State v. Wade

• Citation: 270 S.W. 298
• Decision Date: 19 March 1925
• Docket Number: No. 26027.,26027.
• Parties: STATE v. WADE.
• Court: United States State Supreme Court of Missouri

270 S.W. 298

STATE v. WADE.

No. 26027.

Supreme Court of Missouri, Division No. 2.

March 19, 1925.

Appeal from Circuit Court, New Madrid County; W. S. C. Walker, Judge.

Ben Wade was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Mayes & Gossom and Ward, Reeves & Oliver, all of Caruthersville, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

WHITE, J.

By information filed March 7, 1923, in the circuit court of Pemiscot county, defendant was charged with murder in the first degree in killing one Mack Stubblefield, November 12, 1922.

On September 3, 1923, upon application of defendant, change of venue was awarded to New Madrid county, where, October 22, 1923, defendant filed an application for continuance which was denied. On October 24th he filed second application for continuance. It also was denied. The same day leave was granted the prosecuting attorney to indorse the names of additional witnesses upon the information. The defendant then filed his third application for continuance, which was denied. To all of these rulings error is assigned.

The evidence shows that November 12, 1922, the defendant owned a building on Twelfth street, in Caruthersville, and that the basement was rented to negroes who conducted a sort of gambling establishment. On that day Jesse Johnson, sheriff of Pemiscot county, Mack Stubblefield, then constable of Little Prairie township, Pemiscot county, and H. D. Gaines, a deputy constable under Stubblefield, went to the place in the evening about 7:30 for the purpose of raiding it.

According to the evidence of the state, the sheriff opened a door which led down a stairway into the basement. At the bottom of the stairway another door opened into the room where the negroes were. He stepped in and commanded everybody to hold up their hands and not get excited. Stubblefield came in second and stopped near the side of the door. Gaines came in between Stubblefield and Sheriff Johnson, and stopped. Immediately after the sheriff commanded the persons to hold up their hands, Wade appeared in front of Stubblefield and shot him. He came from the side of the door, or some point near the entrance. The first shot struck Stubblefield under the right eye. He and Wade then clinched and appeared to be scuffling over the gun which Wade had. Wade continued to fire and shot three times more. In the meantime Johnson and Gaines fired several shots at Wade. Stubblefield was shot three times, and died within five or six minutes. Wade was shot" four times: In the back, in the nose, in the arm, and in one finger. The shots fired by, Johnson and Gaines were after the shots fired by Wade by which Stubblefield was killed.

It was shown there was an arrangement by which an alarm could be given upstairs in a restaurant operated by a negro woman. The basement had no windows and no exit excepting the door by which the officers entered. There were pool tables, dice horns, cards, and money on one of the tables. One of the negroes exclaimed, when the officers entered: "There is Mr. Johnson. He has sure got us this time."

The evidence showed there was ill feeling between Stubblefield and Wade, which had existed for some time, and threats against each other were proven by various witnesses, most of which threats of Stubblefield were communicated to the defendant.

The defendant's evidence tended to show that Stubblefield had said prior to the difficulty that he knew if he undertook to arrest Wade that one or the other would die, and made various threats against the defendant; that defendant owned the building on Twelfth street, and rented it sometimes to white people and sometimes to negroes; that at the time of the homicide it was rented to negroes, but defendant knew nothing about its operations, and had no knowledge of the arrangement by which an alarm could be sounded from upstairs. He had gone to the place that evening to collect the rent, and while there he heard a shot fired. At the time he did not know that the officers had entered, his back was towards the door, and the shot hit the wall on a line with his head. He immediately turned and saw Stubblefield standing with a gun pointed in his direction. He then advanced and started towards the door for the purpose of getting out. He and Stubblefield were enemies. He did not want to hurt him, and he did not want to be hurt by him. He knew he had done nothing at the time to be arrested for. The defendant and the deceased met near the door, and Stubblefield jabbed his pistol in defendant's bosom. Defendant, seizing it, pushed it away, and a scuffle ensued in which the pistol was fired; the bullet striking the defendant in the finger. He then snatched his own pistol from his pocket and shot as quickly as he could. He shot three or four times. Stubblefield at the time was trying to get his gun in position. He was hit four times. Other shots were fired, which missed him. His, wounds were severe and kept him in the hospital 25 days and incapacitated him for 11 months.

A number of witnesses were introduced by the state in rebuttal to show that the general reputation of the defendant for morality was bad. On this evidence, October 27, 1923, the defendant was found guilty of murder in the second degree, his punishment assessed at 15 years' imprisonment in the penitentiary, and he appealed.

I. On October 22, 1923, the defendant filed an application for continuance on account of absent witnesses. This application was overruled. The court then, at his instance, issued an attachment for two witnesses, which attachment was returned, showing one of the witnesses was not found, and the other was too sick to bring into court. The appellant then filed another application for a continuance, reasserting the facts set forth in the first application, the issuance of the writ of attachment and return, and stated the absence of other witnesses. The two applications stated that subpoenas were issued September 24, 1923, for about 20 witnesses whose names were set out in the applications; that the subpoenas were returned October 22, 1923, showing that 12 or 13 of such witnesses were not served with subpoenas. It is stated in the application that those witnesses all were residents of Pemiscot county, and the city of Caruthersville; that nearly all of them at the time were temporarily absent from that county, which prevented the service of the subpœna upon them. The return showed that at least five of those witnesses were served with the subpœna issued September 24th, and thereafter. Three of those served were shown to be sick and unable to appear in court; two of them, for reasons unknown to the defendant, did not appear. Two of the absent witnesses who had been served, Kathryn Smith and Bessie Ford, who were sick and physically unable to attend court, lived at Caruthersville at the time. One of them, Dr. Phipps, duly served September 24th with a subpoena to appear at the trial October 22d, had gone to Denver at the date of the filing of the application, and the knowledge of such fact became known to the defendant for the first time October 22d. The defendant was informed and believed that the witness would be present to testify, and relied upon that information, Dr. Phipps was a colonel in the National Guard of Missouri, and was ordered by the United States government to appear in Denver, Colo., for military duty at that time. It is further stated that one witness, H. L. Stanley, who was not found by the sheriff, had recently removed to Cape Girardeau, and that fact became known to the defendant the day the affidavit was made.

It is further alleged that one witness, Bertrand Shaw, served with subpcena October 9th, was sick and unable to appear at court. was stated that the fact that the absent witnesses were unable to attend did not become known to the defendant in time to take their depositions.

It is further alleged in the application that about eight of the absent witnesses, naming them, saw the homicide, and if present would testify to facts, set out in detail, which would corroborate the statement of defendant in relation to that incident; some of the witnesses; if present, would testify to admissions and statements of witnesses for the state, which conflicted with their testimony in the base.

It is further alleged that among the absent witnesses who saw the homicide were Bertrand Shaw and Bessie Ford, both of whom were sick. The facts relating to the illness of witnesses were shown by certificates of physicians. It is further alleged that Dr. Phipps, if present, would testify to the extent, size, character, and the location of each and all the wounds inflicted upon the defendant Wade, in a way to corroborate the plea of self-defense; and that he would further swear that immediately after the shooting he heard statements of the witnesses for the state, which contradicted their testimony. It is further stated that the witness Kathryn Smith, who was absent on account of sickness, if present would swear to statements Made by H. I. Gaines, witness for the state, which conflicted with his testimony given at the trial.

The application sets out with some particularity, and at length too great to reproduce here, what nearly all the absent witnesses would swear to, many of them being...