State v. Weaver

• Decision Date: 12 November 1901
• Parties: STATE v. WEAVER.
• Court: Missouri Supreme Court

65 S.W. 308

165 Mo. 1

STATE v. WEAVER.

Supreme Court of Missouri, Division No. 2.

November 12, 1901.

CRIMINAL LAW — EVIDENCE — DECLARATIONS OF ACCESSORIES — MATERIALITY — STATUTES — REMARKS OF COUNSEL — FAILURE OF ACCUSED TO TESTIFY — FAILURE OF ACCESSORY TO TESTIFY.

1. Where accused and two others indicted jointly with him for the murder of a police officer had been arrested in the city where the homicide occurred about a year prior thereto, it was error on the trial of accused to admit evidence to the effect that one of accused's coindictees had said at that time that he would get even with the police of the city if it took 20 years, it not being shown that deceased was a member of the police force when the threat was made, or that any of those indicted knew that he was at that time or subsequently, and it not appearing that accused took any part in the threat, or that any conspiracy existed to do any such act as was charged in the indictment.

2. Where accused and two others were jointly indicted for murder, it was error on the trial of accused to admit evidence showing that his coindictees had endeavored to break jail, it not appearing the accused took any part in such attempt.

3. Where accused and two others were jointly indicted for murder, it was error for the court on the trial of accused to give an instruction relative to the attempt of accused to break jail, there being no evidence that accused had taken part in the attempt.

4. No exception being taken to the giving of such instruction, it did not constitute reversible error.

5. Rev. St. 1899, § 2638, declares that if an accused shall not avail himself of his right to testify, or of the testimony of the wife or husband, the same shall not be referred to by the attorney in the case. Held, that where accused and two others were jointly indicted for murder it was error for counsel for the state on the trial of accused to remark to the jury on the failure of the coindictees to testify as to their whereabouts at the time of the crime, and to state that he made no reference to the fact that accused was not placed on the stand, inasmuch as the latter statement was, in effect, a reference to the failure of accused to testify, and the statute, though in terms applying only to husband and wife, does not sanction a reference to the failure of a coindictee to testify.

Appeal from circuit court, Pike county; D. H. Eby, Judge.

Edward Weaver was convicted of murder, and he appeals. Reversed.

Dempsey & McGinnis, J. E. Thompson, and E. W. Major, for appellant. E. C. Crow, Atty. Gen., and Perry S. Rader, for the State.

SHERWOOD, J.

This is a prosecution for murder, defendant being found guilty of murder in the second degree, and sentenced to 10 years in the penitentiary. The homicide occurred on the night of February 13, 1900. The person charged to have been killed was Lowell Pew, night watch in the city of Louisiana, Mo., and he was shot and instantly killed at the K. Line Depot in that city. There was a great deal of mystery connected with the killing of Pew. It is unnecessary at this time to go into the evidence to any considerable extent in passing upon those assignments which we deem necessary to notice. Burns, Weaver, and Logan were the three coindictees in this case, and on severance had Weaver alone was put on his trial. He had no means to employ counsel, and so the present counsel were appointed by the court to defend him as well as those who were indicted with him. These three persons were what are known as "tramps," and when arrested no weapons of any kind were found upon them. Weaver had been tried once before, but the jury failed to agree. Then the trial of defendant again came on, some features of which will now receive comment.

1. A year or so before Pew was killed, Burns, Weaver, and Logan had been arrested in Louisiana on some trivial charge, and while confined there in the calaboose of that city Burns said "he would get even with the police of Louisiana if it took 20 years." This evidence of what Burns threatened to do was afterwards, against defendant's objection and exception, admitted in evidence against Weaver when on trial for the murder of Pew, — something which occurred over a year after the threat made, — although it was not shown that Pew was a member of the police force at the time Burns made that threat, or that Weaver or Burns or Logan knew that Pew was a member of the police force at the time nor subsequently, and although Weaver took no part in the threats, and gave them neither assent nor approval. The only way in which such evidence could have been made relevant and admissible against defendant would have been to have introduced evidence to show that a conspiracy existed, at the time Burns made this threat, between Burns and Weaver to do to Pew, or at any rate to the policemen of Louisiana, the act charged in the indictment, or one of a similar nature. But there was no such conspiracy proved nor attempted to be proved. State v. May, 142 Mo., loc. cit. 152, 43 S. W. 637, and cases cited. Of course, the nearness or remoteness of the threat would have nothing to do with its admissibility against the person making it. State v. Grant, 79 Mo. 137, 49 Am. Rep. 218; Carver v. Huskey, 79 Mo. 510; State v. Adams, 76 Mo. 357. But because evidence of such threat was competent against Burns, the maker, it would be a most glaring and incomprehensible non sequitur to suppose that therefore it would be competent against Weaver. This point of the utter inadmissibility of the evidence aforesaid must be ruled in favor of defendant.

2. In the attempt to break jail while confined in the jail at Bowling Green awaiting trial, the evidence is clear and beyond dispute that, although Burns and Logan participated in that attempt, yet that Weaver had neither part nor lot in that matter. But no objection or exception was taken by defendant, nor did he move to exclude such testimony, conceding it to have been inadvertently admitted. The court afterwards of its own motion gave an instruction relative to defendant's attempt to break jail. This instruction was plainly erroneous, as having no evidential basis on which to rest. No exception, however, was saved to the giving of this instruction, and so its giving constitutes no reversible error.

3. The chief ground of complaint made in this court is the improper remarks made by counsel for the state when addressing the jury. These remarks were as follows: Mr. Eugene Pearson, special counsel for the state, in his argument to the jury said: "And the question comes right here as to where these parties were on the evening of this murder, and where they were after it, and the question for them to answer to this jury is why Edward Burns and Richard Logan did not enter that witness stand, and testify and tell where and how they were — By Mr. Major: We object. Mr. Pearson: It was their right and their duty — Mr. Major: We object to the remarks as made by the counsel, for the reason that Edward Burns and Richard Logan stand jointly indicted with Edward Weaver, and they are not on trial, and he has no right to comment on the fact that Edward Burns and Richard Logan did not take the stand. By the Court: The objection is overruled. (Defendant excepts to the ruling of the court, and saves his exceptions.) By Mr. Pearson: For they could enter the witness stand, and under the form of an oath give to the jury any evidence to let them know where they were, or calling out the testimony that they were in and around this murder at the time. I will tell you, sir, it is their duty, it is their right, they owe it to themselves, they owe it to the state, and they owe it to this county to explain the circumstances under which they were seen on that evening. I will tell you, sir, that when they stand charged with being accessories, or in company with one who is charged with a murder, — this foul murder of an officer of the land, — it is these two men's duty to clear away the cloud, and give you the truth; and, if they guard the silence, that's the greatest witness, the silent monster that tells them to keep still, — I say if they give that silent testimony in that way, they convict themselves as being there at that time with their friend, and they are to be regarded in his company for whatever purpose the evidence may bring out. Edward Burns and Richard Logan had ample opportunity to prove an alibi. With the men that live in this land, this country which is thickly populated, it is no trouble to show where they have been and what they have been doing. If they had had friends in Lincoln, Illinois, where they said they had worked in the mines, it would have been an easy matter to have brought some one to plead in behalf of their necks; but Edward Burns and Richard Logan do not get on the witness stand and testify, and Edward Burns and Richard Logan do not get on the witness stand and testify as to breaking jail, and, as this instruction asserts, it is a circumstance that goes to the presumption of guilt. By Mr. Major: I renew the objection, for the reason that Edward Burns and Richard Logan stand jointly indicted with the defendant Weaver, and must in turn be tried, and their failing to go on the stand cannot be commented on by the attorney. By the Court: The two parties mentioned are not on trial. (Defendant excepts to the ruling of the court, and saves his exceptions.) By Mr. Pearson: The...