State v. Thomas

• Decision Date: 20 May 1913
• Parties: THE STATE v. BUSTER THOMAS, Appellant
• Court: Missouri Supreme Court

157 S.W. 330

250 Mo. 189

THE STATE v. BUSTER THOMAS, Appellant

Supreme Court of Missouri, Second Division

May 20, 1913

Appeal from Jackson Criminal Court. -- Hon. Edward E. Porterfield Judge.

Reversed and remanded.

Milford W. Rider for appellant.

John T Barker, Attorney-General, for the State; Paul P. Prosser, of counsel.

(1) The information sufficiently charges the offense of murder in the first degree. The manner in which the instrument is held whereby the injury is inflicted, is not material; and even if the same were material under the common law rules of pleading, the defect is cured by the sweeping provisions of Sec. 5115, R.S. 1909, which declares that "no indictment or information shall be deemed invalid for any . . . defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." State v. Bailey, 190 Mo. 276; State v. Shelton, 233 Mo. 229. (2) The question of appellant's age was addressed to the sound judgment and common sense of the trial judge, who had the witnesses before him, with opportunities for judging their credibility and determining the weight to be attached to their testimony that are not afforded to this court. The record discloses no circumstances whatever indicating any abuse of discretion on his part in this matter, and his own personal observation and examination of appellant, together with the latter's voluntary statements after arrest that he was seventeen years old, are sufficient to support the finding of the court that at the time of his trial appellant was eighteen years of age, and that the criminal court had jurisdiction of the cause. State v. Darling, 199 Mo. 198; State v. McGee, 212 Mo. 101. The court properly refused to delay the trial in order to provide counsel for appellant an opportunity to furnish the additional proofs suggested in appellant's motion to transfer the case to the juvenile court, consisting of the result of a fluoroscopic examination to be made of appellant, and the enumeration list of the colored public school of Cameron, Missouri, for 1906. The record shows that the question of appellant's age had been fully determined by the court, and after abundant opportunity had been afforded appellant to provide his proofs on that subject. As a matter that touched the very jurisdiction of the court, appellant should have anticipated the question thus presented, and been fully prepared to produce his evidence with respect to the same. The manifest lack of diligence on the part of appellant in providing such additional proofs fully warranted the refusal of the court to receive them. State v. Emory, 79 Mo. 462; State v. Carter, 98 Mo. 180; State v. Thompson, 132 Mo. 319; State v. Woodward, 182 Mo. 422. (3) While the evidence on this issue in the present case tends to show some public interest in the homicide, and some sentiment against appellant and his codefendants, yet it fails utterly to disclose such prejudice in the minds of the inhabitants of Jackson county as to indicate that the action of the trial court in denying the application for a change of venue was an abuse of discretion. State v. McCarver, 194 Mo. 734; State v. Vickers, 209 Mo. 27; State v. Sharp, 233 Mo. 283; State v. Rasco, 239 Mo. 551; State v. Barrington, 198 Mo. 85. (4) The testimony discloses a full and substantial compliance with the law on the part of the board of jury commissioners of Jackson county. The evidence thoroughly refutes appellant's groundless charge that the board had discriminated against negroes in the selection of the list of qualified jurors, and the motion to quash the array and panel was properly overruled. State v. Breen, 59 Mo. 415; State v. Riddle, 179 Mo. 294; Ullman v. State, 124 Wis. 602; People v. Sowell, 145 Cal. 292; State v. Daniels, 134 N.C. 641. As a further attack upon the authority of the board of jury commissioners, it is alleged in appellant's motions to quash the panel of twelve and in arrest of judgment that they "were and are holding two offices in conflict with section 18, article 9 of Missouri Constitution." We suggest that it may be seriously doubted whether a circuit judge is a "State officer" or an "officer of any county, city or other municipality," as the terms are used in that section. It would seem plain, however, that the circuit judges of Jackson county, and the judge of the court having jurisdiction in felony cases, as such jury commissioners, are not filling two offices, the public functions of which are inconsistent or incompatible, but are simply performing, ex officio, the duty of causing to be made, under their supervision, a list of qualified jurors for that county. State ex rel. v. Watson, 71 Mo. 470; State ex rel. v. Higgins, 125 Mo. 364; State ex rel. v. Bus, 135 Mo. 325; Bank v. Refrigerating Co., 236 Mo. 414. (5) Appellant assigns as error the action of the court in refusing to hear the testimony of appellant in connection with the question of the admissibility of his statement. The preliminary examination of Chief Griffin with reference to the circumstances under which appellant had made this statement, was searching and thorough, and the chief was subjected to an extended cross-examination by counsel for appellant. The court had fully determined the question, and properly refused to delay the trial by hearing appellant's testimony on the same subject, the nature of which could readily be anticipated. Appellant later availed himself of his privilege to testify in the case, and his repudiation of the statement, and his testimony in regard to the circumstances under which it was obtained, became a matter for the consideration of the jury. State v. Ruck, 194 Mo. 437. The abundant testimony on the part of the State shows that appellant's statements and admissions after his arrest were altogether voluntary. State v. Shackleford, 148 Mo. 506; State v. Vaughan, 152 Mo. 75; State v. Woodward, 182 Mo. 411; State v. Green, 229 Mo. 651. And conceding, for the sake of argument, that Chief Griffin told appellant, "You had better come through and tell the truth," etc., such language cannot possibly be construed as a threat or a promise, nor does it appear that appellant was induced to make his statement as a result of the same. State v. Hopkirk, 84 Mo. 284; State v. Bradford, 156 Mo. 97. (6) Instruction 6, in regard to the weight to be attached to appellant's statements and admissions, is in the familiar form which this court has approved in Banc. State v. Darrah, 152 Mo. 541; State v. Tobie, 148 Mo. 561.

BROWN, P. J. Walker, J., concurs; Faris, J., concurs in result.

OPINION

BROWN, P. J.

Defendant and six others were jointly charged with the crime of murder in the first degree. From a judgment of the criminal court of Jackson county sentencing defendant to the penitentiary during his natural life he appeals.

On the night of October 3, 1911, two white boys (George Johnson and his brother, Elmer Johnson) were out on the streets of Kansas City until a late hour viewing the "Priests of Pallas" parade. At the hour of 11:30 p. m., they were walking along Fifteenth street where the same intersects the Paseo, a locality inhabited by negroes, when they were accosted by a dozen or more negro boys who announced that the white boys had no business in "their territory." According to the testimony of Elmer Johnson, he and his brother kept on walking at a rapid pace until they were surrounded, assaulted and knocked down by the negro boys.

As quickly as they were permitted to do so the white boys escaped from their assailants and ran to a passing street car, when it was found that George Johnson had been stabbed in the heart by one of his assailants, from which wound he died a few moments later. When the street car arrived the negro boys all ran away and disappeared in the darkness. At that moment a man came along in an automobile and chased the negroes, but whether he found out who they were is not known as he was not called as a witness.

Neither Elmer Johnson nor the persons on the street car recognized defendant as one of the parties who assaulted and killed deceased.

Witness Dudley Jackson was sitting with a lady beside the street one block from where the tragedy occurred. He testified that about the time the killing occurred he saw and recognized defendant running past him -- running very rapidly from the direction where the killing took place. Jackson was partially corroborated by the lady who was with him, but she did not identify the defendant. She saw three negroes pass; one was walking and two running. According to her testimony the two negroes who were running passed behind her and Jackson, while Jackson testified that defendant ran in front of them.

Frank Coleman, a ten-year-old newsboy, testified that he walked up behind defendant and another negro boy while the latter were standing on another street about an hour after Johnson was killed, and heard defendant say to his associate: "If the police catch on to what we did to those two white boys they will kill us."

This was all the evidence directly tending to connect the defendant with the killing of Johnson, except some admissions and confessions alleged to have been made by defendant after his arrest, which will receive attention in the course of our opinion.

Defendant testified in his own behalf denying that he was on Fifteenth street and the Paseo when Johnson was killed. He denied that he took any part in the assault or killing, and also denied that he confessed his guilt to the police officers. He admitted going out to the parade on the night of October 3rd and remaining out until after midnight. He gave the names of three negro boys who, he says, were with him part of the time he was out, but he did not call them as...