State v. Rudolph

• Decision Date: 02 February 1905
• Citation: 85 S.W. 584,187 Mo. 67
• Parties: STATE v. RUDOLPH.
• Court: Missouri Supreme Court

85 S.W. 584

187 Mo. 67

STATE v. RUDOLPH.

Supreme Court of Missouri.

February 2, 1905.

MURDER — PROSECUTION ON INFORMATION — EVIDENCE — OTHER CRIMES — IMPEACHING WITNESS — SHACKLING WITNESS — MAINTAINING GUARD OVER DEFENDANT — OFFICIAL CHARACTER OF DECEASED — DEFENDANT'S KNOWLEDGE — INSTRUCTION.

1. Const. U. S. Amend. 5, prohibiting prosecution for a felony except on presentment or indictment, limits only the federal power, and does not prevent prosecution of a felony by a state on an information.

2. On a trial for murder, where defendant claims the killing was in self-defense, the state may, for the purpose of showing that deceased was not on the premises for an unlawful purpose, prove that one of the men in the party of deceased had in his possession a warrant for arrest of defendant for burglary committed several years before.

3. On a trial for murder, self-defense being claimed, and defendant's evidence being that deceased and his party attacked the house in which he was, and began shooting, without any explanation of their purpose, evidence that defendant had committed a bank robbery only a few weeks before the homicide is admissible as explanatory of his desperation manifested by his conduct at the time of the killing, as detailed by the state's witnesses.

4. On a prosecution for murder, the admission of an affidavit of a witness for defendant tending to show that defendant was guilty of robbery, is not error, she having on her cross-examination stated that it was false, and the court having advised the jury that it was to be considered only on the question of witness' credibility.

5. Refusal of the court to remove the shackles from a witness while testifying for defendant is not error, it appearing by affidavit of the sheriff that he was a desperate character, sentenced to be executed for murder.

6. It is not error for the court to have a substantial guard attending defendant during his trial for murder, there being evidence that he is a desperate character.

7. On a trial for murder of one of the posse who had gone with a warrant to defendant's home to arrest him, it is not necessary to instruct on the question of defendant's knowledge of their official character, though defendant testified that they came to the house with guns in their hands, and began knocking at and kicking the doors, and shooting without any announcement of their purpose, or that they were officers, whereupon he went out and attacked them; the point not having been reached where it was necessary for them to indicate their official authority.

Valliant, J., dissenting.

In Banc. Appeal from Circuit Court, Franklin County; Wm. A. Davidson, Judge.

William Rudolph, alias William Anderson, was convicted of murder, and appeals. Affirmed.

J. R. Garstang, Jas. A. Finch, Jesse H. Schaper, and Jesse M. Owen, for appellant. H. S. Hadley, Atty. Gen., E. C. Crow, Atty. Gen., and C. D. Corum, for the State.

PER CURIAM.

The following opinion of FOX, J., in Division No. 2, is adopted and approved as the opinion of the court in banc, in which all concur, except VALLIANT, J., who dissents for the reasons assigned in his dissenting opinion, and MARSHALL, J., absent:

FOX, J.

"On the 16th day of February, 1904, there was filed in the office of the clerk of the circuit court of Franklin county, Mo., the affidavit of O. L. Vedder, charging the defendant, William Rudolph, alias William Anderson, with having murdered Charles J. Schumacher on the 24th day of January, 1903. Afterwards, and on the same day, the prosecuting attorney filed his information, based on said affidavit, formally charging the defendant with murder."

Appellant, by motion to quash duly filed, challenged the validity of the information, which motion was by the court overruled. There is no necessity for reproducing here that motion. It will be given proper attention during the course of the opinion. Defendant was duly arraigned, and the trial proceeded. Upon the trial the testimony on the part of the state tended to establish the following state of facts: "That on the night of December 26, 1902, the Bank of Union, at Union, Mo., was burglarized by two men, and a large amount of money and other property was stolen. It afterwards developed that the parties who burglarized the bank were the defendant and Fred Lewis, alias Fred Collins. Collins has been tried, found guilty of murder in the first degree, and hung, in accordance with the judgment of this and the trial court, for the murder of Charles J. Schumacher. The burglary was committed by the use of nitroglycerin, with which the robbers blew open the vault and safe. These men were observed in the act of burglarizing and robbing the bank, but they escaped with their booty, which consisted of a large amount of gold, silver, and paper money, in the sum of about $14,000, together with eighty or ninety thousand dollars worth of bonds and bills receivable. The deceased, at the time of the burglary of this bank, was in the employ of the Pinkerton Detective Agency, and was detailed to discover and apprehend the persons connected with the burglary of the bank. Accordingly he was sent to Franklin county to make such investigations as he deemed expedient. In making these investigations he traveled over the greater portion of Franklin county, and reached Staunton on the 21st or 22d of January, and there discovered that the defendant, who had been from his home, which was situate near Staunton, for about four years, had recently returned, and had brought with him another man, known in the neighborhood as Collins, but whose real name was Fred Lewis. The deceased's suspicions were leveled against these men, and, acting upon his suspicions, and from the circumstances and information obtained, he, in company with a young man of the neighborhood, left Staunton on the morning of the 22d of January, two days before the killing, ostensibly for the purpose of hunting rabbits, but in reality to make further investigation as to the truth of his suspicions that the defendant and Collins had burglarized the bank. During the course of the day they reached the premises of Frank Rudolph, who is the stepfather of the defendant, and where the defendant was then staying. The deceased and his comrade knocked at the door of the Rudolph home, and asked for a drink of water. The door was opened just wide enough to permit one of Rudolph's sisters to hand out a cup of water. The water was drunk, and then deceased stated that he and his companion had been hunting, were hungry, and asked if they could obtain dinner. Rudolph's sister retired from the doorway, when defendant came up, and inquired what it was that the deceased wished. He was advised, and thereupon he said, `Hand me your guns, gentlemen.' The guns were handed to the defendant, and by him placed in a corner of the room, while deceased and his companion ate dinner. The meal finished, the deceased and his associate departed. When they returned to Staunton, the deceased applied to a justice of the peace for a search warrant, in order that he might search the Rudolph home, and also a warrant for the arrest of William Rudolph. The warrants were obtained. At about the same time he requested the sheriff of the county to come to Staunton, and assist in making the arrest. The sheriff sent his deputy, Louis Vedder, to Staunton, to assist; but, before leaving Union, Vedder obtained a warrant for the arrest of Rudolph upon the charge of burglary, after which he organized a posse of men at Staunton, composed of the deceased, Emanuel Cromer, and B. F. Tichenor, which posse accompanied the deputy sheriff to the Rudolph home, which was located about four miles northwest of Staunton. The Rudolph home is about sixty feet long, forty feet wide, two stories high, with four doors on the west side, faces west, is situate on a slight elevation which slopes westward. It is located near the edge of a clearing, on which trees were standing at various places. The deceased, together with the posse, approached the Rudolph home from the west side. The Rudolph family at this time consisted of Frank Rudolph, stepfather to the defendant, Nancy Rudolph, defendant's mother, and defendant's two sisters. These persons, together with Collins and one Harmes, an uncle of the defendant, were in the house at the time of the approach of the posse. One of the defendant's sisters, from a window of the house, observed the posse approach. She advised the defendant of the observation, and the evidence on behalf of the state shows that defendant and Collins sprang to their feet, looked out of the window, and the defendant said, `It is them,' whereupon Collins inquired, `What shall we do?' and the defendant said, `We will shoot our way out.' The evidence further shows that the deceased, the deputy sheriff, and two other parties accompanying them approached the house in the ordinary manner. Tichenor had been told to go to the northwest corner of the house, in order to prevent escape from that quarter. The other three men — Schumacher, Cromer, and Vedder — went to the second door and knocked. As soon as they knocked they heard some one running about in the house, and they knocked again. The door at which they knocked was not opened, but the defendant and Collins came rushing out of another door of the house with weapons in their hands, the defendant having a Winchester and a pistol and Collins a pistol in each hand. As soon as defendant and Collins emerged from the house, they commanded the parties outside to throw up their hands. The deceased and Cromer complied with the command, and defendant and Collins began firing their weapons at once. The deceased made no effort to fire his gun, and held the same in one of his uplifted hands, and while in this position he received several wounds in his body, one of these striking him in the head. After the deceased had fallen, the defendant took his gun and cartridges. The body of the deceased remained...