State v. Walker

• Citation: 9 S.W. 646,98 Mo. 95
• Parties: STATE v. WALKER.
• Decision Date: 12 November 1888
• Court: United States State Supreme Court of Missouri

9 S.W. 646

98 Mo. 95

STATE v. WALKER.

Supreme Court of Missouri.

November 12, 1888.

1. CONSPIRACY — EVIDENCE.

Evidence that defendant and others met in a secluded place, in the night, armed and masked; that they discussed the propriety of whipping different persons; that they went two miles to a house, killed two of its inmates, of whom one was a person they had contemplated whipping; and that, in defendant's presence, instructions were given by one of the number to the others as to what they should swear in case of prosecution, — sufficiently establish as a conspiracy, the scope of which included the homicide committed, to admit evidence that defendant belonged to a secret organization, whose object was the destruction of property and maltreatment of persons; and that some of the party, on the way from the rendezvous to the scene of the homicide, attacked the house of one of the murdered men, and found him absent.¹

2. WITNESS — COMPETENCY — JOINTLY INDICTED.

Witnesses jointly indicted with defendant, one of whom has been acquitted, and a nolle prosequi entered as to the others, are competent, though another joint indictment is pending against them and defendant for the murder of another man, at the same time, and in the same transaction, as that for which defendant is on trial.

3. CRIMINAL LAW — EVIDENCE — DECLARATIONS.

Evidence that one of the party instructed others, in defendant's presence and hearing, to swear to an alibi in case of a prosecution for the homicide, is admissible.

4. HOMICIDE — MURDER — DEFINITION.

It is not error, in an instruction defining murder in the first degree, to omit the word "feloniously," as it is used only in classifying offenses, and is not a distinct element of the crime.

5. SAME — PREMEDITATION.

The deliberation and premeditation essential to murder in the first degree may be inferred from the circumstances of the killing.

6. SAME — INSTRUCTION — PROVOCATION.

All the evidence tending to prove that the homicide was the result of a preconceived plan between defendant and his co-conspirators, with no circumstances of provocation to exclude the idea of deliberation, and the defendant denying all complicity in the killing, it is not reversible error to instruct that the violent passion necessary to reduce homicide from murder to manslaughter must be the result of provocation which the law recognizes as being founded on cause, omitting to define such lawful provocation, as under the evidence and the theory of the defense no injury could result to defendant.

7. CRIMINAL LAW — INSTRUCTION — PRESUMPTION FROM FLIGHT.

An instruction that flight raises a presumption of guilt, and that, if defendant fled to avoid prosecution for the homicide, the jury "will consider" that fact in connection with the other evidence in arriving at their verdict, is proper, especially when supplemented by another, stating that such presumption is not conclusive, and would not of itself warrant a conviction.¹

8. SAME.

In such case, there being no evidence to explain defendant's leaving home, except to avoid prosecution, it is not error to omit to qualify the instruction by the statement that, if the jury found that he did not leave for that purpose, his departure raised no presumption of guilt.¹

9. SAME — EVIDENCE — ACCOMPLICES — CORROBORATION.

An instruction that the testimony of accomplices should be carefully scrutinized, and that, unless corroborated by other witnesses, especially as to the identity of the accused as the person against whom the accomplices have testified, such testimony is insufficient to convict, is correct; as such an instruction sufficiently presents the necessity for corroboration upon the question of identity.²

10. SAME — ADMISSIONS.

There being indubitable evidence of the corpus delicti, and also evidence corroborative of the inculpatory admissions of defendant, it is not error to refuse to instruct that the admissions should be received with great caution, and were not, unless corroborated, sufficient to warrant a conviction; the jury having been charged to weigh such admissions with caution, considering the liability of the witness to misunderstand defendant's language.³ SHERWOOD, J., dissenting.

11. SAME — REASONABLE DOUBT.

In an instruction defining a "reasonable doubt," it is not error to instruct that such a doubt should be a "real doubt," arising from the testimony, or the absence of testimony, in the case.⁴

12. HOMICIDE — INSTRUCTIONS — ACCOMPLICES.

Instructions stating, in effect, that if defendant did not fire the fatal shot himself, but if, acting in a common purpose with those who did, being near enough to render immediate assistance, he encouraged, countenanced, or aided therein, or waited upon or stood watch, for the active perpetrators of the crime, he would be as guilty as if he fired the fatal shots, are correct.

13. CRIMINAL LAW — TRIAL — ARGUMENT OF COUNSEL.

Defendant having testified that he was present at the homicide, and stood on the door-step, but was there for no felonious purpose, it was not reversible error to allow the prosecuting attorney to say, in argument: "As to what was going on in the house while defendant was at the door, we are left to conjecture, so far as defendant's testimony is concerned. He does not tell us, nor could we ask him any questions, as to matters not testified to by him in his direct examination."

Appeal from circuit court, Christian county; WALTER D. HUBBARD, Judge.

Indictment against William Walker for the murder of Charles Green. Verdict of guilty, and judgment of death. Defendant appeals. The fourth, tenth, and twentieth instructions, in substance, state that, if defendant did not himself kill deceased, but was near enough to and did give immediate assistance in the killing, or intentionally aided, abetted, countenanced, or encouraged it, or waited upon and stood watch for those who did it, acting in one common purpose with them, he would be as guilty as if he himself fired the shots. The second instruction given explained the reasonable doubt which will justify an acquittal as a "real, substantial doubt of defendant's guilt, arising from the testimony, or from the want of testimony, in the case, and not a mere possibility of defendant's innocence."

Boyd & Delaney and Traverse & Payne, for appellant. B. G. Boone, Atty. Gen., and R. F. Walker, for the State.

BLACK, J.

William Walker, the defendant, and 15 other persons, were indicted in the Christian county circuit court for killing Charles Green, on the night of the 11th March, 1887. The cause, as to this defendant, came to trial after two continuances, and he was found guilty of murder in the first degree, and sentenced to suffer the death penalty. There was an organization in that county known as "Bald Knobbers," which had its signs, grips, and pass-words. The members were admitted by taking a pledge to keep the secrets of the order and to protect each other, under the penalty of death. On the night of the homicide the defendant and his father, — the latter chief, and the former assistant chief, — and other members of the band, to the number of 20 or 30, met at an out-of-the-way place, called the "Old Smelter," which was in a ravine, and a half mile or more from any habitation The greater portion of the men were armed and masked, and it appears that switches had been gathered, and were at hand, for the purpose of whipping persons who were not in good standing with this organization. The defendant had a shotgun and pistol, and wore a mask. They remained at this place two or three hours, consulting and initiating members; and then, with the exception of three or four persons, went in a north-east direction one or two miles, when they came to a halt, until the horsemen and those on foot formed a group. They then separated, because some one stated that the "Slickers" might fire into them. Most of the men ran into a small inclosure, three or four hundred yards off, to a house owned and evidently supposed to be occupied by William Edens. They broke open the door, but found no one in the house. The crowd then traveled in great haste a mile or more to the house of James Edens, which was a one-room house, with one window only, and two doors, and about 16 by 18 feet in size. There were in the house James Edens, his son William Edens, and his son-in law, Charles Green, their wives and two small children. The evidence of James Edens and the three women is, in effect, that the inmates of the house were asleep; that these men on the outside aroused them by cursing, and using such language as, "Get out of there, or we will kill you;" that the assailants at the same time broke the window glass with their guns, and fired three shots into the house through the broken window; that others of them broke down the doors, entered the house, fired a dozen shots, and fled, having killed William Edens and Green, and wounded James Edens. It seems some of the inmates of the house got their pistols and shot as best they could, wounding the defendant. At the time defendant was wounded he dropped his gun, and left it in the house.

1. Three of the witnesses for the state, namely, William Newton, Charles Graves, and Gilbert Applegate, were jointly indicted with defendant in this case. Applegate had been tried and acquitted, and the state entered a nol. pros. as to the others, that it might use them as witnesses. It was admitted that these witnesses and defendant still stood jointly indicted in another case for killing William Edens, and for this reason defendant objected to these witnesses. The objection is placed on the ground of joint interest in the prosecution. That is a different indictment from this, and an indictment for a different offense, though the general facts of the two cases are the same. A partner in a crime is not an incompetent witness, simply because of the turpitude of his conduct. The admission of accomplices as witnesses for the state is...