State v. Murray

• Decision Date: 14 February 1887
• Citation: 3 S.W. 397,91 Mo. 95
• Parties: STATE v. MURRAY.
• Court: Missouri Supreme Court

3 S.W. 397

91 Mo. 95

STATE v. MURRAY.

Supreme Court of Missouri.

February 14, 1887.

1. CRIMINAL PRACTICE — SEPARATION OF JURY — MURDER.

On a trial for murder a separation of the jury, by which some of them remain in the dining-room of a hotel, while others go out of their sight into a saloon, with the sheriff, during the progress of the trial, and after the jury were put in charge of the sheriff, is ground for reversal. NORTON, C. J., and RAY, J., dissenting.

2. SAME — NEW TRIAL — NEWLY-DISCOVERED EVIDENCE.

Where, on an indictment for murder, a main ground upon which a verdict of guilty is arrived at on circumstantial evidence is the identification of a knife as belonging to defendant by a principal witness, an affidavit by a member of the grand jury to the effect that such witness had made very different statements as to the character and description of the knife outside of the court-room to those made by him on the witness stand, is newly-discovered evidence, sufficient to form grounds for a new trial.

Appeal from St. Louis county.

Atty. Gen. Boone, for respondent. Henry R. Watson, for appellant.

SHERWOOD, J.

The defendant was indicted for the murder of John Prince. On being tried, he was found guilty of murder in the first degree, and sentenced accordingly. The evidence on which the verdict of guilty rests is altogether circumstantial. The dead body of Prince was found on Monday, the twenty-first of September, 1885, lying, face downwards, in Maline creek, with his throat cut, and various injuries on the head, inflicted, apparently, with a club which was found near by, as also was a knife, which it was sworn was that of the defendant. Prince was last seen alive in company with the defendant, something like a quarter of a mile distant from the scene of the crime, about 1 o'clock on Saturday, the nineteenth day of September, prior to the day when the body was found, and this is the date fixed by the indictment as the day of the murder. The body of Prince, when found, was dressed in a new suit of clothes, and it was disclosed in evidence that it was Prince's intention to visit the city of St. Louis that day, and it does not appear that he had on a new suit of clothes when last seen alive. The inculpatory circumstances relied on by the state to sustain the conviction consisted in these facts: That the defendant was last seen with the deceased when alive, and within about a quarter of a mile from where the body was found; that tracks were found at the supposed scene of the crime resembling tracks which it was stated the defendant made by the shoes he then wore; that about two hours after Prince was last seen alive, going towards Ferguson station, with the defendant, the latter was seen returning from that direction, going towards Carsonville, with both knees and the right thigh of his pants soiled with earth; that on the south side of the bank of the creek where the body was found there was an indication that somebody had slipped in getting up the bank; and that the knife found near the body of Prince was the knife of the defendant. For the defense the good character of the defendant was well established, and there was evidence tending very strongly to contradict that of the state's witnesses as to the knife being that of the defendant, and as to his wearing shoes such as could have made the tracks in question. It was also disclosed in his behalf that, on his return towards Carsonville, he was seen going towards and quite near Mrs. Heine's spring, and that a person getting a drink at that spring without a cup would have to kneel down, or get down on all fours, and the defendant testified that he soiled his pants in that way. And Hempstead, a witness for the state, testified positively that he saw the deceased on Saturday and Sunday in a bar-room in Normandy, immediately preceding Monday, the twenty-first day of September, on which he was reported to be and was found dead.

1. Owing to the conclusion reached in the case it is unnecessary to discuss the first instruction given on behalf of the state in reference to the omission of the words "malice aforethought" from the definition of murder in the first degree. It is always safer, however, to follow approved precedents in drafting instructions. 2 Bish. Crim. Law, § 673b.

2. There was no error in refusing an instruction on the subject of an alibi. The testimony of Hern on the subject of defendant living in the city of St. Louis at the time the murder was committed was too vague and inconclusive, unsupported, as it was, by the statement of any fact showing that the witness knew when Prince was killed, to base an instruction upon.

3. Nor was there any error in instructing the jury that if the defendant, etc., killed Prince "in some of the modes and by some of the means specified, defined, and described in the indictment," etc. The indictment contained two counts; one charging the killing to have been done with a knife, and the other charging that the killing was done in some way and manner, etc., to the grand jurors unknown. The indictment had been read to the jury, and it was impossible for them to have been misled by the language of the instruction as to this point.

4. The jury in this cause were allowed to separate. Some of them were suffered to remain in the dining-room of the hotel, while others of them went up to the bar of the saloon, out of sight of those who were in the dining-room, the sheriff standing inside of the saloon, and two or three feet from the door; and this...