State v. Orr

• Decision Date: 31 October 1876
• Citation: 64 Mo. 339
• Parties: STATE OF MISSOURI, Respondent, v. SAMUEL ORR, Appellant.
• Court: Missouri Supreme Court

64 Mo. 339

STATE OF MISSOURI, Respondent,

v.SAMUEL ORR, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Lawrence County Circuit Court.

J. W. Patterson, for Appellant.

J. L. Smith, Att'y Gen'l for Respondent, cited: State vs. Phillips, 24 Mo. 475.

NORTON, Judge, delivered the opinion of the court.

The defendant, jointly with R. H. Hart, Albert Cox and James Orr, was indicted in the circuit court of Christian county at its October term, 1875, for murder in the first degree, for killing one George W. Davis, in December, 1873. On the petition and affidavit of defendant, based upon the alleged prejudice of the inhabitants of Christian county, a change of venue was awarded to Barry county, from the circuit court of which county a subsequent change of venue was awarded to Lawrence county, on the ground of the alleged prejudice of the judge. At the March term, 1877, of the Lawrence circuit court, defendant was put upon his trial which resulted in a verdict of guilty.

Motions for a new trial and in arrest of judgment having been overruled, the cause is brought hereby appeal.

The counsel for appellant having neither filed an assignment of errors nor brief (although the case was advanced on the docket and set down for hearing at two different times), we have carefully looked through the record to discover whether any error was or was not committed by the trial court.

The evidence as disclosed by the record shows that Davis, the deceased, was, about dark, on the 11th of December, 1873, murdered, by being shot twice in the back of the head, once between the shoulders and once in the small of the back. He was killed in the hog lot a short distance--about fifty yards--from his residence, no person witnessing the tragedy but a little son of deceased, about seven years of age, who testified that about dark, after the deceased and himself had just finished feeding some fattening hogs, two men with long overcoats came up and asked his father if he had any feed to sell, who replied that he had; that the two men jumped over into the feed lot and were walking through the lot, one by his father's side and one behind him that they had gone but a little way when they shot his father several times and ran off towards the Wire road; that his father was dead when he got to him; that he saw no horses with the men. It was shown that Davis lived about one-half mile from the road leading from Springfield to Cassville (known and spoken of by the witnesses as the Wire road), and that the distance from Springfield to the residence of deceased was about eighteen miles. It was proven that about eleven o'clock of the day of the murder, Orr, the defendant, and Albert Cox left Springfield on horse-back, “Orr having on a blue great government overcoat,” and a black gum overcoat tied to one of the saddles, and took the road known as the Wire road, leading to Cassville. One of them was riding a black or brown horse, and the other a white or gray. Orr and his companion, Cox, were traced by the evidence of a large number of witnesses along this road to within half a mile of Davis' house, at which point they were seen about sundown. A number of the witnesses met them and talked to Orr. To one he said he was going to Arkansas with a drove of stock, either horses or mules or both, that had, a short time before, passed ahead of him. To another he said he was going out hunting, and to another that he was going to a trial.

Both had overcoats on according to the evidence of some, and only one according to the evidence of others. It was also proven by one witness that about twenty minutes before seven o'clock, P. M., of the day of the killing, he met two horsemen on the Wire road riding rapidly toward Springfield about six miles from Davis' house; that he spoke to them without receiving any response; that one of them was riding a white or gray horse; the color of the other he could not tell as it was too dark. It was also shown that Orr and his companion, Cox, had along with them a bottle which contained spirits; that the bottle was a square bottle, larger at the top than it was at the bottom. The day after the killing several witnesses testified that two or three hundred yards from the scene of the murder, they found a place where two horses had been hitched in the woods, about five feet apart, and at one of the hitching places they found gray or white hairs which had been rubbed off one of the horses; that they also found, not far distant, another place where a halt had been made with the horses, and at this latter place they found a square bottle with a few drops of gin in it, answering the description of the bottle which had been seen in the possession of Orr and Cox on the Wire road. It was also shown that Orr returned to the saloon in Springfield, at which he was a bar tender, between nine and eleven o'clock of the night of the murder, and that when he took off his coat he pulled out three pistols. One witness testified that about one week before he heard of the killing of Davis he had a conversation with Orr, who told him that he, Orr, had a good thing to make a raise of four or five hundred dollars, that he wanted to kill a fellow; that he lived south, and that he wanted witness to go with him, saying they could ride to the place and back in a day, and all he wanted of witness was to hold the horses in the brush while he killed the man. Witness asked him what was the trouble, and the name of the man, some two or three times, when Orr said his name was Davis, and requested him to say nothing about it.

It was proven by several witnesses that previous to the killing Orr had but little money, and afterwards he was seen with considerable sums, and on one occasion flourished a roll of bills as large as a man's wrist, saying that he had blood money.

Defendant, upon being re-arrested, after escaping from the jail, remarked, in answer to the question why he did not get away? that he would have done so if they had met him at the place they had promised him, and that “by G-d, monied men had hired me to do this, and now that they must be running around at liberty, and I must lie here and suffer for it. I'll blow on the whole G-d d--n thing.” No evidence was offered on the part of ...