State v. Snow

Decision Date18 March 1922
Docket NumberNo. 23028.,23028.
PartiesSTATE v. SNOW.
CourtMissouri Supreme Court

Appeal from Circuit Court, Clinton County; A. D. Burns, Judge.

O. B. Snow was convicted of first degree murder, and he appeals. Reversed and remanded.

Barney E. Reilly and Phil Slattery, both of St. Joseph (W. G. Lynch, of Kansas City, of counsel), for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Special Asst. Atty. Gen., for the State.

DAVID E. BLAIR, Judge.

Defendant, appellant herein, was tried for first degree murder, was convicted of the same, was sentenced on the verdict to life imprisonment in the penitentiary, and has appealed.

On Tuesday, October 26, 1920, one Dick Wamsley, aged about 20 years old, a resident of the city of Cameron, was found dead in a house owned and sometimes occupied by the defendant and located in that city. His skull was fractured, just above the left ear from a blow from some blunt instrument, and other wounds were found on the body. His body, fully clothed, was discovered lying on a tarpaulin spread over a blanket upon a bed and springs. Wamsley's Ford automobile was found in the street adjacent to defendant's house. Considerable blood was found on the floor of the rear seat, and some of it had flowed down over the running board of the car. There were also blood stains on the front lamps. There was no evidence of any struggle in the house. The presence of a pool of blood on the tarpaulin under deceased's head, some of which had leaked through onto the floor, tended to show that he was still alive when he was placed on the bed.

One George Sweat testified that he was watching defendant's house from about midnight of Friday, October 22d, in the hope of securing evidence against defendant for the purpose of prosecuting him for selling liquor, and that about 2 o'clock in the morning he saw defendant drive up to his house in an automobile and carry some one into the house, and shortly afterwards saw him come out, and then heard defendant say, "You son of a bitch, you will not talk now." Deceased's car remained standing in the street from that time until the body was discovered on Tuesday.

The last time deceased was seen alive was late on Friday night October 22d. He was then in the company of the defendant. Defendant and the deceased had been friends for some time, and were together frequently. No trouble between them is shown to have existed. Defendant, and probably deceased, had been drinking that night. Deceased had been at defendant's house earlier in the evening, and drove away after 9 o'clock with the defendant and one Wiss. Deceased and defendant were again seen together about 10 o'clock by one Coon, who had been previously with them, and left them when they started to drive out to the Harris schoolhouse, where a box supper was being given. Defendant and some other men in the car arrived there just as the teacher was locking up the schoolhouse. She then entered an automobile and rode into Cameron, and the automobile in which defendant was riding with the other men followed. She testified that she thought defendant got out of the automobile in front of the bank in Cameron.

It does not appear necessary to set out the testimony as to defendant's whereabouts at various times during the night. At about 4:45 or 5 o'clock Saturday morning defendant was seen at Cameron Junction where he boarded a train at 5:15 a. m. for St. Joseph. He had first bought a ticket to Kansas City, and later changed it for one to St. Joseph.

One L. B. Snider, an uncle of defendant by marriage, testified that he met defendant in Hamilton on Saturday afternoon, October 23d, about 3 or 4 o'clock. Hamilton is in Caldwell county east of Clinton, while St. Joseph is west of Clinton. Defendant told Snider he had come from St. Joe on the morning train. Defendant went home with Snider Saturday night, and remained until Tuesday evening, when he and Snider went together to Cameron. Defendant appeared nervous while at Snider's home, and when they neared Cameron he did not want to get off the train, and when asked by Snider for the reason, said, "Just the way things were," and that he was afraid they would lock him up. Riding in a taxi cab towards defendant's house the driver told defendant and Snider of the finding of Wamsley's dead body in defendant's house, and then asked defendant if he still wanted to go on down. Defendant said, "No." They then turned around and went up town to the restaurant. There defendant and Snider procured a newspaper, and read an account of Wamsley's death. Defendant then asked Snider to swear that he and his two boys took him out to Cameron on Friday night, as this was the only way he could get out of it. After his arrest defendant was taken to his home, and expressed an unwillingness to enter the room where the body was found until he was assured that it had been removed. Snider was later charged as an accomplice of defendant, and was placed in a cell in the county jail adjoining the one in which defendant was confined. They were the only prisoners in the jail at the time. They were thereafter taken to the sheriff's office, and during their absence a dictagraph was installed in each of the cells by one O'Leary, a detective, and these instruments were connected by wires leading to two receivers in the courthouse nearby, where O'Leary and the sheriff, Clarence David, listened to conversations between defendant and Snider during the night after they were returned to their cells. Among other things, they heard defendant tell Snider that he knew he (Snider) had nothing to do with the killing, and advised him to bring suit for damages against the officers. Later, they heard defendant tell Snider that be killed deceased with a poker. They also heard defendant tell Snider that he had a knife concealed in his cell which he intended to use on the sheriff. The next day a knife was found in defendant's cell.

Snider was probably used as a decoy, or as such person is sometimes called in the parlance of the under world, a "stool pigeon." At any rate, he testified for the state at the trial, and corroborated what O'Leary and sheriff David testified to having heard over the dictagraph as to defendant killing deceased with a poker. Defendant did not testify as a witness.

We have attempted to state the facts as briefly as possible. No question is raised as to the sufficiency of the evidence to submit the case to a jury as to the criminal responsibility of defendant for the homicide. Appellant contends there is not sufficient proof to entitle the state to instructions on first and second degree murder. Certain other facts will appear in discussing the assignments of error.

I. The general rule is that a presumption of murder in the second degree arises from an intentional killing of a human being by another where a deadly weapon is used by him at a vital part of the body, absent proof of other facts tending to show deliberation to raise such killing to first degree murder, or to show want of premeditation and malice to reduce the killing to manslaughter, or to show that such killing was excusable or justifiable.

In State v. Kyles, 247 Mo. 640, loc. cit. 647, 153 S. W. 1047, 1050, Blair, C., said:

"In this case there is no pretense of killing by poison, by lying in wait or in the perpetration of any of the crimes designated by the statute, and, as a consequence, the verdict cannot be sustained except by evidence of a willful, deliberate and premeditated killing. The contention is that there is no evidence of deliberation. From an intentional killing with a deadly weapon, nothing more appearing, there arises a presumption that the act...

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