State v. Welton

• Decision Date: 01 December 1920
• Docket Number: No. 22316.,22316.
• Parties: STATE v. WELTON.
• Court: Missouri Supreme Court

225 S.W. 965

STATE v. WELTON.

No. 22316.

Supreme Court of Missouri, Division No. 2.

December 1, 1920.

Appeal from Circuit Court, Carter County; E. P. Dorris, Judge.

Frank T. Welton was convicted of murder in the first degree, and he appeals. Reversed, and defendant discharged.

W. N. Evans, of West Plains (Cunningham & Clark, of Eminence, on the brief), for appellant.

Frank W. McAllister, Atty. Gen., and H. P. Ragland and C. P. Le Mire, Asst. Attys. Gen., for the State.

WHITE, C.

On April 29, 1920, in the circuit court of Shannon county, the defendant, Frank T. Welton, was convicted of murder in the first degree, and in due form appealed from the judgment following. He was charged with having murdered his wife, Pearl Welton.

Some time in the spring of 1917, Welton appeared in Shannon county, near the town of Mountain View, which is in Howell county, and purchased a farm consisting of 40 acres. Living on the farm at the time was a man named Tyler, who had a wife and several children, including a daughter named Pearl, at that time about 22 years of age. In September, 1917, Welton married Pearl. Her parents, with the rest of the family, moved to another state. Frank continued to live there with Pearl until she met her death in January, 1919.

In May, 1918, a woman named Carrie Welton got oil the train at Mountain View and went to Frank Welton's home. This woman was 45 years of age at the time of the trial. She stated to one witness, and perhaps to others, at the time of that visit, that she was Frank Welton's sister. She remained at his house two or three days and then left, returning, as she said, to Nebraska from whence she had come. In January, 1919, she again appeared at Mountain View and went to Frank's house, remained there two or three days, when the death of Pearl Welton occurred. Pearl's body was found, soon after life was extinct, in a cistern on the premises, with evidence that she had been choked to death.

It appeared from the testimony of Carrie Welton that her former name was Carrie Hoffland. She had a daughter 21 years of age who appeared as a witness for the state, having come from Kansas City to testify. Carrie had been divorced from her husband, Ole Hoffland, in Iowa, when her daughter, Myrtle Hoffland, was a child 6 years of age. According to the story of Myrtle Hoffland, her mother met Frank Welton in South Dakota after the separation from Hoffland, and the two, Carrie and Frank, began to live together as husband and wife. They afterwards went to Nebraska, where they lived together for several years holding themselves out as husband and wife. Carrie Welton testified that she and Frank had an agreement to get married, which agreement probably amounted to a common-law marriage. After they had lived together there for 10 or more years, in the spring of 1917 they agreed to divide between them the property which they had. Frank Welton owned 640 acres of land on which they lived. Carrie Welton had received money from her father's estate amounting, she testified, to about $6,000, which she had spent in improvements on the place. At the time of the division of the property a great deal of personal property, consisting of cattle, horses, etc., was on the place. In the division Carrie Welton received the farm and Frank Welton the personal property, which he converted into money and came to Missouri.

As to what occurred between Carrie Welton and Frank Welton on her first visit to the farm in May, 1918, and as to what occurred between them on her second visit before the death of Pearl Welton, the testimony is very meager. It shows only that Carrie Welton arrived on the first visit and remained on the premises two or three days, and about the same length of time on the second visit before the tragedy. The testimony on which Frank Welton was convicted was almost solely that of Carrie Welton. Other witnesses were introduced simply to show the circumstances and previous relations of the parties. She testified to her previous relations with Frank Welton, the places they lived, the property they had, and the agreement of division of the property. She said that Welton came to Missouri with the intention of sending for her; that Frank told her he was not married to Pearl, who was just staying there and would soon go to her parents in Kentucky. She said after she had been there two days, in January, 1919, Pearl asked her if she were Frank's wife. She told her, "Yes." Then Pearl "pitched into me and knocked me down and tried to kill me, or tried to hurt me." She finally got away from Pearl and went to the barn, and while she was in the barn Frank came to the house. She did not see what was done, but when she came back Frank was right by the cistern and told her that Pearl was in the cistern; that the two of them got Pearl's body out, and Frank said "we would have to make up a story to tell the folks when they came, or else we would get into trouble over it." She did not say that a story was made up or that Frank had said anything else, indicating his guilt.

Other witnesses, who appeared at the Welton home soon after the body of Pearl Welton was taken out of the cistern, testified. (The cistern is called a well in the testimony of several witnesses.) At that time Frank Welton was in the house, holding the baby and feeding it milk, and the body of the dead woman was lying on a cot. The clothing of the woman had been removed and was lying on the floor, very wet; her hair was wet. The clothing of the baby also had been removed, and the testimony is conflicting as to whether or not it was wet. The state sought to prove that the baby was not in the well at any time, while it was the effort of the defense to show that it was in the well with its mother; that it had been taken out and its clothing changed on that account. The evidence as to that will be more fully noted later.

It appears that no marks of violence were found on the body of the woman that day, but the next day at the coroner's inquest a mark was observed on the right temple as if from a blow with a hammer, not enough to fracture the skull, but enough to "addle" her and render her unconscious for a few minutes. There were marks on her throat and neck described by the physician as finger prints indicating that she had been choked to death. There were other minor bruises about her arms.

Carrie Welton stated to persons who appeared immediately after the body was taken from the well that she and Pearl had cleaned up the dinner dishes, that Frank went off and she went out to take a walk up the road, walked about 200 or 300 yards, looked back, and saw Pearl standing at the cistern with the baby. When she came back in half an hour she discovered Pearl and the baby in the well. She went to meet Frank, who was returning to the house, and told him Pearl Was in the well. She then described how the two got the baby and the woman out of the well, agreeing with Frank's testimony as to those particulars.

Nothing was shown in the defendant's previous conduct to indicate any ill will against his wife Pearl, or any intention to get rid of her and resume his relations with Carrie Welton, except the statements of Carrie Welton herself, above mentioned. Physicians testified as to the condition of the body and other witnesses to the appearance of things at the house, as stated above, when they arrived on the scene immediately after the body was removed from the well.

Frank Welton swore that during the second visit of Carrie Welton to his house, after eating his dinner on January 17, 1919, he went to a patch of timber to do some work; that he finished his work in about an hour and a half and came back to the house, and as he approached the house Carrie Welton came towards him and told him that Pearl had jumped in the well with the baby. He threw down his tools, secured a rope, went down in the well, and tied the rope to the baby. Carrie Welton drew the baby up. Then he fastened the rope around Pearl, climbed up the rope, and drew her out of the well. He said that Carrie changed the baby's clothes and put dry clothes on it; that the baby was in bad condition, but it apparently had recovered by the time neighbors began to come in.

The cistern was shown to be 16 feet deep, the bottom egg-shaped, and the water 26 inches deep in the deepest place. The clothing of Pearl Welton which had been removed when the neighbors arrived was not only wet, but showed particles of clay clinging to it. Other evidence will be considered in discussing the propositions urged for a reversal of the judgment.

I. Aside from the testimony of Carrie Welton, there is no testimony whatever connecting the defendant with the commission of the crime. His own story is the only evidence as to what occurred immediately on the premises.

His concern and expedition in rescuing the baby and the body of his wife from the well is shown by evidence other than his own. The rope burned his hands in sliding down, indicating his hurry; he rescued them and changed the clothes of his wife, and was caring for the baby; he caused an investigation on the suggestion of a neighbor that there was foul play; he requested a neighbor to send a message to Pearl's mother telling her that Pearl was drowned. There was an entire absence of any threats or any previous conduct which would indicate a desire to get rid of his wife. A chain of circumstances pointed strongly towards the guilt of Carrie Welton, showing that the murder had been committed independent of his agency. All this, notwithstanding he had opportunity to commit the crime, would indicate his innocence rather than his guilt.

II. It remains then to consider whether the evidence of Carrie Welton was sufficient to take the case to the jury. Her testimony is circumstantial. She testified, as stated, that she had a fight with Pearl, went to the barn, and...