State v. White

• Decision Date: 06 June 1905
• Parties: STATE v. WHITE.
• Court: Missouri Supreme Court

87 S.W. 1188

189 Mo. 339

STATE v. WHITE.

Supreme Court of Missouri, Division No. 2.

June 6, 1905.

HOMICIDE—CORPUS DELICTI—FLIGHT — ALIBI— EVIDENCE—STATEMENT OF DEFENDANT.

1. Evidence held sufficient to support a conviction of murder in the second degree.

2. In homicide, evidence of police officers who had known defendant for years that they could not find him around his usual haunts after the crime, and after tracing him for some time they found him in a hospital under an assumed name, is sufficient, in the absence of explanatory facts, to authorize the submission of the question of flight to the jury.

3. In homicide, evidence held sufficient to establish the corpus delicti.

4. In homicide, a statement of defendant that he would assume the blame, and prove self-defense, was competent as an admission that he shot deceased.

5. In homicide, the introduction of testimony by the state of a statement of defendant that he was not present at the scene of the murder, made for the sole purpose of showing its falsity, does not raise the issue of alibi, so as to call for an instruction thereon.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Peter White was convicted of murder in the second degree, and appeals. Affirmed.

At the April term, 1904, of the circuit court of the city of St. Louis, Edward Maher, John B. King, Clemens Schoenhoff, Mike Galvin, and the appellant, Peter White, were jointly indicted for murder in the first degree, for the killing of James Nolan, at said city, on the 13th day of March, 1904. The court having granted a severance, a nolle prosequi was entered as to the defendants Maher, King, Schoenhoff, and Galvin. On arraignment the defendant pleaded not guilty, and the trial occurred on the 27th day of May, 1904, before a jury duly impaneled. As the validity of the indictment upon which this prosecution is based is not challenged, we can see no necessity for reproducing it.

The difficulty occurred at McAuliffe's saloon, on the southwest corner of Thirteenth street and Cass avenue, in the city of St. Louis, on the 13th day of March, 1904; and the facts developed upon the trial, as detailed by the witnesses, were substantially as follows:

Dr. Howard Carter testified: That he was connected with the coroner's office in the city of St. Louis as post mortem physician, and that in his official capacity on the 13th day of March, 1904, he performed a post mortem examination on the body of a man identified to him as James Nolan. That on examination he found the body of a man about 5 feet 8 or 9 inches tall, weighing about 155 pounds. That the examination disclosed a small, round gunshot wound just above the collar bone, on the right side, close to the hollow of the neck, a little to the right. On opening the body he found that one of the lungs had been perforated, and that there was a large amount of blood in the left chest—the left lung having been perforated—and in the tissues of the back found a leaden ball. The ball was about 2½ inches to the left of the spinal column, and just about on a level with the bottom of the shoulder blade, indicating a slight descent from the point of entrance. That death was caused from hemorrhage resulting from the gunshot wound.

Austin Tarrance testified: That he was the porter in McAuliffe's saloon, situated on the corner of Thirteenth street and Cass avenue, in the city of St. Louis, on Sunday, March 13, 1904. That there was a wineroom in the rear of the building, with three entrances to the saloon—two on the front streets and one in the rear. That he arrived at the saloon on the morning of the difficulty about five minutes after 7. On his arrival he found about 10 men standing at the bar, drinking. He knew some of the men in the saloon— among then, Galvin, King, Schoenhoff, Maher, the bartender, Nolan, the deceased, and the defendant, White. Nolan was standing at the end of the bar towards the front, White next to him, Galvin next to White, Schoenhoff next to Galvin, and Maher was behind the bar. That two or three strangers came in after he reached the saloon. That he remained in the saloon, doing some work behind the bar, about 15 or 20 minutes, and heard no conversation between the men. He then went into the yard in the rear of the saloon, and was there about 20 minutes. He heard no noise in the saloon while in the yard. On entering the saloon he heard the report of a gun, and he met Schoenhoff and King going out the back door as he went in. As he entered the saloon he saw three or four men going out the front door—among them, the defendant, White. In the saloon when he entered were the bartender, Galvin, and the deceased. The deceased was leaning against the table. He saw blood on his shirt bosom and on the floor and table. Galvin was standing near the stove, and the bartender was at the telephone. After the shooting he left the saloon on an errand, and was arrested.

Sergeant of Police Hurst testified that he was notified of the trouble, and, in company with another officer, drove to the saloon of McAuliffe, and found the body of a man lying on the floor, with a bullet hole in his neck; that in the saloon were Maher and Schoenhoff, and he met Galvin coming out; that he found a revolver behind the bar, in a drawer; that he examined the revolver, and found it was fully loaded.

Officer Hugh McFarland testified that he had known the defendant for 10 or 12 years; that he and Detective McCarthy were assigned to investigate the homicide, and began their investigation the day after the difficulty; that they traveled all over St. Louis and East St. Louis in search of the defendant, and finally located him in the City Hospital on the 29th of April, under the name of Peter Byron. Defendant told them that he was not at the saloon at the time of the killing, but was at Dave Leahy's house, on Howard street, just east of Jefferson avenue. He stated that he visited the place as indicated by defendant, but found no one living at that place by that name; that he then took the directory, and found a man by the name of Dave Leahy living on Warren street; that the defendant stated that from the 13th of March to the 29th of April he was working on a peddling wagon, and was also in East St. Louis several times on his wagon. "I asked him where he was at the time Nolan was killed on Thirteenth and Cass avenue. He said he remembered all about it; that he was out at Dave Leahy's house."

Clemens Schoenhoff testified that he was at McAuliffe's saloon on the morning of the 13th of March; that he reached there about half past 1, and remained until between 7 and 8 o'clock; that he saw Galvin and Maher in the saloon. The witness stated: That the defendant came into the saloon with two other men, and in about three minutes Nolan came in. These men were at the bar when Nolan came in, and they had a drink. After that the bartender called him and gave him a drink, and he then went out into the yard, and remained about 15 minutes. While out there a fuss started in the saloon, and, when he came in, Maher was putting Nolan out the front door. That he pushed him pretty near to the door, and Nolan refused to go. That he wanted to get at White, and said he would kill him before the day was over. That White was trying to keep away from him—trying to get around him. That he heard a shot, but did not see the shooting. That he looked up, and saw White and these two men running out the front door. He further stated that he saw Nolan fall, and that right after the shot was fired he saw Maher; that he did not think Maher had a pistol, because he (Maher) had hold of Nolan with both hands; that the bartender told the deceased to get out of there—he did not want any fighting in there on Sunday; that he heard him say, "You fellows will have to get out of there." Maher had hold of Nolan, and he was trying to get behind the counter, and, in pushing him out, he had to pass by where White was standing. The deceased was wrestling with Maher, to get at White, and, when he said he would kill White, White replied, "You won't kill me." Nolan was cursing and using such language as, "You God damn cock-sucker son of a bitch!" but he did not apply any epithets toward any one except White. Witness said he did not see a gun there.

Edward Maher testified that he was tending bar in McAuliffe's saloon on the 13th of March; that he went to work about 7 o'clock that morning; that he had known deceased about a month, and had seen the defendant in the saloon on another occasion; that, when he opened up that morning, Galvin and Schoenhoff were in there; that White, Nolan, and two other men came in, one after the other. The witness stated: That they were quarreling when they came in, but he did not know what about. The drinks were ordered, but he did not know by whom, nor which one paid for them, but that there was a dollar laying on the bar, which he took, and, after deducting for the drinks, put a dime back on the bar. That there was an argument in front of the bar about money —about drinks—and that he thought Nolan started the argument. That they were talking about getting another round of drinks and about money. The deceased tried to go behind the bar, and he caught him and pulled him out, and told him he would have to keep quiet, or he would put him out. That Nolan kept hollering, and when he had his back turned the shot was fired. When Nolan started behind the bar, he said, "You cock-sucker! I will kill you before night." When the deceased used this language and started back of the bar, he was arguing with White. That White made no reply to Nolan when he said he would kill him before night. That there were four men there, and they were all arguing, but the only dispute about the payment of drinks was between the deceased and White. When Nolan started behind the bar, he caught him and pushed him three or four feet...