State v. Schaeffer

• Court: Missouri Supreme Court
• Writing for the Court: Burgess
• Citation: State v. Schaeffer, 172 Mo. 335, 72 S.W. 518 (Mo. 1902)
• Decision Date: 16 December 1902
• Parties: STATE v. SCHAEFFER.

72 S.W. 518

172 Mo. 335.

STATE v. SCHAEFFER.

Supreme Court of Missouri, Division No. 2.

December 16, 1902.

MURDER — CUSTODY OF JURY — SEPARATION DURING TRIAL—INSTRUCTIONS—HARMLESS ERROR—CONVICTION OF LESSER OFFENSE—EVIDENCE—HEARSAY.

1. Under Rev. St. 1889, § 4209 (Rev. St. 1879, § 1909), providing that, "with the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment or recess of court during the trial, in all cases of felony, except in capital cases," and Rev. St. 1879, §§ 1910, 1966, declaring the separation of the jury in cases of felony, after retiring to deliberate, ground for a new trial, the separation of the jury in a capital case before retiring to deliberate does not vitiate their verdict where the state affirmatively shows by affidavits of the jurors that they were subjected to no improper influence while separated.

2. In a prosecution for murder, where there was no question as to the killing, and the evidence tended to show it was done with premeditation, it was not error to instruct the jury that they could return a verdict for murder in the second degree.

3. Error in not defining the term "violent passion," as used in an instruction on manslaughter in the fourth degree, is not ground for reversal of a conviction of murder in the second degree.

4. Statements, by one of the crowd in which the person killed was, that one of the crowd had a gun, are inadmissible in evidence in a prosecution for murder as admissions of a co-conspirator; the evidence showing that the conspiracy, if any, had been abandoned.

Appeal from circuit court, St. Charles county; E. M. Hughes, Judge.

Al Schaeffer was convicted of murder in the second degree, and appeals. Affirmed.

Norton, Avery & Young and T. F. Mc-Dearmon, for appellant. The Attorney General and Jerry M. Jeffries, for the State.

BURGESS, J.

Having been convicted of murder in the second degree, under an indictment charging him with murder in the first degree, and his punishment fixed at 10 years' imprisonment in the penitentiary, for shooting to death, with a shotgun, one Bud Henderson, defendant, after unavailing motions for a new trial and in arrest, appeals.

The homicide was committed at O'Fallon, in St. Charles county, Mo., at about 8 o'clock on the evening of the 2d day of September, 1900. Defendant, two of his sons, and a man by the name of Hollander, when not at work in the country, lived in an old blacksmith shop on the back part of a lot in O'Fallon, the front of which was occupied by one Vetch as a saloon. About 6 o'clock or 6:30 on the evening of the homicide, defendant's boys and Hollander were at the railroad depot in said town, and while there a controversy occurred between them and some other negroes who were there. Defendant, being informed that negroes at the depot were whipping his boys, went there and got the boys, and started back with them to the old shop where they lived; but when they got near the shop they found they were cut off, and were then assaulted by the same gang of negroes, and were forced to take refuge in Vetch's saloon. In the meantime the anti-Schaeffer crowd of negroes seems to have been joined by a white man by the name of John Moriarity. Schaeffer, after getting into the saloon, got his shotgun. A few minutes thereafter some one of the crowd of negroes who had assaulted defendant threw a rock at Schaeffer while in the saloon, and struck him on the shoulder. Schaeffer shortly thereafter with his two sons and Hollander, started to the country, to stay overnight with a friend, but had gone but a few steps when they again encountered the same gang of negroes, among whom was the deceased, Bud Henderson—some of them armed for the evident purpose of again assaulting defendant. When Schaeffer approached the crowd, Sanford Taggart, who was one of them, remarked: "Here comes Schaeffer with his gun. We better move." Bud Henderson and his nephew stepped behind a post, and Taggart stood still behind a tree; and, when defendant and his boy came up, defendant said, "Where is the black son of a bitch who had it in for me?" and pulled up his gun and shot; the charge taking effect in Henderson's left side, producing death immediately. Henderson was not doing anything when shot.

After the 12 men were selected and sworn to try the case, they were put in charge of Sheriff Dierker, with injunction by the court that they should be kept together and not permitted to separate; but during the whole of the trial, or at every intermission thereof, the jury was permitted to, and in fact did, separate, and when separated none of them were in the presence or sight of the sheriff. The record shows that all 12 of the men were guests of the Galt House, a hotel in the city of St. Charles, and that they occupied four separate rooms; that these rooms' were in the third story of the hotel; that there was no connection between these rooms, but that in said third story there were 12 rooms, all opening into a common court, and, to reach any one of these rooms, it had to be done from this court; that while the jury occupied 4 of the rooms, and the sheriff and his deputy 2 of the others, the other 6 rooms during the whole of the trial were occupied by guests of the hotel other than the jury and the sheriffs, and that this court was used in common by all of the guests, including the jury, and that often parts of this jury were seen in this court when neither the remainder of the jury, nor the sheriff or his deputy, were in sight; that the jurors divided into squads of 2 and 4, and had full control of their respective rooms, could go and come as they pleased, had the keys to the rooms, and could lock themselves in, or unlock the doors and come out, at their own free will; and that the sheriff and his deputy had separate rooms, not connected with the rooms of the jurors at all, and, as the sheriff says, "It was possible at any time for the jurors to leave their rooms or to admit others to their rooms." To overcome any presumption that the jury were tampered with at any time during the trial, and that they were not subjected to improper influences, the state introduced the affidavits of the sheriff and his deputy who were in charge of the jury all the time, and each one of the jurors, showing that the jurors were not subject to improper influence during the trial, nor is it claimed that they were in fact; but the contention is that the statute (section 2628, Rev. St. 1899) is mandatory, and the separation of the jury in violation thereof. It provides that, "with the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment or recess of the court during the trial in all cases of felony, except in capital cases." And it has been held, under this section, that a new trial is only mandatory because of the separation of the...