State v. Wilson

• Decision Date: 08 May 1894
• Citation: 26 S.W. 357,121 Mo. 434
• Parties: The State v. Wilson, Appellant
• Court: Missouri Supreme Court

26 S.W. 357

121 Mo. 434

The State v. Wilson, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.

Affirmed.

F. H Braden and W. M. Farmer for appellant.

R. F Walker, Attorney General, and C. O. Bishop for the state.

(1) The motion for new trial does not assign as error the exclusion of any testimony offered by the defendant, but only the admission of improper evidence over his objection. The record discloses that the only evidence thus admitted, to which any exception was saved, was the dying declaration. There was no error in the admission of this statement of deceased. The prerequisites existed, viz.: the fact that the declarant was at the point of death, and that he entertained a well founded belief that he was about to die. State v. Simon, 50 Mo. 370; State v. McCannon, 51 Mo. 160; State v. Jefferson, 77 Mo. 136; State v. Mathes, 90 Mo. 571; State v. Stephens, 96 Mo. 638; State v. Umble, 115 Mo. 452. (2) The declaration admitted in evidence was clearly within the rule as to facts stated. It referred solely to the immediate act of shooting, identified the actor and stated no opinions, conclusions or suspicions. State v. Chambers, 87 Mo. 406; State v. Vansant, 80 Mo. 67. (3) The defendant admitted the shooting at the time and place charged, and pleaded justification. State v. Pagels, 92 Mo. 300. (4) The whole of the written statement of deceased is not called for nor set out in the record. This court will not presume error, but unless there is something in the record to the contrary, will presume that the ruling of the trial court was correct. (5) There is not a syllable of testimony in the record tending to show that the jury were separated before rendering the verdict. The affidavits filed by appellant in support of his motion for new trial do not allege that the jury were separated, nor that any communication was had with them by any person before verdict. (6) There is no law which forbids a jury to deliberate upon and find a verdict upon the first day of the week, commonly called Sunday, but it is lawful for a court to hold a session on Sunday to receive a verdict and to discharge the jury. R. S. 1889, sec. 3260. It is hardly reasonable to presume that the framers of this law referred to a verdict found on Saturday. (7) The instructions given by the court covered all the law of the case, and followed the most approved precedents. (8) The indictment is drawn under section 3459, Revised Statutes, 1889, and is sufficient.

OPINION

Burgess, J.

From a conviction of murder in the first degree, by shooting one Moses Hodges to death with a pistol, the defendant has appealed to this court. The shooting is charged to have occurred on the eighth day of November, 1892, in the city of St. Louis, inflicting upon said Hodges a wound from which he died in said city on the eighteenth day of December next thereafter. The trial was begun on Saturday, May 13, 1893, the evidence heard, instructions given and the case submitted to the jury about 11:30 P. M., when the court adjourned until the following Sunday morning, May 14, at 10:30 A. M., to receive the verdict, at which time the jury rendered their verdict, finding the defendant guilty of murder in the first degree.

Motion for new trial was filed, supported by affidavits; counter affidavits were filed by the state; the motion was overruled, as was also a motion in arrest.

Defendant and deceased were negroes. Both were rivals for the affections of one Lyda Nichols, a colored woman residing in the city of St. Louis. She occupied one room on the ground.floor of a building fronting on the street. A porch was in front of the door, and a pass way ran beside the house, leading to a yard in the rear, where there were other tenements, and thence into an alley.

At about 3 o'clock of the day of the shooting, deceased called at the woman's house and, finding her at home, entered her room and sat down by the stove upon a "stool chair" (so called by the witnesses) with his face toward the stove, his back towards or near the wall, his right side towards the door and he was leaning forward with his hands clasped around his knees. He had been sitting in this position but a few minutes conversing with the woman, when defendant entered the door, advanced into the room, raised a pistol, pointed it at deceased, and exclaimed, "I've got you now!" The woman cried out, "Don't shoot, Mr. Charley!" and ran out of the door, leaving deceased sitting in the same position on the stool chair. As she crossed the doorsill she heard the report of a pistol within, saw appellant come out of the room and run towards the rear.

Another colored woman, Delia Jackson, who lived in the rear, was on her way, with a little child, to visit Lyda, and just about to step upon the porch, when defendant passed her rapidly, sprang upon the porch and went into Lyda's. As he entered the door she saw him draw "something shining" out of his pocket. Being frightened, she took up her child and ran into the adjoining yard. She saw Lyda come out, heard the report of the pistol, and immediately afterward saw defendant come out, jump off of the porch and run to the rear.

A third colored woman, Susie Taylor, living a short distance off, was washing clothes at her window; saw deceased come down the street and enter Lyda's house. About five minutes afterward saw defendant come from the rear, pass Delia and enter the house; about two minutes afterward saw Lyda run out into the street, heard the pistol and saw defendant come out, put his hand in his bosom, jump off of the porch and run to the rear along the gangway. She hurried over to the house, went in, and found deceased apparently helpless, lying on the chair, his back against the wall, one leg stretched out on the floor, the foot under the stove, the other leg hanging over the chair, one hand lying on the floor and the other against the wall. Some men coming in lifted him up and laid him on the bed. The wounded man was taken to the city hospital where he died from the wound on the eighteenth day of December, 1892.

Search was made by the officers for the defendant that afternoon and night and for several days after, but he could not be found. In the early part of December it was learned that his trunk had been expressed to Chicago. Inquiries there led to his arrest in that city, and on the twelfth day of December he was brought back to St. Louis through a requisition. He disclaimed all knowledge of the shooting, and when accused of it replied, "If they say so they will have to prove it."

When taken to the hospital deceased was suffering intensely. A bullet wound was found in the axillary line of the right side, about two inches below the arm pit, between the third and fourth ribs. He was paralyzed in both legs, also in his abdominal muscles, and in his intestines and bladder, so that he passed his water and faeces involuntarily. On the second or third day after, traumatic pneumonia set in. He gradually sank, and four days before death became delirious. The autopsy showed that the bullet had passed downward from the point of entrance, went through the right lung, and was embedded in the muscles surrounding the spinal cord, pressing upon the cord itself, which was atrophied from the pressure.

A statement was obtained from deceased six days before he died as to the circumstances of the shooting, which was reduced to writing at the time and signed by him in the presence of the attending physician, two police officers and the defendant. A part of this testimony was admitted in evidence by the court as a dying declaration.

The testimony on the part of the defense tended to show: That on the day of the shooting, about noon, deceased had a conversation with one Winston, in which he stated that he had had a fuss that morning, but would not tell with whom nor what it was about During the conversation he put his hand in his bosom, drew out a pistol and remarked, "I'm fixed for any one that bothers me now." It does not appear that these remarks were communicated to the defendant nor that his name was in any manner connected therewith.

That about half past 9, the same day, deceased said to one Brown, "I'm going to kill somebody before 6 o'clock to-night, or they'll kill me." And when pressed to tell who that somebody was, replied that it was Charley Wilson, and at the same time showed a revolver; and that this remark was communicated to defendant about an hour later. The witness Brown admitted that some days after the shooting, he had received a letter from defendant written from Chicago, and that in response thereto he expressed defendant's trunk to him there, and that he knew the police were looking for defendant at the time; he also admitted that he had been a prisoner in the city jail since that time where he had met the defendant every day.

That between 11 and 2 o'clock of that day, deceased was in company with defendant and one Burrell, walking through an alley in the neighborhood of the homicide, and that deceased made the remark, "I've a notion to kill some son of a bitch around here;" but no name was mentioned; that they walked on to another alley and stopped to look at some things dumped into a lot, and there deceased stepped...