State v. Smith

• Decision Date: 04 June 1920
• Docket Number: No. 21945.,21945.
• Citation: 222 S.W. 455
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

222 S.W. 455

STATE v. SMITH.

No. 21945.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Randle Smith was convicted of murder in the first degree, and he appeals. Reversed and remanded.

The appeal in this case is from a conviction of murder in the first degree. Defendant was charged with having murdered one Alfred Hutsell on the 4th day of July, 1919, in Wright county, Mo., by administering strychnine to him. The defendant, Randle Smith, was a farmer about 35 years of age, living near Astoria, in the northeast part of Wright county, Mo. He was married and had two small children. The deceased, Alfred Hutsell, was unmarried, 21 years of age, and resided about a mile distant from the residence of the defendant. Some time prior to the date of the alleged homicide defendant was indicted for felonious assault upon Hutsell, and at the same time Hutsell sued him for $10,000 damage on account of the injuries received. Hutsell went to Kansas City, where he had X-ray pictures taken of his head, which was alleged to have been injured in the assault, for the purpose of using the pictures in his civil suit and in the criminal prosecution. Both of those cases were pending July 4, 1919, on which date a picnic was held at Astoria.

The state introduced evidence to show that defendant, Hutsell, and one Ernest Rayborn, a young man 25 years of age, attended this picnic. Some time during the forenoon the defendant requested Rayborn, who was a friend of his, to get Hutsell drunk and find out the result of the X-ray examination in Kansas City. Rayborn was not averse to undertaking the enterprise, understanding, perhaps, that he would be required to drink some too. Accordingly, Smith drove off and returned in about 20 minutes with his coat on. Rayborn was in his shirt sleeves. The two went from the picnic ground down to a ford in a creek near by. Smith exhibited two Tanlac bottles full of liquid; one was paler than the other, and Rayborn suggested that there were two kinds of whisky. Smith replied, no, he had weakened one. Rayborn said he hardly ever drank weakened whisky. They hid the bottles in a pile of driftwood and returned to the picnic ground. Rayborn soon after found Hutsell, went with him to the driftwood, took out the bottle which exhibited color, and the two drank its contents. They returned to the picnic ground, loitered around for an hour and a half, and then went back to the drift for the purpose of drinking from the other bottle. They had been observed, however, by one Jim Wilhite, who followed them and came up as they drew the whisky from its hiding place. Rayborn tasted it and spat it out, saying it was very bitter; Hutsell and Wilhite, each in turn, did the same. Rayborn put the bottle back in the drift, hunted up Smith, and asked him what was the matter with the whisky. Smith explained that there was some caked Tanlac in the bottle which he could not get out and he just put the whisky in on it; he said, "There is nothing in it to hurt you." After loitering around the grounds for another hour and a half Rayborn and Hutsell went back to the drift; each took a drink from the bottle and returned to the picnic ground. In a short while Rayborn became quite sick and sent for Smith, who manifested great reluctance to come but finally came. A conversation ensued between Rayborn and Smith in which Rayborn asked Smith what he poisoned him for, saying that Smith had put poison in the whisky that he gave him that morning. Smith denied giving him poisoned whisky.

Antidotes of grease, eggs, cream, and sweet milk were administered to Rayborn and he recovered, although he was confined to his room for about two weeks. Hutsell died a few minutes after the two returned from taking the last dram. Physicians who attended Rayborn and who were told of the symptoms shown by Hutsell said the symptoms all indicated strychnine poisoning. The stomach of Hutsell was removed from his body the next day by a physician and delivered to the prosecuting attorney, C. H. Jackson, who swore that he afterwards took it to Springfield and delivered it to a chemist, Dr. Atherton, together with the bottle containing the remainder of the pale liquor from which the last drinks had been taken. Dr. Atherton testified that a chemical analysis showed a large quantity of strychnine in the bottle; a quantity so great that very little of the liquor would be sufficient to produce death. He also found traces of strychnine in the stomach which was handed to him by the prosecuting attorney. Wilhite testified that he was made sick by the taste which he took of the liquor.

The defendant was arrested the afternoon of Hutsell's death. He was kept in custody that night and the next morning was taken to Astoria, where an inquest was held. There he was sworn and stated that he had not given Rayborn any whisky at any time and repeated the statement later in the afternoon of the same day at Manes, a short distance from Astoria, where his preliminary hearing was held before_ a justice of the peace.

The state showed that some threats had been made by the defendant against the deceased a year or more before the picnic. The defendant testified that he had been advised by his attorney to have some friend talk to Hutsell and learn the result of his X-ray examination in Kansas City, and that on one occasion before the picnic he requested Rayborn, who always had been his friend, to find out what he could from Hutsell in regard to the matter, and Rayborn relied that he might if he had a quart of whisky. Defendant soon afterwards purchased a quart of whisky in Mountain Grove from a man who was designated as a bootlegger. Defendant took the quart of whisky to his barn, filled the two Tanlac bottles, also another bottle which he took to his house leaving the Tanlac bottles in the barn; he said he never saw them again until the 4th of July, when he had a talk with Rayborn, got the whisky, and delivered it to Rayborn in the manner above described. He testified that he had never owned any strychnine, had never bought any, had never been out of Wright county and Texas county except on one occasion when he made a short visit to relatives in Arkansas. The defendant put his character in issue and offered a number of witnesses to testify that he had a good reputation for honesty, truth, and veracity, and as a law-abiding citizen. The state offered several witnesses who testified that the defendant had a bad reputation in those respects. Other facts shown in the evidence will be mentioned in considering the errors assigned by the defendant.

A. M. Curtis, J. W. Jackson, and Geo. C. Murrell, all of Hartville, for appellant.

Frank W. McAllister, Atty. Gen. (Don C. Carter, of Sturgeon, of counsel), for the State.

WHITE, C. (after stating the facts as above).

I. The defendant filed a motion to quash the information on the ground that he had not been accorded a proper preliminary hearing. The trial court took evidence upon the motion.

On the 5th day of July, after the inquest was held at Astoria, the defendant testified that he was asked by the prosecuting attorney if he were ready for his preliminary trial and he said he was not; that he wanted his attorney, Mr. Curtis. Mr. Curtis was in Colorado. Then he asked for Mr. J. W. Jackson, attorney, and Mr. Jackson was at Hartville. The prosecuting attorney advised him that it was not necessary to have an attorney; that he could go ahead and have his preliminary anyway. He made no further objection.

The prosecuting attorney, C. H. Jackson, testified that after the coroner's inquest was over the defendant came to him and told him he wanted his preliminary examination that day. The prosecutor told him he could have it that afternoon if he could get the state's witnesses. The preliminary proceed ed without objection from the defendant until nearly all the witnesses for the state were examined; the, defendant then said that he saw where he had made his mistake; that he ought to have had a lawyer. Both the justice and the prosecuting attorney stated that the defendant was told several times during the progress of the hearing that he could have any witnesses he desired and they would stop the proceedings until he could get them. The defendant himself did not claim to have made any further objection to proceeding with the bearing. Upon this evidence the trial court overruled the motion.

The defendant did not complain that he was not advised fully of his rights in the matter—his right to counsel; his right to have witnesses—nor did he complain of a lack of opportunity to procure witnesses. The finding of the trial court upon the evidence thus produced that the defendant was accorded a fair preliminary hearing was warranted, and the requirements of section 5056, as amended by the Acts of 1913, p. 225, and other sections relating to the preliminary hearing, were fully met.

II. The state offered to prove the statements made by the defendant at the coronor's inquest and also at the preliminary hearing. The trial court sent the jury out and took evidence for the purpose of ascertaining under what circumstances the statements were made, then excluded the statement made at the preliminary hearing, but permitted the state's witnesses to testify to what defendant said at the coroner's inquest.

The facts developed in determining the competency of the evidence showed that the defendant was arrested late in the afternoon of the day of the death of Hutsell, charged with murder. He was put in jail that night and the next morning taken to the coroner's inquest at Astoria, the exact distance from Hartville not given. At the inquest, during the progress of the investigation, the justice of the peace, U. S. Wade, who conducted the inquest, went to the defendant and asked him if he desired to testify. What was said by the defendant in answer to that is somewhat in dispute. The defendant swore...