State v. Shawley

• Citation: 67 S.W.2d 74
• Decision Date: 20 December 1933
• Docket Number: No. 32840.,32840.
• Parties: THE STATE v. W.J. SHAWLEY, Appellant.
• Court: United States State Supreme Court of Missouri

67 S.W.2d 74

THE STATE v. W.J. SHAWLEY, Appellant.

No. 32840.

Supreme Court of Missouri.

Division Two, December 20, 1933.

Appeal from Scotland Circuit Court. — Hon. Walter A. Higbee, Judge.

AFFIRMED.

Jayne & Jayne for appellant.

Roy McKittrick, Attorney-General, Frank W. Hayes, Assistant Attorney-General, for respondent.

(1) The following general assignments of error numbered 12, 13 and 25 of defendant's motion for new trial are insufficient. Sec. 3735, R.S. 1929; State v. Standifer, 289 S.W. 856; State v. Early, 49 S.W. (2d) 1060; State v. Francis, 52 S.W. (2d) 552. (2) The court did not err in refusing defendant a new trial because of the selection and action of the grand jury which returned the indictment. Secs. 3514, 3515, R.S. 1929; State v. Reed, 162 Mo. 312; State v. Hart, 66 Mo. 208; State v. Griffin, 87 Mo. 608; State v. Williams, 136 Mo. 307; State v. Clifton, 73 Mo. 430; State v. Cunningham, 130 Mo. 507; State v. Sartino, 216 Mo. 408; State v. Miller, 191 Mo. 587; State v. Taylor, 171 Mo. 465; State v. Faulkner, 185 Mo. 673; State v. Grady, 84 Mo. 220. (3) The court did not err in permitting witness Collins to testify, though his name was not indorsed upon the indictment. Sec. 3544, R.S. 1929; State v. Nettles, 153 Mo. 464; State v. Sheeler, 300 S.W. 318; State v. Wilson, 12 S.W. (2d) 445. (4) The court did not err in admitting in evidence the letter being read by deceased at the time of the murder. 16 C.J., pp. 617, 619. (5) The court did not err in admitting in evidence the bullet causing deceased's death. (6) The court did not err in admitting the testimony of Seth Waird. State v. Majors, 44 S.W. (2d) 166. (7) The court did not err in refusing to permit the defendant to read the letters between deceased and Pauline Shawley in the order as they were written. (8) The court did not err in permitting witness Emery Baxter to testify as to statement made by the defendant to deceased and others six months prior to the murder. State v. Grant, 79 Mo. 113; State v. Adams, 76 Mo. 355; State v. Glahn, 97 Mo. 689. (9) The court did not err in overruling defendant's demurrer at the close of all the evidence. State v. Harris, 22 S.W. (2d) 802; State v. Henke, 285 S.W. 392; State v. Smith, 44 S.W. (2d) 45. (10) Assignments 15 and 16 in appellant's motion alleging misconduct of the prosecuting attorney in the argument are insufficient. State v. Tippett, 296 S.W. 132; State v. Neal, 300 S.W. 1073; State v. Blackmore, 38 S.W. (2d) 32; State v. Godos, 39 S.W. (2d) 784; State v. Beaghler, 18 S.W. (2d) 423. (11) The court did not err in refusing appellant a new trial on the ground of separation and misconduct of the jury. State v. Gregory, 158 Mo. 138; State v. Shipley, 171 Mo. 544; State v. Trull, 169 N.C. 363, 85 S.E. 133; Commonwealth v. Manfredi, 162 Pa. 144, 29 Atl. 404; Wright v. State, 35 Ark. 639; People v. Anthony, 146 Cal. 124; State v. Spaugh, 200 Mo. 571; State v. Howell, 117 Mo. 307; State v. Hannebrink, 44 S.W. (2d) 142. (12) The court did not err in refusing a new trial on the ground that the verdict of the jury resulted from coercion. State v. Stogsdill, 23 S.W. (2d) 22; State v. Rose, 142 Mo. 418. (13) Under Section 3982, Revised Statutes 1929, the killing of the deceased by the appellant was murder in the first degree.

ELLISON, P.J.

The defendant was charged by indictment with murder in the first degree, and tried in the Scotland County Circuit Court. On the first trial the jury disagreed; on the second he was convicted and his punishment assessed by the jury at life imprisonment. He appeals but has filed no brief. His motion for new trial contains twenty-six assignments of error. Such of these as merit consideration will be discussed in the course of the opinion. One challenges the sufficiency of the evidence. As the State's proof was wholly circumstantial, and rests largely on "bloodhound" testimony and the testimony of a ballistics expert, we shall review the facts at some length.

The homicide was committed upon Barnett Baxter, a man thirty-three years old, who resided in Chicago where he was employed in some kind of railroad work. His mother and sister lived on a farm eight miles east of Downing, in Scotland County, Missouri. He had come there to visit them early in August, 1930. About nine o'clock in the evening of the 18th of that month he was seated in the kitchen at the supper table by his mother's side and with an uncle, W.L. Baxter, at the end of the table. His sister Minerva was close by in an adjoining bedroom. The meal was over. His back was close to the south wall of the room and he was facing the open kitchen door reading by the light of two lamps a letter he had written his mother and father two years before. A rifle report sounded outside. The bullet struck Baxter in the right eye, penetrating deep into his brain and killed him instantly.

The sister attempted to telephone the defendant Shawley's family who lived a little over a half mile away and were the nearest neighbors on that telephone line. The telephone was "dead" although it had been used two hours earlier. Later in the evening it was ascertained the wire had been cut. Miss Baxter then hallooed to the closest neighbors, the Charles Smith family, who were on a different telephone line. Mr. Smith came over at once and immediately the news was spread about the neighborhood and a doctor and the sheriff were called. After the lapse of nearly an hour the defendant Shawley and his daughter Pauline appeared, they having been called from the Smith home; but they did not come until some considerable time after other neighbors living farther away had got there.

When the sheriff arrived he found quite a crowd at the Baxter home. He viewed the remains and proceeded to look over the premises. Minerva Baxter, sister of the deceased, had made a pencil mark on the wall at the place where his head was when the bullet struck him. Also there was a new, small, round hole in the screen door of the kitchen which the family said (and testified) had not been there before. The officers assumed it had been made by the bullet. Subsequent experiments proved a bullet of the caliber used would make a hole of that size and character in similar screen wire. A line sighted through the hole in the screen door to the mark on the wall indicated the direction from which the bullet had come. The door was nearly two feet above the level ground outside and there was a small porch or platform three to four feet wide about a foot beneath the door sill. The bullet hole in the door came slightly more than shoulder high on the sheriff while standing on the platform (he was five feet ten inches tall) which led the officers to conclude the shot had been fired by a person standing on the porch — although there was a mounded cave some five or six feet back from the porch, in the same direction, which would have furnished sufficient elevation for the assassin to have shot from there. The sheriff did not examine the ground around the cave. It was decided to telephone a man at Agency, Iowa, for bloodhounds, and the crowd were requested to keep away from the side of the house whence the shot had been fired.

The kitchen, where the deceased was when shot, was at the back or north side of the house, and the outbuildings were in the rear of that. The house faced south on a road running east and west, and about one-fourth mile west along the road a lane led off south for a little over one-fourth mile to the defendant Shawley's home. Still further west along the east and west road about one-fourth mile, another road led off to the north for a distance of about half a mile where it turned east for a short distance and thence went north again. Where this road continued from that point the State did not show, but the defendant developed on cross-examination that it ran northerly in the general direction of the home of a Conoway family, who lived ten or more miles northwest, near the corner of Scotland County.

The bloodhound keeper, Mr. Rodibaugh, arrived at the Baxter home about two or three o'clock in the morning with two hounds. There is no evidence as to their breeding or pedigree, but in his testimony he called them "bloodhounds" and said they were trained for man-trailing. After a preliminary conference with the sheriff lasting only about five minutes, one of the two dogs was put on the trail at the kitchen door and platform by Mr. Rodibaugh, the houndmaster, and the sheriff. The dog went northwest to the barn; thence to a fence at the corner of the barn lot, where mud was found on the fence brace; thence angling back southwest through a pasture to the east and west road above mentioned. From there the dog followed the road west, passing the Shawley lane without entering thereinto, and continued to the road which went north; thence along the north road to where it turned east, and along the east road for about 100 or 200 yards to a place where the tracks of an automobile were found extending across the road indicating it had moved forward and backward once or twice in turning around. Here the trail ended about one and one-half miles north of the defendant Shawley's home. The two men thereupon returned to the Baxter home, and the houndmaster alone put the other dog on the trail starting at the kitchen door, following the same course, and winding up at the car tracks in the road.

About midnight after the sheriff had telephoned for the blood hounds but before they had arrived, he, Deputy Sheriff John Lough and a neighbor, Mr. Wes Jackson, were sitting in the sheriff's automobile at the Baxter premises, discussing the homicide. They were joined by the defendant Shawley. The three other men were questioning Shawley; and according to the sheriff's testimony Shawley said they were "asking too damn many questions" and got out of the car and got into his own car. Mr. Lough testified that the defendant said they "were asking too damned many questions and were making him...