State v. Schmidt

• Decision Date: 19 January 1897
• Citation: 136 Mo. 644,38 S.W. 719
• Parties: STATE v. SCHMIDT.
• Court: Missouri Supreme Court

38 S.W. 719

136 Mo. 644

STATE v. SCHMIDT.

Supreme Court of Missouri, Division No. 2.

January 19, 1897.

MURDER — EVIDENCE — JURORS — REMARKS OF PROSECUTING ATTORNEY — PUNISHMENT — REPEAL OF STATUTE.

1. One who states that he knows nothing of the case, except from newspaper articles, and who is not shown to have read reports of the testimony of witnesses, and is without prejudice, his opinion being entirely conditional on the truth of the reports he has read, is competent as a juror.

2. Witness may testify that a statement made by a certain person as to the particulars of the murder was read over to defendant, and that he acknowledged that it was true, the statement thus becoming his own, where he was under no compulsion, and no promises were held out to him.

3. Evidence that the killing was in an attempt to rob deceased justifies the submission of charge of murder in the first degree.

4. For counsel to all attention to the fact that, at a time before the trial, when a statement of a third person as to the particulars of the murder was read to defendant, he did

not deny it, is not objectionable as calling attention to his failure to testify at the trial.

5. Rev. St. 1889, § 3461, providing that persons convicted of murder in the first degree shall suffer death, is not repealed by implication, as to persons under 18 years old, by the act to provide for government of the state reform school (Acts 1895, p. 190), which, by section 5, provides for commitment thereto of boys under 18 years old convicted of a felony; the act only purporting to regulate an institution provided for persons whose punishment is by imprisonment.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Peter Schmidt, alias Cotton Smith, was convicted of murder, and appeals. Affirmed.

Martin & Bass, for appellant. R.F. Walker, Atty. Gen., and Morton Jourdan, for the State.

GANTT, P. J.

At the January term, 1896, of the circuit court of St. Louis county, John Schmidt, Peter Schmidt, and Samuel Foster, three negroes, were indicted for the murder of Bertram Atwater in the village of Webster Groves, in St. Louis county, on the night of the 23d of January, 1896. Upon motion a severance was granted to each, and they were each duly arraigned. The defendant Peter Schmidt, or Cotton Smith, as he is often called in the record, entered his plea of not guilty, and the cause was set down for March 9, 1896. At that time a jury was impaneled, the evidence heard, and a verdict of guilty of murder in the first degree rendered. Motions for new trial and in arrest were promptly filed, heard, and overruled, and the defendant sentenced to be hung on the 19th day of June, 1896. From that sentence this appeal has been prosecuted. The evidence discloses a clear case of murder, in an attempt to rob the deceased, Atwater. Mr. Atwater was a sketch artist, and had his studio in Chicago. On the night of January 23, 1896, he came to Webster Groves, a village some 12 miles west of St. Louis, on the Missouri Pacific Railway, to visit his friend, Mr. Orton, who resided in the village, and about a half mile from the station. The train on which he came arrived at 8:08 o'clock in the evening. He alighted with his grip, and some instruments he used in sketching, and went at once to a barber shop near by. At the barber shop he engaged the defendant to carry his grip for him. Defendant asked the barber how long it would take to shave Mr. Atwater, and was told, "About ten minutes." Defendant left the shop for the avowed purpose of getting his gloves, but he went immediately to a saloon near by, and called out John Schmidt, and asked him if he didn't want to do a job that night, and, being asked by John who the intended victim was, said he was from Chicago, and said he had "a lot of money on him." These two then called the other defendant, Sam Foster, out, and asked him to go; and he consented, if he could get a gun, which John offered to furnish, and did procure for him. It was then agreed that John Schmidt and Foster should go ahead, to a place agreed upon, and that, when they cried "Hands up!" Cotton, this defendant, should drop the gripsack and fall down. The two then repaired to the place selected for the robbery, and this defendant returned to the barber shop; and, when Mr. Atwater had received his shave and arranged his toilet somewhat, they started together. In his admissions to several witnesses, he states that Mr. Atwater inquired whether there were any robberies being committed in this neighborhood, and says he told him a great many, and that they were likely to meet some robbers that night; that thereupon Mr. Atwater shifted his revolver to his right-hand coat pocket, and said he was prepared for them. They soon met Foster and John Schmidt, and John Schmidt thrust his pistol into Atwater's face, and ordered him to throw up his hands; but Atwater immediately drew and fired at John, wounding him quite severely, and John and Foster both fired, one of the balls striking Atwater...