State v. Sexton

• Decision Date: 21 November 1898
• Citation: 147 Mo. 89,48 S.W. 452
• Parties: STATE v. SEXTON.
• Court: Missouri Supreme Court

48 S.W. 452

147 Mo. 89

STATE v. SEXTON.

Supreme Court of Missouri, Division No. 2.

November 21, 1898.

MURDER — EVIDENCE — SUFFICIENCY — ADMISSIBILITY — CONSTITUTIONAL LAW — INSTRUCTIONS — DYING DECLARATIONS — DIRECT EVIDENCE — RES GESTÆ.

1. Deceased died from a wound inflicted by a bullet of a size used in defendant's revolver, which he had with him on the day of the homicide. Deceased's dying declarations stated that defendant had shot him while attempting to rob him, and defendant had previously declared an intention to rob him. Held sufficient to sustain a conviction.

2. Evidence of a correspondence between defendant's shoes and tracks, found at the place of a murder, of which he is accused, is admissible, though the shoes were not fitted into the tracks until two or three days after the murder.

3. Where one accused of murder voluntarily surrendered his shoes to the sheriff, evidence of a correspondence between the shoes and tracks in the place where the murder occurred is not inadmissible, as being contrary to defendant's constitutional right not to appear as a witness against himself.

4. Where defendant is accused of being the one who committed murder while attempting to perpetrate a robbery, a refusal to charge on murder in the second degree is proper, in view of Rev. St. 1889, § 3459 (Laws 1885, p. 138), making it murder in the first degree to commit a homicide while attempting to perpetrate a robbery.

5. A question as to whether a sufficient basis has been laid for the admission of dying declarations is for the court.

6. Dying declarations giving the details of a murder and the name of the murderer are direct, and not circumstantial, evidence of the murder.

7. The declarations of several persons made when they heard the firing of a revolver, which caused a murder, are admissible as a part of the res gestæ, though they were in a house at some distance from the place of the murder.

Appeal from circuit court, Mercer county; P. C. Stepp, Judge.

Ira Sexton was convicted of murder, and he appeals. Affirmed.

Orton & Orton, for appellant. The Attorney General and Sam. B. Jeffries, for the State.

SHERWOOD, J.

Ira Sexton, 23 years old, has been convicted of murder in the first degree, the charge being that Nathan Stark was killed by him with a pistol. Luvilla Anderson was also charged in the same indictment with aiding and abetting, etc., in the murder. She was the sister-in-law of defendant, who had been married about five days, and was, at the time of the homicide, living at Newt, or "Buff," Melton's, who was a brother of Luvilla Anderson. Buff Melton lived a quarter of a mile from where Nathan Stark lived, who was a bachelor, 36 years old, and lived by himself on a small farm, in a house southwest of where Buff Melton lived. Late in the afternoon of October 28, 1897, Cooksey drove up in a buggy from Mercer, to Buff Melton's house. Mercer was a town or station on the Rock Island Railroad, in the county, some three or four miles distant. On arriving at the house, about sundown, he met Luvilla Anderson at the west door of the house. She was the only one in the house at the time, but shortly thereafter there came in Josie Melton, Buff's wife, Hattie Sexton, defendant's wife, defendant, Robert Melton, and Buff Melton; and Cooksey was introduced to them. Cooksey saw in one of the four rooms of the house, known as the "southwest room," a clock on a mantelpiece, and beside the clock, on the right-hand side of the clock, was lying a revolver. Cooksey went out with Buff Melton to see about his horse, and, having watered him, and taken the harness off, they returned to the house. About 25 or 30 minutes before the occurrence which caused the present prosecution, defendant left the house, passing through the room in which the revolver lay, saying he was going over to see his father, who lived about a mile and a half distant. On returning from attending to his horse, Cooksey, Buff Melton, and the rest, except Luvilla Anderson, sat down to the supper table. While sitting there, and in about 10 or 15 minutes after defendant's departure, Luvilla Anderson came to the door of the kitchen where supper was being eaten, and asked Hattie Sexton where her cloak was, or something similar to that, and she says, "You know what I mean." Proceeding, the witness Cooksey says: "We ate some few minutes, when we heard something, which was a shot, and then after that we heard screams, which I took to be an owl hallooing. As I heard the first noise, it sounded like an owl. I says: `Listen; that sounds like an owl.' I listened a second. I thought it was some one hallooing `Fire!' When it come up again, and Robert Melton, — that was Robert Melton that was sitting next to the east window in that same room, — he says: `No; some one shot.' I says: `No; that is it; some one is hurt.' I heard another yell. We all jumped up, as far as I know. Buff and I, anyway, started into the other room; that is, the room right west of the kitchen. The kitchen was east of the room I first went into, where we eat. Q. That is, the one you designated as the southwest room; you went into the room you designated as the southwest room? A. Yes, sir; as I came into the house I had a rifle with me, and I took the load out of it, and laid it either on the bed or under the bed, I don't know which. As I put the rifle on the bed when I went into the room, I grabbed up the rifle. I said to some one, `Get that revolver,' that I had noticed there. We all ran out of the house. Some one spoke up, and said it wasn't there. I don't know who it was. Some one says, `He has got It.' Q. Well, when you went out there, don't tell what you said, but what you done. A. Well, I went into the room, and got my rifle that was either on the bed or under the bed, and I put a load into it as I went out at the door; and Buff Melton he got a shotgun, Buff Melton did, and I had a rifle. We got as far as the buggy, and the loud yelling and hallooing had ceased at that time. Then we crawled through a wire fence, and went across the stock field, The boys started rather fast. I says: `Hold on!' Q. In what direction, or do you remember? A. That would be southwest, I believe. Q. Over what kind of ground? A. Stock field. Q. How about with reference to it being up or bottom land? A. It was up a hill; up a little raise; I don't know just how much; anyhow, there was a little draw, I believe. It was after night. We met Luvilla Anderson coming from the direction we were going in. We were going, as near as I can tell, in a southwest direction, and we met her coming from the southwest. I saw her, and hallooed, `Hello!' or something to that effect. We all went then across to Cravens'. Q. Now, who all was there with you at that time? A. Buff and Robert Melton and Luvilla Anderson and myself; and, when we got there, I wasn't acquainted with any one. I had saw Mr. Stark as I went past his barn that evening, and he was in the room there, lying on the bed."

There were several families who lived in the neighborhood, and who heard the cries mentioned by the witness Cooksey, and they immediately went towards the scene of the cries; among them, William Cravens, who lived some 300 to 350 yards from Nathaniel Stark's house. He states: "I got up; went out; heard somebody. At first I didn't see nothing when I went out, when I heard him. I stood out at the gate ten feet from the door, I expect, and heard some one running and hallooing, taking on just like they were out of breath. He hallooed, `Help me and get to me!' I went and met him; it was Stark. Well, I met Stark out from my house, between forty and sixty yards west of my house. I heard him. What called me out there, I heard him crying, hallooing for help. I ran out and met him. He was hallooing for me; calling me by name, — Bill, — to get to him and help him. I met him; asked him what was the matter. He said Ira Sexton had shot him, stopped him up there on the road, and tried to rob him, and they got into a tussle. He got away from him, and Sexton shot him as he ran, and followed him a piece, and turned back. And then be ran on towards my house, hallooing for me to get to him and help him. I went to him, and began to inquire into it. He told me Sexton had shot him. He says, `He has killed me, Bill.' I says, `You are scared, Nate; you are not hurt as bad as you think you are.' He says, `Oh! he has killed me; he has done the work for me.' I took him on to the house. He said he wanted to get to my place, where he could tell it, and who done it. Q. Tell it; what? A. That Ira Sexton had shot and killed him. He says, `He has killed me.' Well, Sexton met him there, and come out of the brush. He says he mistrusted something as soon as he saw him. Well, he said Sexton told him that `Newton Melton and the boys and Luvilla is down to your house. You don't want to go any further. They are down there, and going to kill you, and take your money away from you.' `Oh,' he says, `that can't be so, Ira, we have always been good friends; I don't believe it.' `Yes, they are,' he says; `if you go home, they will kill you and rob you.' He says, `We have always been on good terms; I can't believe it;' said, `Loan me your revolver; I have accommodated you, loaned you horses and money, and accommodated you, and loan me your gun.' Sexton says, `I haven't got no revolver with me; come out here with me, and I will fix you for them,' — or something to that effect. He says, `No; I will go on.' He says: `I spoke to the horses. They stepped maybe a step or two, and Sexton just ran out, and shoved a revolver against me, and says, "Your money is what I want, damn you;" shoved it at me.' `I haven't got it,' he says, and shoved it in his face. `We had a tussle, and I fell off the wagon; and, as I ran from him, he tore after me, and shot me. I was eight or ten steps from him, I think, Bill, when he shot me —' Q. Tell the jury what he said Sexton done, if anything, after he shot him. A. He...