State v. Vaughan

• Citation: 102 S.W. 644,203 Mo. 663
• Parties: STATE v. VAUGHAN et al.
• Decision Date: 14 May 1907
• Court: United States State Supreme Court of Missouri

102 S.W. 644

203 Mo. 663

STATE v. VAUGHAN et al.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. HOMICIDE — CONSPIRACY — EVIDENCE — ADMISSIBILITY.

On a trial for murdering a prison guard while attempting to escape pursuant to a conspiracy between defendants and another, evidence of the conspiracy was admissible, though the other conspirator was not included in the indictment.

2. CRIMINAL LAW—INSTRUCTION—REFUSAL—NOT SUSTAINED BY EVIDENCE.

In a trial for murdering a prison guard while attempting to escape, it was proper to refuse to instruct that if defendants conspired to escape, and agreed no one should be killed or injured, but that the escape should be effected solely by intimidation, and the killing of the guard by one of the defendants was a departure from the purpose agreed upon, the defendants not aiding or abetting the killing were not guilty, where, though there was evidence of such agreement, it appeared each of them went armed into the deputy warden's office, covered him, and, when he attempted to draw his pistol, one grasped his wrist, another shot him, and all together seized him and two visitors, and compelled them to accompany defendants to the penitentiary's exit, compelled decedent to throw up his hands, and one of defendants shot him without the slightest provocation; another officer having been killed, another injured, and another shot at.

3. HOMICIDE—FIRST-DEGREE MURDER.

Where defendants killed a prison guard while attempting to escape custody pursuant to a conspiracy, all were guilty of murder in the first degree.

Appeal from Circuit Court, Cole County; Wm. H. Martin, Judge.

Harry Vaughan and others were convicted of murder in the first degree, and they appeal. Affirmed.

E. L. King and Edwin Silver, for appellants. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

This is the second appeal in this cause. The first is found reported in the 98 S. W. Rep. 2.

The defendants were indicted at the November term, 1905, for the murder of John A. Clay on the 24th of November, 1905. When the cause was here at the October term, 1906, of this court, it was reversed for the sole reason that the circuit court refused to instruct the jury that they were at liberty to find one or more of the defendants guilty and the others not guilty, as they might deem right and proper under the instructions of the court and the evidence in the case. On the retrial of the cause on January 12, 1907, the circuit court gave said instruction in addition to those which it gave on the former appeal, and the jury under the evidence and the instructions of the court found each of the defendants guilty of murder in the first degree as charged in the indictment, and, after motions for new trial and in arrest were heard and overruled, sentenced each of the defendants separately to be hung on the 1st day of March, 1907. From that sentence the defendants have in due and proper form appealed to this court. As on the former trial the testimony on behalf of the state tended to prove: That all three of the defendants and one Hiram Blake were on the 24th of November, 1905, lawfully imprisoned in the state penitentiary situated in the eastern portion of Jefferson City, Mo. That around the penitentiary buildings and grounds there is a high stone wall, and the entrances into the penitentiary are through the western walls. A short distance north of the north wall are situated the tracks of the Missouri Pacific Railroad and a few feet north of the tracks is the Missouri river. In the testimony of the witnesses two entrances are referred to; one being through the office in the administration building of the penitentiary, entering the grounds through an ordinary door opening into an iron cage, the other one, the wagon entrance, this last-named entrance was used by all vehicles that had occasion to go in and out of the prison walls, and consisted of two sets of double doors situated some distance from each other. On the 24th of November, 1905. Matt W. Hall was warden, R. E. See was deputy warden, and John A. Clay, Ephriam Allison, J. K. Young, and John Bruner were guards at the prison. It was the duty of Mr. Clay to stand in the wagon entrance between the two double doors, inspect the contents of the various loads that passed through said entrance, and attend to the locking and unlocking of the doors. Mr. See's duties as deputy warden required that he spend most of his time in his office, which was some 75 feet north of the iron cage entrance, and this entrance was some 15 or 20 feet north of the wagon entrance. Mr. See's office was on the ground floor, and opened out into the yard of the prison, and this yard opened into the stockade in which were located the prison shops where the three defendants and one Blake were working. Warden Hall and several of the prison officials were absent from the city on official business, having left Jefferson City on the forenoon of that day. About 3 o'clock on the afternoon of said day two gentlemen from Osage county were admitted as visitors to the prison, and were sitting in the deputy warden's office, talking to a prisoner, when the three defendants and Blake appeared at the door of the said office with pistols in their hands, and commanded Deputy Warden See to hold up his hands, threatening to kill him if he refused. Mr. See endeavored to draw his pistol, and one of the four convicts fired his pistol, striking See in the wrist and also wounding defendant Vaughan in the hand. Vaughan was in the act of grabbing Mr. See's hand when Blake shot at Mr. See. See was then disarmed by them, dragged out of his office, and ordered to march between Blake and the defendant Vaughan to the wagon entrance; and the two visitors were also ordered to march one by the side of the defendant Ryan and the other by the side of the defendant Raymond. The wagon entrance was reached just as the inner doors were being opened to admit a two-horse wagon into the prison yard, and the four convicts rushed through said doors, taking with them Mr. See and one of the visitors. The other visitor managed to get loose and escaped. The four convicts ordered Mr. Clay, who was on duty at that point, to hold up his hands, which he did. They then ordered him to hold his hands up higher. Some one in the wagon entrance then fired at Clay, striking him in the neck and killing him instantly. As the space in this wagon entrance was tolerably dark, neither Mr. See nor Weggeman, one of the visitors, could state who it was who fired the shot, but the driver of the team, Charles Woodland, testified positively that the defendant Vaughan was the first man to push into said wagon entrance, and that Vaughan fired the shot. Other shots were fired by the defendants and Blake in said entrance. Some of them were so close as to burn Mr. See's face with powder. These defendants then ordered See to unlock the outside doors, but he told...