State v. Page

• Court: Missouri Supreme Court
• Writing for the Court: Fox
• Citation: State v. Page, 212 Mo. 224, 110 S.W. 1057 (Mo. 1908)
• Decision Date: 19 May 1908
• Parties: STATE v. PAGE.

110 S.W. 1057

212 Mo. 224

STATE v. PAGE.

Supreme Court of Missouri, Division No. 2.

May 19, 1908.

1. CRIMINAL LAW — APPEAL — RECORD—BILL OF EXCEPTIONS — AMENDMENT — REVIEW OF APPLICATIONS FOR CONTINUANCE.

The ruling on an application for continuance can only be reviewed by the Supreme Court when the application is properly preserved in a bill of exceptions duly signed by the trial judge and filed in the trial court, and an omission of such application cannot be remedied by any suggestion of a diminution of record.

2. HOMICIDE—MURDER — EVIDENCE — INTIMACY BETWEEN ACCUSED AND DECEDENT'S WIFE.

In a murder trial, the state may show unduly intimate relations between accused and decedent's wife, as tending to show a motive for the homicide.

3. SAME.

In a murder trial, a telegram sent by accused to decedent's wife, informing her that he had shot decedent, was admissible, as showing friendly relation between accused and decedent's wife and as an admission that he shot decedent.

4. CRIMINAL LAW — APPEAL — OBJECTIONS IN LOWER COURT—RECEPTION OF EVIDENCE.

An objection that evidence admitted is irrelevant and immaterial is insufficient to preserve for review the question whether the evidence was proper.

5. SAME—EXCLUSION OF EVIDENCE.

The Supreme Court will not review a ruling excluding questions asked witnesses, where the examining party did not indicate to the trial court the nature of the evidence sought to be elicited.

6. SAME—NEW TRIAL—OBJECTIONS TO JURY— TIME FOR MAKING.

Accused's objections that the jury was not properly selected, and was not summoned by an officer duly authorized to execute the process, were too late when first made in a motion for new trial, where information as to who summoned the jury could have been readily secured, and accused and his attorneys knew before the trial closed that the jurors were not summoned by proper officials; it being the duty of accused's attorneys at the beginning of the trial to ascertain whether the panel had been properly summoned.

7. SAME—MISCONDUCT OF JURY—UNSUPPORTED AFFIDAVIT OF ACCUSED—EFFECT.

To entitle one convicted of an offense to a new trial on the ground of misconduct of the jury shown by his unsupported affidavit, the affidavit must be explicit, indicating whether he was an eyewitness to the misconduct, or, if not, from whom he obtained the information, and why he is unable to procure supporting affidavits.

8. SAME—PRESUMPTIONS.

Where a new trial is asked on the ground of misconduct of the jury, the question whether there was misconduct is for the trial court's determination, and its determination will be presumed to be fair and impartial.

9. SAME.

That the record fails to show that the sheriff was sworn at the close of the trial to take charge of the jury, etc., does not entitle one convicted of an offense to a new trial.

10. SAME—HARMLESS ERROR—REFUSAL OF INSTRUCTIONS.

Accused cannot complain of the refusal of instructions where they were fully covered by those given.

11. HOMICIDE—MURDER — EVIDENCE — SUFFICIENCY.

Evidence held to sustain a conviction of murder in the second degree.

12. CRIMINAL LAW — APPEAL — VERDICTS — CONCLUSIVENESS.

A verdict on conflicting evidence, sustained by substantial evidence, and approved by the trial court, will not be disturbed on appeal.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

William Page was convicted of murder in the second degree, and he appeals. Affirmed.

This cause is brought to this court by appeal from a judgment of conviction of the defendant of murder in the second degree in the Scotland county circuit court. The information upon which this prosecution is predicated was an amended one and filed in the circuit court of Scotland county on May 15, 1905. Omitting formal parts, it charged the defendant with the offense of murder of the first degree in the following form: "John E. Luther, prosecuting attorney within and for the county of Scotland and state of Missouri, on his oath of office informs the court and charges the fact to be that the defendant, William Page, on the 16th day of March, 1905, at the county of Scotland and state of Missouri, in and upon one Ed Kelly, then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought did make an assault and a certain pistol, a deadly weapon, which was then and there loaded with gunpowder and leaden bullets, and by him the said William Page held in his right hand, the said William Page did then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, shoot off and discharge at and upon him, the said Ed Kelly, thereby and thus striking the said Ed Kelly with one of said leaden bullets, inflicting upon the back of him the said Ed Kelly one mortal wound of the diameter of about a fourth of an inch and of the depth of eight inches or more, of which said mortal wound the said Ed Kelly from the 16th day of March, 1905, until the 27th day of March, 1905, at Memphis, Missouri, in the county aforesaid, did languish and languishing did live, on which 27th day of March in the year aforesaid at Memphis, in the county and state aforesaid, of said mortal wound aforesaid the said Ed Kelly died, and so the said prosecuting attorney aforesaid, under his oath of office aforesaid, informs the court and charges the fact to be and does say that said William Page him the said Ed Kelly at the county of Scotland and state of Missouri, aforesaid, in manner and by the means aforesaid, feloniously, willfully, deliberately and premeditatedly, on purpose and of his malice aforethought, did kill, and murder, against the peace and dignity of the state." This information was duly verified by the prosecuting attorney. At the January term of the Scotland county circuit court, defendant was put upon his trial. We have examined in detail the evidence developed at the trial as disclosed by the record, and have compared it with the statement as made by the Attorney General as to what the evidence tended to show. We find from such examination that this statement is substantially correct, at least it is a sufficient statement to indicate the nature and character of the testimony upon which this cause was submitted to the jury and to enable us to determine the legal propositions involved in this record.

The state's evidence tended to show that the defendant had been on very friendly and intimate terms with the wife of the deceased; that he frequently called at the deceased's home during the day, and also during the night, when the deceased was not at home; and that he was frequently seen walking on the streets of Memphis in company with the deceased's wife, and on one occasion, about 9 o'clock at night, the deceased pursued the defendant and the deceased's wife, and they ran into a neighbor's house for protection. The evidence further tended to show that the deceased's wife left Memphis and went to Colorado Springs, where she instituted a suit for divorce against the deceased. The summons was sent to the sheriff of Scotland county, but the deceased was not then at home, and the defendant talked with the sheriff and advised that the summons be sent to an adjoining county, where he said the deceased then was. The evidence further showed that the defendant purchased two money orders from the postmaster at Memphis, which were made payable to the wife of the deceased, and which he sent to her at Colorado Springs, stating to the postmaster and his deputy that the money was to pay for her divorce. The defendant said to several parties in Memphis that he had separated the deceased and his wife. Prior to the shooting, the defendant went into a saloon and showed a picture which he carried in his watch, which defendant stated to the barkeeper, Thomas O'Day, and to others in the saloon, was a picture of the wife of the deceased. He also said that he received letters from that woman. To John Hines, an insurance man, the defendant showed a picture of the wife of deceased, and also a letter that he had received from her. Joseph Russell, who was working on a church near the defendant's home, frequently saw the defendant and deceased's wife walk along the street together. Afterwards, the defendant showed Russell a picture of this woman, called her his wife, and said that he (defendant) would feel all right if he had his wife. He also told Russell that he had sent for her divorce. A barber named Meyers testified that he frequently saw defendant carrying a pistol, and one evening shortly before the shooting defendant showed his pistol to Meyers and asked him to look at it. Meyers asked what he wanted with it, and defendant replied that he might have use for it before long, as he had parted Kelly and his wife. On the evening of the 16th of March, 1905, shortly after supper, the defendant and the deceased met in the office of the Central Hotel in Memphis, and the deceased said that he wanted to speak to defendant. The deceased asked the defendant for certain correspondence that he had with the deceased's wife, which the defendant declined to give him. There was then a little more conversation, which the witnesses did not fully understand, and the defendant retreated from the deceased, the deceased following him, and the two ran into a bedroom adjoining the hotel office. In a little while the defendant returned to the office, and said: "That fellow thinks I am trying to steal his wife." The defendant then pulled a pistol from his hip pocket, and said: "If I could have got my gun out, I would have killed that fellow." The defendant then put his pistol in his inside coat pocket. In a little while, the defendant looked through the window and saw the deceased, and said: "If you want to see me, come in, and you can talk to me." The deceased came into the room, and the defendant walked behind the show case, which was about four feet high. The deceased again called for this...