State v. Thomas
| Decision Date | 30 November 1915 |
| Docket Number | No. 18724.,18724. |
| Citation | 180 S.W. 886 |
| Parties | STATE v. THOMAS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.
Ed Thomas was convicted of murder in the first degree, and appeals. Affirmed.
Defendant appeals from a conviction of murder in the first degree and a sentence to the penitentiary for life, for that, as it was charged, he had shot and killed Albert Cole in Iron county.
Defendant and deceased lived in the same neighborhood at the time of the homicide, which occurred on the 7th day of August, 1914. About 10 or 11 o'clock on that day defendant came to the house of deceased in an intoxicated condition. There he got into a verbal altercation with the wife of deceased. Deceased himself was not present, but was a hundred or so yards away engaged in repairing a fence. It does rot clearly appear who began this altercation, but shortly after it commenced defendant began cursing Mrs. Cole. The latter ordered him to leave the place, and upon his refusal threw a small board at him, but did not succeed in striking him. Defendant continued to curse and abuse Mrs. Cole, whereupon, after throwing a small rock at him, which missed him, she struck him quite a severe blow in the back of the neck with a large rock. This made defendant very angry, and he started to leave with a threat that he was going down home "get his gun and kill Mrs. Cole and burn the house down on toe of her." About this time deceased came up to the house from where he had been repairing the fence and said to defendant:
"Ned, you had better go on and not have any trouble."
To which defendant replied:
"You are looking for trouble, too, and if you are, I will give you all the trouble you are looking for."
Thereupon defendant left the premises going in the direction of the cabin in which he lived, which seems to have been near the residence of one Sweeney, members of whose family were the principal witnesses for defendant.
An hour or two later, and shortly after noon, some person fired a rifle at the house of deceased from a small clump of bushes and timber situated on the south side of deceased's residence and some 50 or 60 yards distant therefrom. On hearing this shot deceased went to the kitchen window, in the up.. per sash of which there was no glass, and looked out toward the point from which the shot came. Immediately thereafter a second shot was fired, which struck deceased in the shoulder and passed through his body. Afterwards three other shots were fired, some of which at least struck the house. Just as the second shot was fired deceased remarked, "I see Ned Thomas." Instantly afterwards the bullet struck him, and remarking, "I am shot," he staggered around through the kitchen and fell into the dining room.
Except for the statement of deceased at the moment the shot was fired and he was struck, the identity of the person who shot him with defendant rests wholly upon the dying declarations of the deceased; for, while there were two other persons besides the wife of deceased in the house at the time, neither of these nor the wife saw defendant at the time at which or place from which the shots in question were fired. Therefore the whole controversy here is as to the admissibility of two dying declarations of deceased.
Dr. Meador, a physician of the neighborhood, was called, and reached the premises of deceased about 1 o'clock. He examined deceased, ascertained the manner and severity of his wounds, and at once told him that he was fatally wounded, and that his recovery was impossible. Deceased replied to Dr. Meador, upon being informed as to his condition, that he was not going to die; that he had "a chance to live a thousand years yet." About 2 hours after this the coroner, Dr. Farrar, and the prosecuting attorney arrived at the Cole premises. Thereupon both Dr. Meador and Dr. Farrar examined deceased, and agreed that he was fatally wounded, and that his recovery was impossible. Both of them told him their conclusions as to his condition. Thereupon he made the statement relied on by the state here as a dying declaration. Further reference to this will be made when we come to discuss the law of the case. About 10 hours afterward, and only some 10 or 15 minutes before deceased died, he made another and similar statement to one Joe Haven. The admissibility of this statement is strenuously contested by defendant. In substance, both the statement to Haven and that to Dr. Meador consisted in deceased's saying that he saw the person who shot him at the time the shot was fired, and that "it was old Ned Thomas," the defendant here.
The defense relied on was an alibi, so darkly and obscurely presented, however, as to make it difficult for us upon the bare record to see its relevancy. Since no point is made upon it, and since the jury as the sequel shows did not credit it, we need not take up space in reciting the details of it.
Such other facts as may serve to render clear the discussion made necessary by defendant's contentions will be found in the subjoined opinion.
O. L. Munger, of Piedmont, and Arthur T. Brewster, of Poplar Bluff, for appellant. John T. Barker, Atty. Gen., and S. P. Howell, Asst. Atty. Gen., for the State.
There is but one point in the case among the contentions made by defendant which is both borne out by the record and properly preserved for our review. That is whether upon the foundation laid the dying declarations of deceased as detailed by Dr. Meador and Joe Haven were admissible as such.
Touching the admissibility of the statements detailed by Haven and relied upon by the state as dying declarations, and admitted by the court as such, there can, upon the facts, be scant contention. A bare recital of the facts and circumstances under which deceased made the declarations to Haven settles this contention in favor of the admissibility of the statements. The deceased only some 10 or 15 minutes before he died had been telling Haven the whereabouts of a hammer and a crosscut saw which deceased had theretofore borrowed from this witness. Afterwards, and but a few minutes before deceased died, Haven tells us this happened:
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