State v. Schmulbach

• Decision Date: 01 June 1912
• Parties: STATE v. SCHMULBACH.
• Court: Missouri Supreme Court

147 S.W. 966

STATE v. SCHMULBACH.

Supreme Court of Missouri. Division No. 2.

June 1, 1912.

1. JURY (§ 103)—IMPANELING JURY—OPINIONS OF JURORS—DISQUALIFICATION.

The action of the court in impaneling veniremen who had formed opinions solely from rumor and newspaper reports, but who satisfied the court that they could give accused a fair trial, is not ground for a reversal.

2. CRIMINAL LAW (§ 815)—EVIDENCE OF FLIGHT—INSTRUCTIONS.

Where, on a trial for murder, the evidence showed that accused, shortly after the killing of decedent, a police officer in a city, went to the home of his brother-in-law in the city and remained concealed about five weeks, when he left the city, that the killing immediately created great excitement, that armed men scoured the country for accused, that threats of mob violence were made, that accused's brother-in-law informed him of the facts and on account of them urged accused to remain in hiding, the court, charging that flight raises a presumption of guilt, must charge that if accused fled from fear of mob violence, and not to avoid arrest and trial, the flight should not be considered; and the failure to do so was reversible error.

3. CRIMINAL LAW (§ 338)—EVIDENCE—ADMISSIBILITY.

On the trial of accused for the murder of a police officer while escorting to the police station accused's wife and another woman, arrested, without a warrant, on the ground of being women of ill repute, the evidence of the bad reputation of accused's wife and her companion was inadmissible, in the absence of special circumstances making it competent.

4. HOMICIDE (§ 158)—THREATS—EVIDENCE.

On the trial of accused for the murder of a police officer while escorting to a police station accused's wife and a female companion, who were arrested, without a warrant, on the ground of being women of ill repute, evidence that some 20 minutes before the killing accused, speaking of the action of the police in arresting numerous women, stated that the police would keep on "until some of them got blowed up" was admissible as an implied threat directed against a class to which decedent belonged; and its vagueness only affected its weight.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

William Schmulbach was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Geo. A. Neal and Clay & Davis, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

BLAIR, C.

Defendant was convicted of murder in the second degree and sentenced to 30 years in the penitentiary. He appealed.

The evidence for the state tended to show that on the night of November 15, 1909, Officers Smith and Graney of the Joplin police force, acting under a general order to arrest all women of bad character, arrested defendant's wife and one Minnie McDonald at 803 Main street, in Joplin. When arrested, the women demanded to know whether the officers had a warrant, and were told they had not. They at first refused, on this account, to submit to arrest, but changed their minds, on condition that they be permitted to use the telephone to arrange for bond. This Mrs. Schmulbach did, leaving word with the prospective bondsman to inform her husband of her plight and have him also go to the police station. The message was delivered as requested. The officers and the women then left the place to go to the station; the former, at the suggestion of their prisoners, walking some little distance in advance, in order that the fact the women were under arrest might not be advertised more than necessary. For the same reason, the party proceeded westward toward Joplin street, a less traveled thoroughfare. As they crossed the street at the intersection of Eighth and Main, and after the officers had passed some 30 or 35 feet west of and beyond the corner, and the women had reached the corner and were on the sidewalk at the northwest corner of the street intersection, defendant who had come south on Main street and reached a point near the corner, called to his wife, who walked north on Main street to meet him; her companion remaining on the corner. The officers were attracted by defendant's speaking to his wife, and by the fact their prisoners were no longer following them, and one had started up another street, and started quickly back. Officer Graney testified that when he and Smith reached a point five or six feet west of the door across the southeast corner of the building on the northwest corner of the intersection of Eighth and Main he heard some one say, "What's the matter here?" or, "What the hell is the matter here?" and defendant's wife replied: "They are taking us to jail, and Graney struck me." Graney stepped past and in front of Smith, and defendant came into view, stepped off the sidewalk at a point about 18 feet from the officers, fired three or four times, ran into Main street, and fired three or four shots more. Another eyewitness testified that defendant commenced the shooting, firing three shots; that the officers stepped back toward the building and fell against each other, and then two or three more shots were fired, the reports being louder than before, and witness thought these shots were fired by one of the officers. He had seen Officer Smith's pistol in his hand before defendant fired. He heard no other shots. He heard some one say, just before the shooting began: "There's the son of a bitch! Shoot him—" and the firing immediately began. After firing, defendant ran and passed out of sight near the entrance to...