State v. Schmidt
| Decision Date | 19 January 1897 |
| Parties | The State v. Peter Schmidt, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Affirmed.
Martin & Bass for appellant.
(1) Challenge by defendant to venireman J. T. Williams should have been sustained. This case is not within the long line of cases of which State v. Elkins, 101 Mo. 344, is one. To change opinion of this juror defendant would be compelled to prove his innocence. Section 4197, Revised Statutes, 1889 should control. (2) It was error to permit the state to introduce in evidence the statement of codefendant, John Schmidt, obtained by deputy sheriff Hencken on the tenth day of February, 1896. The objection to its introduction should have been sustained because: First. Appellant being under arrest and in custody, the reading of John Schmidt's statement in defendant's presence should not give said statement the form and character of an implied admission as against him. John Schmidt, being a codefendant and jointly indicted with appellant, was not a competent witness. Therefore a statement made by him should not be admitted. State v. Howard, 102 Mo. 142; State v Young, 99 Mo. 666; R. S. 1889, sec. 4217; State v. Chyo Chiagk, 92 Mo. 395. Second. To permit the statement to be introduced as evidence on part of the state is to allow the state to do indirectly what it could not do directly. John Schmidt being alive and within the jurisdiction of the court, the state, desiring to use him as a witness against appellant, should have given defendant the opportunity which the constitution accords of meeting the witness face to face. Bill of Rights of Mo., sec. 22; State v. Able, 65 Mo. 357. (3) The court having admitted the statement of John Schmidt only for the purpose and upon the express ground of showing defendant's connection, if any, with the offense charged, it was the duty of the court to have limited that evidence to that phase of the case by an appropriate instruction. Omitting to do so was prejudicial error. (4) Neither the indictment nor the evidence warranted an instruction upon the theory of a conspiracy. (5) The conduct of juror Anthony Willmas in leaving and separating himself from the balance of the jurors and engaging in a conversation with Lee Mudd, Esq., was such conduct as to entitle defendant to a new trial. State v. Orrick, 106 Mo. 111. (6) It was error for prosecuting attorney L. A. Heidorn in his closing address to draw attention of the jury and refer to the fact that the defendant had not testified as a witness in the case. R. S. 1889, sec. 4219; State v. Moxley, 102 Mo. 374. (7) Appellant's supplemental motion in arrest should have been sustained. Appellant, being "a boy under the age of eighteen years and convicted of a felony," he must be committed to the state reform school for boys. Sess. Acts, 1895, p. 190, sec. 5.
R. F. Walker, attorney general, and Mortan Jourdan, assistant attorney general, for the state.
(1) The challenge to the juror J. P. Williams is insufficient, and it does not comply with, nor is the court informed of the specific objection to the juror, as required by the rule announced in State v. Taylor, 35 S.W. 92. The entire examination of this juror shows that he was competent and qualified and that the court very properly retained him upon the panel of forty. State v. Punshon, 34 S.W. 25; State v. Duffy, 124 Mo. 1; State v. Williamson, 106 Mo. 169; State v. Cunningham, 100 Mo. 386. (2) The court very properly admitted the statement of John Schmidt in evidence. It was shown positively and conclusively that this statement was read over to this defendant; that he concurred in most of it; that while the statement was being read to him he asked and answered questions in reference to facts contained in the statement; that it was indorsed and agreed to by this defendant and hence in fact and in law became his statement. State v. Murray, 126 Mo. 616. (3) It was unnecessary for the court to instruct the jury the purpose for which the statement of John Schmidt was admitted in evidence; but even if necessary defendant can not complain because he failed to except to the failure and refusal of the lower court to give all the necessary instructions in the case. State v. Paxton, 126 Mo. 500; State v. Cantlin, 118 Mo. 111. (4) The instruction in reference to a conspiracy to waylay and rob the deceased was proper. (5) The record fails to show the alleged misconduct of the juror Anthony Willmas in engaging in a conversation with Mr. Mudd. Matters of objection and exception can not be shown by mere ex parte affidavits filed after conviction and after the motion for new trial has been filed. State v. Foster, 115 Mo. 448. However, the affidavits filed upon the part of the state as to this alleged error controvert and show the falsity of the claim of the defendant. State v. Murray, 126 Mo. 618; State v. Orrick, 106 Mo. 127; State v. Sansone, 116 Mo. 11. (6) The record also fails to show misconduct upon the part of the prosecuting attorney in his argument to the jury.
At the January term, 1896, of the circuit court of St. Louis county, John Schmidt, Peter Schmidt and Samuel Foster were indicted for the murder of Bertram Atwater in the village of Webster Groves in St. Louis county on the night of the twenty-third 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 nineteenth 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 twelve 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 grip sack 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 in 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 in the chest on the right side, and entering between the second and third rib, severed the ascending aorta and...
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