OPINION
MORLING, J.
Three
others, Emmett Kirby, Joseph Kirby, and Melvin Zuber, were,
with appellant, jointly indicted for the murder of Charles
Hos. The appellant, Clark Troy, moved for and was granted a
separate trial. Zuber was a witness for the State. Emmett
Kirby was a witness for the defendant. Joseph Kirby's
whereabouts appear to be unknown.
The
four defendants went by automobile to the home of the
decedent, Charles Hos, somewhere between 9:15 and 10:30 P.
M., September 21, 1927, to obtain whisky. The State's
claim is that the defendants' purpose was to get it by
"hijacking" Hos. The appellant and Emmett
Kirby's claim is that some arrangement had been
previously made between Buster Lyon and Hos for the whisky,
and that they proceeded to the Hos home in accordance
therewith, to get it. A loaded shotgun was in the car in
which the defendants rode to the Hos home. Zuber testified
that the two Kirbys, Lyons (a younger brother of Buster Lyons'), appellant, and Zuber got in the car at
the Lyons' house; that Lyons put a shotgun in the back
seat; that appellant, Joe Kirby, and Lyons sat in that seat;
that they went to the Hos house; that, when near the Hos
garage, where Hos was found, appellant and Emmett Kirby said,
"We are going to 'hijack' this place;" that
he understood by "hijack," robbery; that, when they
got to the garage, Emmett and Zuber got out of the front
seat, and appellant and Lyons "got out of the back seat,
and with that, Clark Troy ordered Hos to hold up his hands
and back into the garage. Troy had a shotgun in his hands.
When Mr. Hos was ordered to put up his hands and back into
the garage, he backed into the garage. He put his hands up.
Next, a shot was fired. Clark Troy fired the shot. The shot
was fired as soon as we arrived. When the shot was fired, I
run to the nearest telephone, and called the sheriff, and
told him what happened. I told the sheriff to meet me in
Jones and Locust Streets, and that is where I met him. I took
him to the Hos home. * * * Charley Hos, when he had his hands
up, couldn't have taken over two steps when he was backed
up. * * * Clark Troy ordered Hos to back into the garage. He
did so, and took about two steps, and fired the gun. There
wasn't anything said in the car about shooting Hos."
Hos was
wounded in the abdomen, and died therefrom a few days later.
Two men named Lester were in the garage at the time. Zuber
testified that the Lesters were in the garage before he and
the others came; that "one of the Lesters said,
'There is no whisky here.' After this statement was
made by the Lesters, the shot was fired,--right
afterwards."
A
13-year-old son of deceased's testified that the men in
the car "got out, and Troy stuck a gun on my dad, and
told him to stick them up; and he didn't, at first, but
then he did. * * * My father didn't stick them up until
the second time they told him to. * * * He said, 'They
can go and search the place,' and they said, 'We will
search the place, and will shake it down to find it.' * *
* Troy had the gun. * * * He was the man that told my father
to put up his hands. I saw the gun in Troy's hands at the
time the gun was discharged. * * * After the gun went off,
they all went away from the place, and when I got back, the
car was backing out of the alley. After I got back from
telling my mother what happened, the Emmett Kirby guy and Troy came back. * * * they kept on
saying--asking him [deceased] to say it was an accident; and
then they said they would pay my dad's expenses and the
bill while he was laid up. They just asked my mother to
say--they brought the gun, and asked her to say it was his
gun. Troy said to say it was my dad's gun. * * * 'You
will say it was an accident?' * * * I saw the defendant,
Clark Troy, get out of the car. He had a gun in his hands
when he got out."
The
sheriff testified that Emmett Kirby, in the presence of
defendant, "said it was he who did the shooting, and
when the question was put to them as to whether or not they
went up to 'hijack' the place, they said, 'We
might as well tell you; you will only find out anyway.'
Both Clark Troy and Emmett Kirby admitted they had, and they
said at that time that the shooting was an accident. * * * It
was the night of September 21st, shortly after I got Clark
Troy and Emmett Kirby to the jail, that they said they went
up there to 'hijack' the place. * * * I had a further
talk with the defendant, Clark Troy, about the shooting. He
made a voluntary statement that it was he who done the
shooting. Speaking with Clark Troy, I referred to the
'hijacking' in that conversation, and he said,
'well,' that it wasn't exactly
'hijacking.'"
The
sheriff also says:
"Boys
told me that they went to 'hijack' booze from Charles
Hos. * * * Boys only told me once. * * * In common parlance,
'hijacking' means the robbing of booze."
The
deputy sheriff testified:
"Kirby
and Troy said to Zuber: 'Where did they get you at?'
Clark Troy, in my presence, said to the sheriff that night
that they went up with the intention of 'hijacking'
for liquor."
The
dying statement of Hos says that appellant "had a
shotgun in his hands. He ordered me to hold up my hands, then
ordered me to back into the garage. When I backed into the
garage, while I had my hands over my head, Troy shot me * * *
Before Troy shot me, he and the two Kirbys told me they came
to hold up the place and get the stuff."
Defendant
testified:
"Emmett and I had gone up to the Hos home to
get some whisky we had ordered;" that he (appellant)
"started to take the pump, jack, and tire-changing
tools, and I think there was a blanket, or a coat,--or I
don't know what it was. It was something Emmett had
thrown into the car, to cover the whisky with, and the
shotgun was laying in the car, and I don't know what it
was; but I reached over to pull the two of them out, and the
shotgun went off; and Charlie Hos was standing directly
behind me, and I heard somebody say, 'I am
hit.'"
He also
says:
"We
didn't have any whisky bought from Mr. Hos; we had the
whisky bought from Buster Lyons. Buster Lyons, we knew, was
buying it from somebody else. That is, he said he could get
it for us, but he didn't have it."
He says
that they didn't tell the sheriff that they went up there
to "hijack" the place.
"What
was actually said was that we denied, at first, that we went
up there after whisky. * * * The shotgun was discharged as I
was reaching into the car to pull this shotgun out, to put it
onto the front seat, together with the blanket and other
things in the car, to make room for the whisky. * * * The
shotgun was laying on the floor * * * [indicating], and I
felt, as I picked up the blanket--or I don't know what it
was, but anyway, something that was there to cover the whisky
with; and I took hold of the shotgun, and went to take hold
of it, when it went off; and I don't know whether the
hammer was up, or how it happened."
His
credibility as a witness is impeached by his testimony that
he had been convicted of felony, and had been in Minnesota
state prison. He is materially contradicted by his own
witnesses.
Emmett
Kirby, as a witness for defendant, says that he got out of
the car, and appellant "got out on the other side, and
when I came in, I says, 'Is everything all right?'
and he [Hos?] says, 'No, Emmett, I am sorry, but I
couldn't get the stuff,' * * * I looked around there,
and I seen Clark [appellant] fooling around the car, around
the door; and I says, 'Clark, you don't have to clean
that out,--Charlie [Hos] didn't get to the
stuff. It is all off with the Lesters.' * * * He was
cleaning the car a short time,--not a minute. When he
completed cleaning the car, he come over to us. At that time,
when he turned around, I saw the shotgun in his hands. There
was nothing else in his hands, but there was a blanket on the
running board."
One of
the Lesters testified:
"The
first in was Emmett and Joe Kirby and Charlie Hos, and they
all stood there looking at each other, and not a word was
spoken until after the shot was fired. * * * When Emmett
Kirby stepped out of the car that evening, he came into the
garage, he said, 'Christ, it's the Lesters.' Was
standing by my car; didn't have a gun on me, nor my
brother."
The
other Lester testified that he had been in the garage about
twenty minutes.
"Around
half past ten, a car come down the street, and drove into the
garage. Several men got out of it, and one of the men, when
he jumped out of the car, he says, 'It's all off,
boys, it's all off,' and a shot was fired."
The
testimony of defendant's witnesses also is to the effect
that, immediately upon the explosion, the appellant exclaimed
that the shooting was an accident. They assert that the
appellant and his companions were at the Hos place in
pursuance of a previous arrangement by which they were to get
liquor there;
that decedent said he knew it was an accident, "But what
will my wife say?"
There
is testimony tending to show that a hole in appellant's
jacket was torn by the shot. We, of course, do not undertake
to set out all of the evidence and its inconsistencies. The
question here is whether it is sufficient to sustain
conviction.
I. What
lawful,...
