State v. Smith

• Decision Date: 07 March 1921
• Docket Number: No. 22554.,22554.
• Citation: 228 S.W. 1057
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

228 S.W. 1057

STATE v. SMITH.

No. 22554.

Supreme Court of Missouri, Division No. 2.

March 7, 1921.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Edward Smith was convicted of murder in the second degree, and he appeals. Affirmed.

B. H. Boyer and Jasper N. Burks, both of Farmington, for appellant.

Frank W. McAllister, Atty. Gen., and Henry B. Hunt, of Jefferson City, for the State.

WHITE, C.

In the circuit court of St. Francois county the appellant, Edward Smith, was convicted of murder in the second degree. He was charged with killing Raymond Albaugh on the 14th day of September, 1919, at Leadwood, a mining town in St. Francois county.

Smith at that time lived in Leadwood, and Raymond Albaugh lived about a quarter of a mile distant from the Smith residence. John Austin Albaugh, a brother of Raymond, lived several miles away, near Farmington. Prior to the homicide Raymond Albaugh and Smith, and their wives, had been friends and often visited each other. The 14th of September, 1919, was Sunday, and on that day John Austin Albaugh and his wife and two children were visitors at the home of Raymond Albaugh. Raymond Albaugh also had two children. The Smiths were invited to eat dinner there at noon on that day. Mrs. Smith had dinner there, but Smith did not go. That afternoon all the Albaughs and the Smiths were together, and at different times were at the Raymond Albaugh home and at the Smith home. At one time the Albaugh men went to what is termed "Hunkie town," where, the evidence indicates, they got beer. Late in the afternoon they all were at the Smith home and some of them took an automobile ride. Later they were all at the Raymond Albaugh home.

The three women and the Albaugh children drove in a car to the Smith home, while the three men walked. All arrived at the Smith home about 6 o'clock. It was then proposed that they have some music and a dance. They proceeded to entertain themselves with the music and dancing until about 10 or 11 o'clock at night. Then Raymond Albaugh. and Smith got into a fight. According to Mrs. John Austin Albaugh, Smith resented some remarks which Raymond Albaugh made to his own wife; Smith deeming them abusive.

The testimony of the Albaugh women and of John Austin Albaugh tended to show the subsequent occurrences as follows: The fight was proceeding between Smith and Raymond Albaugh when John Austin Albaugh, who was in another room, came in and participated. During this fight Mrs. Smith attempted to interfere and was knocked down by her husband. At one time Smith got hold of his shotgun. The gun was taken from him by Raymond's wife, who hid it somewhere, probably in a closet, and in a short time the Albaughs got out on the porch and started away.

The Smith house faced east and was 25 feet from the front gate. The yard was surrounded by a picket fence. Just to the north of the house was a vacant lot 200 feet wide. Raymond lived west, or in a direction back of the Smith house. The Albaughs got out of the front gate and walked north along the fence, turned the corner, and started westward across the vacant lot north of the Smith premises. By the time they had reached the front gate Smith came running out with his shotgun and at a distance of a few feet followed them along the front fence and across the vacant lot. The Albaughs kept backing away; their wives were in front of them pushing them backward, endeavoring to get them away, and urging Smith not to shoot. It seems that all the men were swearing and threatening; Smith threatened to kill both the Albaughs. After this retreat of the Albaughs had continued a distance, measured by the witnesses to be about 120 feet westward from the corner of Smith's lot, Raymond Albaugh pushed his wife to one side and Smith fired his shotgun into Albaugh's body from a distance of 7 or 8 feet, killing him almost instantly. His body was lying at that point when other parties arrived.

In defense Smith and his wife were sworn. Their testimony was substantially the same as to what happened during the day. It was also stated by Mrs. Smith that, several days previous to the killing, Mrs. Raymond Albaugh had made a statement to Mrs. Smith to the effect that Raymond was jealous of Ed Smith and would kill him if he could — a statement repeated by Mrs. Smith to her husband. The effect of the defendant's evidence was to put the blame of the fuss in the Smith home upon the Albaughs. It tended to show that the Albaughs were swearing and threatening, and had drawn knives; that one of the Albaughs knocked Mrs. Smith down; that when they finally went away Smith took his gun and went on the porch and sat there while the Albaughs were going off; that after going some distance the Albaugh men came back and Raymond Albaugh rushed at Smith with a knife, when Smith fired the fatal shot. The Smiths attempted to account for the place where Albaugh's body was found by saying that after he was shot his wife and brother carried him back a distance of 25 or 30 yards and laid him down.

There was evidence that Smith had some homemade wine at home which they were drinking during the progress of the dance. The killing occurred between 10 and 11 o'clock at night; the testimony shows that the moon was shining at the time.

The jury returned a verdict of guilty, assessing the punishment of defendant at 15 years' imprisonment in the state penitentiary.

I. Error is assigned by appellant to the action of the court in overruling his application for change of venue. The application was on the ground that the inhabitants of the county of St. Francois were so prejudiced against him that he could not have a fair and impartial trial there. Sixteen witnesses were sworn on behalf of defendant to testify to the condition of sentiment in the county. Each witness was asked by defendant's counsel if he had heard discussion of the homicide and if that discussion was favorable or unfavorable to the defendant. The state objected to the question in each case because it called for a conclusion of the witness as to what would be unfavorable. Some of the witnesses had not heard the matter discussed, or could not say that they had heard any unfavorable comments. A majority of them, however, testified that the comment they heard in relation to it was unfavorable to the defendant. On cross-examination most of them could not remember any particular thing they had heard said with relation to the matter or any particular person who had made remarks. Four or five of the witnesses testified to general statements they had heard, expressing opinions as to what punishment would be meted out to Smith. None of such statements indicated any ill will against Smith, unless it might be inferred from the forecasts as to what would result on his trial. In every instance only a very small percentage of the persons living in any particular community where the conversations were heard had expressed any opinion.

The state introduced almost an equal number of witnesses who seemed to have as favorable opportunities to hear discussious of the matter as witnesses for the defendant. All of them testified that although they had met many people, were acquainted throughout different parts of the county, that they had not heard the matter discussed. On this evidence the court overruled the motion.

The matter of granting or refusing a change of venue is within the discretion of the trial court and will not be interfered with by this court unless such discretion is abused. State v. Shari), 233 Mo. 269, loc. cit. 283, 135 S. W. 488; State v. Barrington, 198 Mo. loc. cit. 85, 86, 95 S. W. 235. We cannot find that the discretion of the trial court was abused in this instance. It was warranted in holding that the defendant could have a fair and impartial trial.

II. The defendant, before the trial, filed a motion to quash the information on the grounds, among others: (a) That the testimony taken at his preliminary examination was not taken and signed, as required by section 3825, R. S. 1919; (b) that it was not certified nor delivered with the commitment as required boy section 3834, R. S. 1919.

The last-mentioned section provides that all examinations and recognizances taken at the preliminary hearing shall be certified by the magistrate taking the same, and delivered to the clerk of the court in which the offense is cognizable, on or before the first day of the next term thereof, except that, where the person is committed to jail, the examination of himself and of the witnesses for or against him, duly certified, shall accompany the warrant of commitment and be delivered therewith to the jailer. Evidence was taken upon this motion to quash, and it was shown that counsel for the state and for the defendant, at the preliminary hearing, made an agreement as follows:

"It is agreed by and between the state and the defendant by his attorney, and the court, that in the absence of the official stenographer, Miss Esther Rudloff shall take the testimony of this case, the original of which shall be delivered to the attorney for the state, and an exact carbon thereof delivered to Mr. Boyer, attorney for defendant."

The oral evidence showed that the transcript of the evidence taken at the preliminary was not signed by the witnesses, but that a copy of it was filed with the circuit clerk; that no copy of the evidence was delivered to the sheriff with the commitment, but afterwards a copy was delivered to the sheriff by the attorney for appellant and by the sheriff delivered to the defendant. None of those copies were certified by the justice of the peace who conducted the examination. The examination in all other respects was regular. Accused, with his counsel, was present during the preliminary trial, and all the witnesses who testified were duly sworn by the magistrate.

That a defendant charged with a crime, entitled to a preliminary examination, may waive such examination, has been repeatedly held....