State v. Neighbaker

• Decision Date: 22 November 1904
• Citation: 83 S.W. 523,184 Mo. 211
• Court: Missouri Supreme Court
• Parties: STATE v. NEIGHBAKER et al.

83 S.W. 523

184 Mo. 211

STATE v. NEIGHBAKER et al.

Supreme Court of Missouri, Division No. 2.

November 22, 1904.

HOMICIDE — ALIENS — INFORMATION — TRIAL — VARIANCE — JURY — MISCONDUCT.

1. Rev. St. 1899, § 2534, provides that whenever, on a trial for felony, a variance appears between the information and the evidence in the name of any person therein described, such variance shall not be deemed ground for acquittal, unless the court shall find that the variance is material, and prejudicial to the defendant. Held, that where the information charged defendant with killing "Harry Kowallio," and the proof was that deceased's name was "Henry Kavalsky," though a number of witnesses, while testifying, identified the deceased by the name of Kowallio, and others testified he was usually known among his associates by that name, the variance was not material.

2. Where, after a prosecution for homicide had been given to the jury, they were properly locked up in a private room, the fact that the sheriff temporarily left the door, and that some one could have approached the outside of the jury room and could have communicated with the jury, was insufficient to avoid the verdict, in the absence of any charge that any one did so communicate, though the prosecuting attorney stated that a third person had told him that nine of the jury were in favor of hanging defendant.

3. There being no provisions in any of the treaties between the United States and Austria, providing that citizens of Austria in the United States shall be prosecuted only by indictment, and there being no provision of the federal Constitution depriving any state of the right to adopt the method of prosecuting crimes by information, it is no ground for objection to a conviction of murder that an accused subject of the Emperor of Austria was tried by information, and not by indictment.

Appeal from Circuit Court, St. Francois County; Jas. D. Fox, Judge.

John Neighbaker and others were convicted of murder in the second degree, and they appeal. Affirmed.

R. C. Tucker and H. B. Ledbetter, for appellants. E. C. Crow, Atty. Gen., and C. D. Corum, for the State.

GANTT, P. J.

On the 8th day of October, 1902, the prosecuting attorney of St. Francois county began the prosecution of the defendants for murder in the first degree of Harry Kowallio, by filing an information against them in due and approved form duly verified by his affidavit. As the information is in all respects sufficient in form, it is unnecessary to repeat it in this statement. The defendants were arrested, and afterwards, on January 15, 1903, in open court, they were duly arraigned, and entered their pleas of not guilty. On the 16th of January, 1903, a jury was duly impaneled to try the cause against all three of the defendants, and on the 17th day of January, 1903, the jury returned into open court their verdict finding each of the defendants guilty of murder in the second degree, and assessing the punishment of each at 99 years in the State Penitentiary. Motions for a new trial and in arrest of judgments were filed in proper time, heard and overruled, and on the 23d day of January, 1903, each of the defendants was separately sentenced in conformity to the verdict. From those sentences they severally appeal to this court. The time for filing the bill of exceptions was extended by the court to August 10, 1903, and it was accordingly filed on that day. The evidence tended to make a very simple case. The deceased and the defendants and nearly all of the witnesses were Hungarians. They lived in "Hungarian Town," a section of the town of Desloge, in St. Francois county. One Peter Winosky and his wife kept a boarding house in the village. On the evening of the homicide the deceased and others were at this boarding house, and, together with the proprietor, were drinking beer, and while thus engaged one of the defendants — John Neighbaker — appeared on the scene. After he had been there a short time, a controversy sprung up between Harry Kowallio and John Neighbaker about a board bill. John commenced on Kowallio, and cursed him for not paying his board bill, and they got into a dispute about it. This created such a disturbance that Mrs. Winosky came in from another room, and requested John, one of the defendants, to leave, and because of indecent language to her she slapped him, and he returned her blow, and then the others present put him out, and shut or locked the door. They marched him out. About half an hour later John Neighbaker and his two brothers, Anton and Henry, his codefendants, came back to Winosky's. They came into the downstairs room, where the witnesses were drinking beer with some others. Anton and Henry went upstairs. Harry Kowallio had preceded them, and was on his bed asleep. Fifteen or 20 minutes after Henry and Anton went up to Kowallio's room, John returned, and bursted a window out, and came into the house in that way. He inquired for Kowallio, the deceased, and ran upstairs. All three of them then were in Kowallio's room. One of them took hold of Kowallio by the head and the other by the feet, and held him down. He was asleep. He seems not to have been awakened by their handling of him. He was lying on his stomach or side, and while Henry and Anton held him their brother John stabbed him with a long knife, about a foot or 16 inches long. The two brothers Henry and Anton then left the room and house, and all the party except one. As John came down, he struck that witness with his fist, and passed out. Several then returned, and went into the room, and found Kowallio had been stabbed in the side, and was bleeding profusely. He died about 10 minutes later. Three wounds were inflicted on Kowallio in his back, from the effects of which he died. There was evidence that soon after the stabbing of the deceased, the defendants John and Henry Neighbaker returned to their house or cabin, changed their clothing, and took a small bundle of clothes in a handkerchief, and bade Anton good-bye, and left, and were afterwards apprehended in St. Louis. Dr. English, the coroner, described the wounds he found on the body of the deceased, Kowallio, and testified they produced his death. There was some evidence of loud and angry words in the room in which Kowallio was killed just prior to the stabbing, and of a tussle between Kowallio and John Neighbaker after John had been put out of Winosky's house, and before he went to his home and procured the large knife with which John killed Kowallio. There was also evidence that the deceased was named Kovalsky and evidence that he was known and went by the name of Harry Kowallio among his associates and at the boarding house. The defendants offered evidence that their reputation as peaceable men in the community in which they resided was good. There was also evidence that witnesses heard noises as if a fight was going on in the house. There was also evidence that deceased was seen to shake his fist at John Neighbaker before John was put out of Winosky's house. There was evidence that the defendants came from Galicia, in the empire of Austria; that they had never been naturalized and become citizens of the United States of America. At the close of the evidence the court instructed the jury on murder in the first and second degree, reasonable doubt, and credibility of the witnesses.

The defendants prayed the court to instruct the jury that under the pleadings and evidence they must acquit the defendants, which instruction was refused. The defendants also prayed the court to instruct the...