State v. Swain

• Decision Date: 31 October 1878
• Citation: 68 Mo. 605
• Parties: THE STATE v. THOMAS AND ALLEN SWAIN, Appellants.
• Court: Missouri Supreme Court

68 Mo. 605

THE STATE

v.THOMAS AND ALLEN SWAIN, Appellants.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Newton Circuit Court.--HON. JOSEPH CRAVENS, Judge.

The court gave the usual instruction as to reasonable doubt, and added that “a captious doubt, or mere possibility of innocence, is not to be regarded as a reasonable doubt.”

C. W. Thrasher and H. C. Young for appellants.

J. L. Smith, Attorney-General, for the State.

SHERWOOD, C. J.

One Jasper Hale, J. O. Swain, and his brothers, Thomas and Allen Swain, the defendants, were jointly indicted for murder in the first degree, in the killing of Paul Marshall; the first count charging all the defendants as principals; the second, Hale as principal, the others as aiders and abettors. Hale was not arrested. On trial had, J. O. Swain was acquitted, and the defendants convicted of murder in the second degree, their punishment being assessed at seventeen years each in the penitentiary, and they appeal here, alleging for the reversal of the judgment against them, many errors as having occurred during the progress of, and subsequent to the trial. In view of the conclusion reached, that this cause must be retried, it is deemed unnecessary to advert to all the exceptions, as the cause, in most particulars, was very well tried, and no objection is perceived to those instructions relating to the different degrees of murder.

The evidence as to who did the killing was altogether circumstantial. It seems from the evidence that defendants, J. O. Swain, Benton Davis and Andrew Curry, went to Newtonia from the house of defendants' father, who lived some five miles south of that town, to see a game of base ball played between two companies. On their way thither they were overtaken by Jasper Hale. On arriving at Newtonia, Thomas Swain and some others of those mentioned, participated in the game. About four o'clock in the afternoon the defendants, J. O. Swain, Hale, Curry, Davis and Thos. E. Pearson, started on horse-back from Newtonia on the road in the direction of their homes. Before they had traveled more than about one-quarter of a mile they were overtaken by the deceased, Marshall, who, it seems, was at that time on good terms with all the company, and who rode with first one and then the other of them, for some three miles, when he took a more rapid gait and rode ahead of them, and out of sight--finally stopping at Heilig's house, four miles south of Newtonia, where, on being invited, he hitched his horse and went into the house, by which time it was nearly dark. The nearest and most direct route homeward of the defendants and the party with them, with the exception, perhaps, of Davis and Curry, lay directly past Heilig's house, as shown by the testimony and plat of the witness Moore. The party, consisting of the defendants and those with them, seven in number, who were evidently under the influence of the cup which cheers but also inebriates, soon afterwards rode up in front of Heilig's house, situate some fifteen yards from the Newtonia road, and commenced debating in loud and boisterous tones, not unmingled with profanity, the question whether they should go to Harmony church to attend a religious meeting then in progress there, or should proceed to their respective homes. While the matter was under discussion, Marshall, being in the house, announced his intention of going out to where the party of young men were, and being advised by Mary Heilig not to do so, replied: “The boys won't hurt me,” got up and went out into the yard, was recognized by them while there, proceeded out to them, when almost as soon as he got there one of the party rode off; one said, “Are you gone?” one said, ““I want peace;” another said, “I do too;” in a few minutes afterward shooting was heard; next the sound of horses' feet going south on the Newtonia road; next the sound of conversation some 150 yards from the house in the direction the horses had gone, and in an hour and a half from that time the body of Marshall, who, it seems, was unarmed, was found about five feet from the side of the Newtonia road, eighty-five yards from Heilig's house, about sixty-eight yards north of where the party had stopped, riddled with a number of balls of apparently different sizes, and corresponding, it seems, to pistols of similar kinds at the time in the possession of Jasper Hale and Thos. Swain; but there was testimony also conducing to show that the bullets found in the body were all originally of the same size, and that the latter had bought that day in Newtonia a box of pistol cartridges. Of the wounds on the body of the deceased, some were inflicted as if by one or more persons, in a position above him; others by some one on a level with him. The ground, however, where the body was found, only indicated, on examination next morning, a struggle between two men. The tracks of five horses were also found the next morning in and near the Newtonia road, and apparently in the same direction and locality from which the noise of the talking of a crowd was heard to proceed after the shooting, and after the noise of horses' feet was heard going south on the previous night. The testimony of Bridges shows that after Marshall had reached Heilig's house, and been invited in--Bridges on his way home, about 150 yards north of Heilig's house, on the Newtonia road, met Benton Davis and six others going south on that road, and after he had gone half a mile he heard several shots behind him.

The testimony of Lisles (who lives on the Newtonia road on Shannon creek, about a mile north of Heilig's house, and close by the spot where that road continues south, and the road to Harmony church forks to the right, and that to Independence school house to the left), shows that about dusk on the evening of the homicide, Marshall passed his house riding south at a pretty good gait, and soon after that, other persons not recognized, came riding along going also at a similar pace and in the same direction and making a noise; that after this party of unknown persons had passed his house and reached the forks of the road before-mentioned, some one cried out, “That is not the right road, Tom,” when some one answered, “D--n the right road to h--ll, this is the road I am going;” and the party, thereupon, took the same road Marshall had gone; that soon after these words were spoken, a pistol shot was fired, and some one was heard to say, “Did you get him?” and another one replied, “Not yet.” There was also testimony showing that the party with whom defendants were, was repeatedly seen brandishing and firing pistols on their way from Newtonia; that a pistol shot was fired by some one of the party when in the vicinity of Shannon creek or Lisles' house, where Marshall left them, and when he was about 125 yards in advance of the party on his way to Heilig's house.

As to the difficulty which immediately preceded the homicide of Marshall, the testimony tended to show that on the latter coming out to where the party of young men were he asked some question, received rather a saucy answer from Hale; that some rough words passed between them; that Hale was next seen down from his horse; that Marshall immediately collared or throttled Hale, saying to him, “I'll settle with you,” and led him off on the road towards Newtonia; that defendants were seen down off their horses, and as well as one or two others of the party, were also trying to preserve peace by calling to Hale and Marshall for that purpose; that this intercession accomplished nothing; that no one, so far as seen, followed Hale and Marshall; that after they had gone some thirty yards on the road towards Newtonia, Davis and Curry started on eastward from Heilig's towards their homes, and had gone about 100 yards when they heard firing; that Pearson, who lived but a short distance north-easterly from defendants, and on or near the Newtonia road leading towards the home of defendants' father, had, after the altercation between Marshall and Hale begun, gone on south on that road about thirty yards, when he heard a pistol fire, and saw its flash; that when he had gone about 200 yards from the scene of the altercation he was over-taken by the three Swain brothers, who went along with him on the Newtonia road until they came to a point where they left him and turned off in the direction of their home, which, by a near cut sometimes traveled, could be reached by leaving the Newtonia road near the south-east corner of Heilig's little field, thence going south-west through Hale's father's farm and by his house.

The testimony of...