State v. Stair

• Decision Date: 31 October 1885
• Citation: 87 Mo. 268
• Parties: THE STATE v. STAIR et al., Appellants.
• Court: Missouri Supreme Court

87 Mo. 268

THE STATE

v.STAIR et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Vernon Circuit Court.--HON. J. B. GANTT, Judge.

AFFIRMED AS TO HENRY S. STAIR.

REVERSED AS TO NANNETTIE STAIR.

E. C. Martindale and Scott & Hoss for appellants.

(1) The verdict is against the evidence, especially is this so as to defendant, Nannettie Stair. (2) The verdict is against the law as declared in instruction number three given by the court, for the evidence fails to show that the wound on the back of the neck was made with a hatchet. (3) The court erred in permitting the paper, claimed to have been written by Henry Stair, to be read in evidence. The knowledge of the witness of the handwriting of Stair was insufficient to identify the paper as having been written by the latter. Besides his opinion was partially based on a comparison with other papers not admitted to be genuine and not of record in the case. (4) The paper at most should not have been admitted against defendant Nannettie. There was no evidence that she ever saw it or had it in her possession. The court should not have admitted in evidence the dress with blood stains on it. Such evidence cannot be preserved in the bill of exceptions so as to enable this court to review it. Ibinger v. State, 53 Ind. 251; 34 Md. 216; Brown v. Foster, 113 Mass. 136; 33 Ind. 187. Besides the blood was not shown to have come from the wound of a human being. (5) It was error to tell the jury they should consider, in weighing the evidence, the interest of the witnesses, their demeanor on the stand, etc. (6) The court should have given the instruction asked by defendant, Nannettie, as to an accessory after the fact.

B. G. Boone, Attorney General, for the state.

(1) The indictment is without defect and the instructions given on the trial cover every branch of the law applicable to the evidence, and are such as have been repeatedly approved by this court. (2) While the testimony as to the defendant's guilt was wholly circumstantial, yet it pointed with unerring certainty to defendants as being guilty of an inhuman murder. (3) The court rightly admitted the paper found in the pocket of Henry Stair as against him. It was sufficiently identified as being in the latter's handwriting by the witness, Rockwood, and tended to show a confederation and conspiracy, implicating more than one person in the crime. (4) There was no evidence that connects defendant, Nannettie, with the paper just referred to and it is submitted that as to her its admission in evidence was reversible error.H. H. Blanton also for the state.

(1) The paper found in the pocket of Henry Stair was properly identified by the witness Rockwood. State v. Scott, 45 Mo. 304; 1 Greenlf. Evid. 576. (2) Defendants' general objection to the paper was rightly overruled because being competent against one defendant, the state could not be deprived of its use because incompetent as against the other. State v. Talbott, 73 Mo. 359. Defendant, Nannettie, should have asked an instruction at the trial limiting the effect of the paper as against her. Besides the paper was competent as against Nannettie. The jury was warranted in inferring from the evidence that it had been written by Henry and shown to her while out at the camp at a time when it was not convenient for defendants to talk about the proposed killing for the reason that they might be overheard. It was no error for the court to fail to give on its own motion an instruction so limiting the effect of said paper writing as to defendant, Nannettie, because it related to a collateral matter as distinguished from one defining the crime or grade of crime. State v. Kilgore 70 Mo. 558.

BLACK, J.

The defendants were jointly indicted and tried, the defendant, Henry S. Stair, for killing Jacob Sewell, and Nannettie for being present, aiding and abetting in the murder. They were both found guilty and sentenced to be hanged. The evidence as to the killing is circumstantial only. Jacob Sewell, the deceased, was advanced in years, and he and his son were camping near Nevada. They had with them an old and a new wagon, four horses or rather ponies, a few old plows, some bedding, dishes and the like. Defendants were, for the time, living at Nevada. Jacob Sewell called to see them, and they visited him and his son at their camp. Defendants were at the camp on the night of the fifth of August, 1885, and on that night Sewell and his son were both murdered. Defendants were again at their house that night; during the night or early in the morning they drove the wagons and teams by their house, got some articles, and then drove out from Nevada a few miles and camped in or near the woods that day. The bodies of the deceased persons were found near this camp in the brush, covered up with an old sack and leaves. The evidence tends to show that the dead bodies were dragged from the wagon to the place of deposit. A hatchet with blood and hair upon it and some articles of clothing were also found at this same camping ground.

After the arrest a knife was found in Henry S. Stair's coat pocket with blood upon it. Wounds were found upon the head and neck of Jacob Sewell, one upon the head having the appearance of having been made with the pole of an ax, and another upon the neck which appeared to have been made with a knife, either of which, it is said, was a mortal wound. The defendants were arrested on the seventh of the same month, on the road, then having the horses, wagons, etc., in their possession; one wagon was covered and in it were found bloody articles of clothing and bedding. There were many more circumstances in proof which need not be detailed.

Error is assigned in the admission of evidence on behalf of the state in the following respects: Two dresses of Nannettie Stair, one worn by her on the day of her arrest, and the other on the day of homicide, with some other articles of clothing, all of which were found upon her person or in the wagon, and all of which had blood stains upon them, were introduced in evidence and inspected by the jurors. These stains constituted a part of the chain of circumstances relied upon by the state. Such stains upon the person or clothing of the parties accused have always been recognized among the ordinary evidences of homicide. They may be shown by inspection of witnesses, or by the inspection of the jurors. This, it is said, is the common practice in criminal courts. People v. Gonzales, 35 N. Y. 60; Whart. Crim. Evid., sec. 312. It was as competent for the jurors to get this information by their own sight as it was to get it through the 'medium of witnesses. They received this information in this case in both ways. The argument that these garments were not and could not be filed with the bill of exceptions, and, therefore, should not have been examined by the jurors, is no reason for excluding them. The descriptive evidence is sufficient to enable this court to pass upon the competency and relevancy of the...