State v. Seward

Citation247 S.W. 150
Decision Date09 December 1922
Docket NumberNo. 23772.,23772.
PartiesSTATE v. SEWARD.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

James Seward was convicted of murder in the first degree, and he appeals. Affirmed.

Instruction No. 4 was as follows:

"No. 4. The court further instructs the jury that if you find and believe from the evidence that the defendant brought on the difficulty, or entered into it with the intention of killing, or inflicting great personal injury upon, said Andrew Deck, then the danger in which he found himself during such difficulty, if any, would not extenuate his offense or reduce its grade at all; but if he voluntarily brought it on, or entered into it without any intent of killing or inflicting great personal injury upon said Andrew Deck, and during such difficulty it became necessary for him to kill said Andrew Deck to save himself from being killed or receiving great personal injury, then he cannot be entirely excused; but in that case you should find him guilty of manslaughter, and you will assess his punishment at imprisonment in the penitentiary for a term of not less than two nor more than ten years, or by imprisonment in the county jail not less than six months nor more than one year, or by a fine of not less than $500, or by both a fine not less than $100 and imprisonment in the county jail not less than three months nor more than one year."

R. A. Frazier, of Hillsboro, for appellant. Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

Statement.

REEVES, C.

Upon an indictment, defendant was convicted of murder in the first degree and sentenced to death. From the judgment and sentence, he has duly prosecuted his appeal.

The indictment charged that "at the county of Jefferson * * * on the 26th day of February 1921," he "feloniously on purpose, and of his malice aforethought willfully, deliberately, and premeditatedly, did shoot and strike" one Andrew Deck, inflicting wounds upon the said Deck, from which he died two days thereafter.

It was further alleged:

"That Eugene Hayes, Ernest Hayes, William Hayes, Jesse Thomas, Otto Thomas, and Alvie Thomas, before the said felony and murder was committed, * * * did * * * unlawfully, feloniously, willfully, deliberately, and premeditatedly, incite, move, procure, aid, counsel, hire, and command him, the said James Seward, the said felony and murder aforesaid, in manner and form aforesaid, and by the means aforesaid, to do and commit."

The evidence for the state tended most strongly to sustain the above charge.

The deceased and appellant's alleged accomplices resided at Herculaneum in Jefferson county. Appellant resided in the city of St. Louie. It appeared from the state's evidence that some of appellant's accomplices had been accused of violating the prohibitory liquor laws, and that the deceased was blamed by them for prosecutions instituted against them. They became vindictive toward deceased and proposed to inflict corporeal punishment upon him.

Eugene Hayes resided with his father, Ernest Hayes, at Herculaneum, but spent much of his time in St. Louis. He was acquainted with appellant and arranged with him "to beat up" the deceased for a consideration of $35.

On the afternoon preceding the homicide, which occurred a few minutes before 8 o'clock p. m., the appellant and Hayes went to Herculaneum from St. Louis. Hayes defrayed all of the expenses in accordance with their arrangement. Upon their arrival at Herculaneum, they were met at the railroad station by members of the Hayes family, named as accomplices. Several conferences were thereupon held between appellant and his alleged accomplices, all relating to the matter of punishing Deck. Shortly before the homicide, armed with a 38-caliber revolver and a "billy" furnished him by Eugene Hayes, appellant went to the home of the deceased. He represented himself to be a prohibition enforcement officer. He said that other enforcement officers wanted to see deceased and that his services were needed immediately to help make a "pinch." Appellant exhibited what appeared to be a badge of authority, whereupon the deceased prepared to and did accompany appellant out on the street. The deceased had with him his five year old boy, whom he dressed before starting. The three had not proceeded very far from the house when appellant provoked a controversy with the deceased, made an assault with the "billy," and then shot him. After being shot, deceased was able to make his way to the home of witness Aloise Wagner, where he knocked on the door for admittance. Wagner opened the door, whereupon the wounded man "fell in my arms, and then he says, `Bill, I am shot.'" This occurred about three minutes after Wagner had heard the report of the fatal shot. Wagner then testified:

"I asked him who done it, and he says, `It was a man from St. Louis.' He says, `He was a stranger, and it was the Thomases and the Hayes bunch what had it done.'"

This statement of the deceased was admitted over the objection of the appellant. In the meantime, after the shooting, appellant had gone back to the Hayes' residence, where he hid in the coal shed until Eugene Hayes made arrangements to transport him back to St. Louis. Hayes procured Alvie Thomas to take him in his automobile. The trip was made about midnight, and Eugene Hayes, who went along, returned with Thomas to Herculaneum the same night.

Appellant and Eugene Hayes were both arrested in St. Louis on the 1st of June and immediately confessed to their complicity in the homicide. Each made two written confessions, and these were read in evidence over the objections of appellant's counsel.

Appellant, testifying in his own behalf, admitted that Eugene Hayes had paid his expenses to Herculaneum from St. Louis on the afternoon of the homicide. He said, however, that Hayes had procured his presence at Herculaneum with the object of participating in some card games for gambling purposes. He admitted that he was present at conferences with his alleged accomplices, when plans were developed for inflicting punishment upon the deceased; that he himself had made threats against the deceased whom he did not know; and that he had gone to the home of the deceased, as charged by the state, but said that it was for the purpose of obtaining whisky from the deceased so that a charge might be lodged against him in retaliation.

He admitted be inveigled the deceased out of his house, upon the pretext that a prohibition enforcement officer wanted to see him and that when upon the street he purposely provoked a controversy with the deceased. He claimed, however, that, when he and the deceased became involved in a light, the deceased drew a revolver. In his effort to take the revolver away from the deceased he said it was accidentally discharged, and thereupon appellant ran away, carrying the revolver of deceased with him.

His testimony supported that of the state as to his having hidden in the coal shed at the Hayes home and his going to St. Louis in the automobile with Eugene Hayes and Alvie Thomas. He admitted that Eugene Hayes paid him $20 on the trip to St. Louis on account. He denied that he had voluntarily made confessions offered against him, but claimed that such confessions were obtained by coercion and force.

The errors assigned and urged here are all procedural. They involved the admission of testimony and the giving of instructions. These will be discussed in the course of the opinion.

Opinion.

1. The statement made by the deceased to witness Wagner was admitted in evidence, upon the theory that it was a part of the res gestæ. This statement was made about three minutes after the fatal shot was fired and was in answer to an inquiry made by Wagner. Such statement was not a part of the res gestæ, but a narrative of a past event, and therefore incompetent. State v Reeves et al. [Mo. Sup.) 195 S. W. 1027, loc. cit. 1030; State v. Kelleher, 201 Mo. 614, loc. cit. 633, 634, 635, 100 S. W. 470; State V. Hendricks, 172 Mo. 654, 73 S. W. 194; State v. Birks, 199 Mo. 263, loc. cit. 273, 274, 97 S. W. 578. The error, however, was entirely cured, as appellant's counsel not only developed the same facts on the cross-examination of Wagner, but thereafter made inquiries touching the same matter of other witnesses, and developed the same facts. Note the following questions and answers on cross-examination of witness Wagner:

"Q. In response to your question, what did he say? A. He said that it was a man from St. Louis that done it, and that he was a stranger.

"Q. Did he tell you how he knew him to be from St. Louis? A. No, sir; he didn't.

"Q. What else did he say as to how it occurred? A. He said it was a stranger what did it, a man from St. Louis. He says it was the Thomases and the Hayes bunch what had it done.

"Q. Is that all the explanation he made about it? A. That is all he made about it that know of."

Not satisfied with the developments in the first conversation, appellant's counsel made further inquiries, as follows:

"Q. You had two conversations with him? A. I heard him-he was talking there quite a little all during the night, and was right with him all night.

"Q. What did he say in the second conversation? A. Well, he said something about having applied for a government job."

Appellant abandoned his objection to the testimony and undertook to profit by a further development of the same facts as to what was said by the deceased, not only upon his first appearance at the home of witness Wagner, but thereafter through the night. State v. Burgess (Mo. Sup.) 193 S. W. 821; State v. Moore, 155 Mo. 204, 56 S. W. 883.

In the Moore Case, supra, the court said:

"When defendant elicited the same conversation by his own questions, he removed his objection thereto."

The criticism upon the Moore Case, by the St. Louis Court of Appeals in State v. Loving, 184 Mo. App. 82, 168 S. W. 339, was not...

To continue reading

Request your trial
30 cases
  • State v. Malone
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1931
    ......426; State v. Pollard, 139 Mo. 220; State v. Hancock, 148 Mo. 488; State v. Holloway, 161 Mo. 135; State v. Lewis, 118 Mo. 79; State v. Pohl, 170 Mo. 422; State v. Bryant, 102 Mo. 24; State v. Fraga, 199 Mo. 127; State v. Gartrell, 171 Mo. 489; State v. Webb, 205 S.W. 187; State v. Seward, 247 S.W. 150; State v. Webb, 205 S.W. 187. (d) Where a review of the entire record shows that no harm has resulted to appellant, the case will not be reversed though error was committed by the trial court. State v. Schmittzehe, 3 S. W. (2d) 235; State v. Allen, 246 S.W. 946; State v. Anglin, 222 ......
  • State v. Taylor
    • United States
    • United States State Supreme Court of Missouri
    • July 1, 1932
    ......They were a narrative of past events. State v. Rider, 90 Mo. 54, 1 S.W. 825; State v. Walker, 78 Mo. 380; State v. Kaiser, 124 Mo. 651, 28 S.W. 182; State v. Seward, 247 S.W. 150; 10 R.C.L. 974-976; Rogers v. State, 88 Ark. 451, 114 S.W. 156, 41 L.R.A. (N.S.) 857; State v. Hart, 274 S.W. 385; State v. Berks, 199 Mo. 263, 97 S.W. par. 78; State v. Hayes, 247 S.W. 165; State v. Martin, 28 S.W. 12. (9) The circuit court erred in refusing to grant appellant's ......
  • State v. Park
    • United States
    • United States State Supreme Court of Missouri
    • March 2, 1929
    ......714; Alden v. Feland, 10 B. Mon. (Ky.) 306: Sutherland v. Commonwealth, 208 Ky. 534: Barett v. Commonwealth, 268 S.W. 1084. The testimony of the officers being merely cumulative to Keeney's testimony, was not prejudicial, even if erroneously admitted. State v. Bruton, 253 Mo. 361; State v. Seward, 247 S.W. 150. Furthermore the defendant voluntarily took the stand and testified that he did have the harness about which the officers had testified, so he could not have been prejudiced by their testimony. State v. McWilliams, 267 Mo. 437; State v. Mitchell, 229 Mo. 683; State v. Burgess, 193 ......
  • State v. McGee
    • United States
    • United States State Supreme Court of Missouri
    • April 25, 1935
    ......Sec. 4020, R.S. 1929; State v. Copeland, 71 S.W. (2d) 746; State v. Preslar, 300 S.W. 687. (6) The court did not err in refusing a new trial because of alleged improper argument by the prosecuting attorney. State v. Copeland, 71 S.W. (2d) 746; State v. Eason, 18 S.W. (2d) 71; State v. Seward, 247 S.W. 154. (7) The court did not err in permitting Miss McElroy to testify that she knew the man outside of the bathroom was the appellant. State v. Merricks, 18 S.W. (2d) 23; State v. Stogsdill, 23 S.W. (2d) 22. (8) The court did not err in permitting Miss McElroy to state that Exhibit 7 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT