of the jury to determine what weight and credit should be given to it. It should have been submitted to the jury for their consideration. The court had no right to deprive the defendant of the benefit of this testimony. State v. Wheeler, 94 Mo. 253; State v. Bailey, 94 Mo. 315; State v. Murray, 91 Mo. 103; State v. Curtis, 77 Mo. 267; 1 Graham & Waterman on New Trials, 172; 3 Graham & Waterman on New Trials, 1053-1057. (2) The court committed error in admitting the testimony of Mollie Conrad and Nellie Allison, regarding the declarations of Dena Elliott made one week before the crime, in which Elliott said that John Barrigar, Luther Moberly and Joseph Howard were going to rob Wells' store on that night. These declarations referred to another crime and were inadmissible. State v. Daubert, 42 Mo. 242. (3) The court should not have refused instruction number 10 asked by defendant. Instructions numbers 11 and 14 should also have been given. State v. Daubert, 42 Mo. 242. (4) Instructions numbers 12 and 15 should also have been given. State v. Walker, 98 Mo. 103; State v. Daubert, 42 Mo. 239; State v. Belcher, 125 Ind. 419; State v. Walls, 125 Ind. 400, 419; Whart. Crim. Law [8 Ed.], sec. 1401, and notes; 1 Greenleaf on Evid., sec 111. (5) The court should have given instruction number 19. There was no evidence of any conspiracy, in which defendant was a party, to commit the crime charged in the indictment. 8 Crim. Law Mag., 823; Desty's Am. Crim. Law, 11a; 2 Whart. Crim. Law [7 Ed.], sec. 1314a; 63 N.Y. 88-92; 90 Ill. 384.

R. F. Walker, Attorney General, for the state.

(1) The evidence supports the conviction, and the verdict ought not to be disturbed. State v. Banks, 23 S.W. 1079. (2) The state's instructions correctly declare the law. (3) A new trial ought not to be awarded on the ground of newly discovered evidence. State v. Wilson, 21 S.W. 443. (4) The indictment follows the language of the statute (R. S. 1879, sec. 3489) and is sufficient.

OPINION

Sherwood, J.

I. 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 is what the record purports. Section 29, art. 6, Const.; R. S. 1889, sec. 4178; State v. Gonce , 87 Mo. 627; R. S. 1889, secs. 3322, 3323. This being the case, Judge Ramey acquired jurisdiction to try the cause, of which he could not be divested by the subsequent action of Judge Woodson, and that jurisdiction thus created, under our repeated rulings, continued until the final determination of the cause. State v. Hayes, 81 Mo. 574; S. C., 88 Mo. 344; State v. Sneed, 91 Mo. 552, 4 S.W. 411; State v. Davidson, 69 Mo. 509. This view should accomplish the reversal of the judgment.

II. But that judgment must be reversed on other grounds: Evidence was admitted to show many things wholly foreign to the present prosecution. For instance, the testimony as to what Mollie Conrad told about a conversation between Dena Elliott and Barrigar to rob his uncle's store. This was long before the shooting, and the plan it seems had been abandoned, and never carried out. Evidence of such independent and disconnected crimes was, of course, inadmissible. State v. Parker, 96 Mo. 382, 9 S.W. 728, and cases cited; State v. Daubert, 42 Mo. 242.

The same line of remark is applicable about the burning of a store building at Huron in Kansas, where Wash Wells, a brother of Emmett Wells, was residing; Wash Wells being accused of the arson, and defendant being subpoenaed as a witness at the trial; this being several months before the shooting. And the same may be said of any threatening or blackmailing...

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