State v. Porter

• Decision Date: 04 December 1917
• Docket Number: No. 20380.,20380.
• Citation: 199 S.W. 158
• Parties: STATE v. PORTER.
• Court: Missouri Supreme Court

199 S.W. 158

STATE v. PORTER.

No. 20380.

Supreme Court of Missouri, Division No. 2.

December 4, 1917.

Appeal from Circuit Court, Cooper County; J. G. Slate, Judge.

Ed Porter was convicted of murder in the second degree, and he appeals. Judgment reversed, and cause remanded.

The appellant and one Walter Mills were together charged with murder in the first degree, committed upon one Philip Carpenter. After a severance was granted the defendant was convicted in the circuit court of Cooper county, in May, 1917, of murder in the second degree, and from that judgment he appeals.

It appears from the evidence in the case that Walter Mills, who is mentioned in the evidence by the ominous soubriquet "Midnight," had already been tried and convicted of murder in the first degree for killing Carpenter. He appeared in this case as a witness for the state.

Porter and "Midnight" were colored men. Philip Carpenter, a white man, was a linotype machinist, and worked in a newspaper office in Boonville. On the night of March 31, 1917, Carpenter and one Louis Orr were engaged in a Saturday night loafing stroll about the town. They did some drinking, visited some pool rooms, and spent the evening wandering in various places around town. When it was nearly midnight they were walking down an alley when something occurred (the precise nature of which is not clear) which caused Orr to turn back, while Carpenter continued on his course. He had gone a little distance when Orr heard sounds which indicated trouble; "scuffling" is the word he used to describe what he heard, though there is reason to believe he saw more of the affray in which his friend was engaged than he told about. He ran up the street and "gave the alarm" to one Willard Beaman, who returned immediately to the spot, and found Carpenter lying on the ground, badly wounded, and apparently unable to explain what had happened. He was lying on his back with a deep knife wound in the back of his neck, which partly severed the spinal cord, causing his death the next day. He had scratches and bruises on his face, with a severe cut on his mouth, and a lump somewhere about his head, indicating, according to witnesses, that he had been struck in the face and on the head. Orr did not return to the scene with Beaman, and his suspicious conduct caused his arrest, but he was released in a few days, after Porter and Mills had been apprehended.

It appears that after Orr left Carpenter to continue down the alley by himself Carpenter encountered a colored woman by the name of Stella Gooseberry. Her story is to the effect that as she was going home along the alley she saw two men, presumably Carpenter and Orr, and Carpenter followed her. Soon she met Ed Porter and Walter Mills and asked Ed to stand in the alley until she got home. This, she explained, was for protection, because she was afraid. Ed said he would go home with her, but she told him "No," just to stand there. Just then Carpenter walked between them and made a remark which she chose to regard as insulting and to which she made a tart reply. Carpenter did not attempt to molest her further, but Porter, she said, immediately struck him. She ran on home, and saw nothing more of the difficulty, but shortly afterwards passed through the alley and saw Carpenter lying there, and did not see anybody with him. She did not know until the next day that Carpenter was killed.

Mills' testimony is to the effect that he and Ed were coming through the alley when they met Carpenter, and Ed struck him. They both staggered and "boxed around there a little while," when Ed struck the man again, and he fell. After Carpenter fell Ed kicked him a few times, and "Midnight" went to Ed and told him to come on. When they got a few steps Ed remarked that he ought to have "killed the s____ of a b____," and went back. Witness heard "rocks sounding." He did not know whether Ed was throwing at the man or not. He was obliged to go and pull Ed away, "jerk him loose," from the fallen man. Witness admitted that he himself had a knife, and during the progress of the fight between Porter and Carpenter struck at Carpenter with his knife. The next day, when they learned that Carpenter was dead, Porter told him not to say anything about it.

On cross-examination by defendant's counsel he said he went to Ash Burnham that night and told Ash:

"When you go home you had better be careful, because Ed has beat up a fellow down there, and he is liable to lay for you and knock you in the head."

He said that when he cut at the man it was before Ed Porter knocked him down; that after Ed Porter knocked him down he did not get up.

Porter's account of the matter is that he and Mills had been drinking during the day, and were at Ash Burnham's house, somewhere in the neighborhood, and had started home, when he heard Stella Gooseberry call to him. She called to him three times before he got to her, and when he offered to go home with her, she declined and requested him to wait there until she got home. Then he saw the white man, and heard him ask the Gooseberry woman if there was anything doing, and he heard her tell Carpenter to go on about his business. Immediately defendant struck at him with his fist, but missed him, because he slipped and fell down. He did not strike at him any more or touch him. He had no knife. When he and "Midnight" came out of the alley, "Midnight" told him he put a knife to the man's neck. That was the first time he heard of any cutting.

Some days later, after he learned that "Midnight" had told some one about the crime, he went to D. W. Cosgrove, attorney, and told him about it, and also informed the prosecuting attorney. The reason he waited so long before he told about it was because he wanted to wait until "Midnight" told somebody first, so that he would "have proof." It appears also from Porter's testimony that there was blood on his clothes, and he explained that the suit which he wore was given to him by Dr. Ravensway; that he was the doctor's office boy and chaufffeur, and sometimes assisted him in his surgical operations; that when the doctor got blood on his clothes he gave Porter the clothes, and he (defendant) had on such a suit of clothes that night.

Several witnesses were introduced to show statements made by the defendant to the effect that he hit Carpenter, but he was drunk and fell down, and that "Midnight" cut Carpenter in the neck, and told Porter as the two left the scene: "I have finished the work. You don't have to finish it." The effect of these statements is that he admitted hitting Carpenter and spoke of the cutting by "Midnight" as if he had seen the act.

The defendant introduced Ash Burnham, at whose house the two negroes were just before the trouble, and he stated that after the affray that night "Midnight" told him in the saloon that Ed had knocked a man in the head. He said: "We knocked a fellow in the head, and I have to get off the street." Presumably this was offered by defendant as a part of the res gestæ.

Evidence was introduced to show that Carpenter had a good reputation, while it appeared that the reputation of "Midnight" was as ill-favored as his name.

John Cosgrove and D. W. Cosgrove, both of Boonville, for appellant. Frank W. McAllister, Atty. Gen., and E. M. Connor, Asst. Atty. Gen., for the State.

WHITE, C. (after stating the facts as above).

I. The defendant asked several instructions on the theory that he could not be convicted unless the jury should find there was a conspiracy or an agreement between the defendant and Mills to kill Carpenter or to do him some bodily harm. The trial court refused them, and error is assigned to the ruling.

They were properly refused. The defendant was tried and convicted on the theory that he was a principal in the second degree under the statute (section 4898), or aider and abettor of Mills, who actually struck the fatal blow. Either he was not guilty as charged because, according to his own statement, although he assaulted Carpenter, he did not strike him, and did not participate in the murderous attack of Mills, and did not know that Mills entertained any felonious intent until afterwards, or he attacked with felonious intent himself, and Mills came to his assistance, and in the joint efforts of the two to commit a felony upon Carpenter Mills struck the fatal blow, or, knowing Mills' purpose to commit a felony upon Carpenter, after the attack was begun, he united his efforts with that of "Midnight" in its perpetration. In either of which last two hypotheses he would have been guilty without the existence of a conspiracy. Red v. State, 39 Tex. Cr. R. 667, 47 S. W. 1003, 73 Am. St. Rep. 965, loc. cit. 968; State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360; White v. People, 139 Ill. 143, 28 N. E. 1083, 32 Am. St. Rep. 196, loc. cit. 200.

As to what actually took place, and the order and sequence of events at the time Carpenter met his death, after the Gooseberry woman left, the jury were obliged to infer, largely from circumstances and from what the two actors in the tragedy stated, each of whom was desirous of shifting the guilt upon the other. It is easy to believe that Porter was the first aggressor, that he made an unprovoked attack...