The State v. Barker
| Decision Date | 08 June 1922 |
| Parties | THE STATE v. OLLIE BARKER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Newton Circuit Court. -- Hon. Charles L. Henson, Judge.
Affirmed.
Charles E. Prettyman, Jr., for appellant.
(1) A person of unsound mind is incompetent to testify. Sec. 5418 R. S. 1919. (2) A party committed to the insane asylum is presumed to be insane, and continues to be insane until that insanity is overcome by testimony. State v. Vanghn, 223 Mo. 155. (3) Confinement in asylum creates a presumption of insanity and must be overcome by evidence. State v Herring, 268 Mo. 514. (4) The voir dire examination must show the witness competent to testify. State v Herring, 268 Mo. 514. (5) Under the common law an insane witness is incompetent to testify. Coke Litt. 246 B; Livingston v. Kiersted, 10 Johns. (N.Y.) 362. (6) Upon a voir dire examination a witness charged as insane must show: First, mental appreciation of criminality of false swearing: second, that he knows that perjury is morally wrong, and that one committing it is liable to be punished under the criminal law; third, he must understand the nature of the oath. Where party has been committed to the insane asylum, the burden of proof is upon the party offering the witness to show the above facts. This was not done. State v. Herring, 268 Mo. 535. (7) The state must prove the defendant guilty beyond a reasonable doubt. State v. Miles, 174 Mo.App. 181. (8) Upon an entire failure of proof the Supreme Court will set aside the verdict, as proof of bias and prejudice of the jury. State v. Alexander, 184 Mo. 266. (9) Where jury decisions are reached by passion or prejudice the Supreme Court will set aside the verdict. State v. Williams, 191 Mo. 205; State v. Jones, 191 Mo. 653; State v. Dilts, 191 Mo. 665. (10) The cross-examination of defendant Massey was improper on matters not brought out in chief. State v. Williams, 186 Mo. 128; State v. Teasdale, 120 Mo.App. 692; State v. Cook, 112 S.W. 710; State v. Sharp, 233 Mo. 269; State v. Lynes, 194 Mo.App. 184; State v. Cole, 213 S.W. 110; Sec. 4036, R. S. 1919.
Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.
(1) The information is good. Sec. 3230, R. S. 1919; State v. Ferguson, 212 S.W. 342; State v. Shelton, 122 S.W. 734. (2) The fact that a witness may have been adjudged insane is not a conclusive presumption that he is incompetent. A witness is competent if of sufficient mental capacity to understand the nature of an oath and to observe, recollect and narrate the things he saw and heard. Sec. 5418, R. S. 1919; State v. Herring, 268 Mo. 529. The issue of incompetency is for the trial court and its discretion will not be disturbed on appeal unless affirmatively shown to have been abused. State v. Jefferson, 77 Mo. 138; State v. Jeffries, 210 Mo. 326. (3) Where there is substantial evidence supporting the verdict of the jury, as in this case, this court will not interfere. State v. Fields, 234 Mo. 627; State v. Sharp, 233 Mo. 298; State v. Cannon, 232 Mo. 215. It is well settled that the court is not limited to the testimony offered by the adverse party, but will consider all the evidence in the case, in passing upon the sufficiency thereof to sustain the verdict. State v. Meagher, 49 Mo.App. 576; State v. Martin, 230 Mo. 700; State v. Lackey, 230 Mo. 720. Where the evidence is conflicting, it is for the jury to weigh and give such credit or reject the same as they see fit. State v. McKenzie, 177 Mo. 717; State v. Williams, 186 Mo. 135-8. (4) Appellant submits no proof by affidavit or otherwise showing that the verdict was the result of bias and prejudice, and this court will, therefore, not disturb the verdict on that ground. State v. Gonce, 87 Mo. 630; State v. Howell, 117 Mo. 342. (5) Unless the cross-examination violated some right of the appellant, the improper cross-examination of his co-defendant, Massey, if such was the case, could in no way operate to the prejudice of appellant, and he does not so complain or raise this point in his motion for a new trial, hence there is nothing before this court to review on that point. State v. McBrien, 265 Mo. 605.
On October 10, 1921, the Prosecuting Attorney of Newton County, Missouri, filed, in the circuit court of said county, an information against Ollie Barker and Loren Massey, alias Shock Massey, charging them with first degree murder, in the shooting and killing of Homer Kingcade, in Newton County, aforesaid, on September 25, 1921. On October 14, 1921, the prosecuting attorney, in behalf of the State, by leave of court, waived the charge of first degree murder against said defendants, and elected to try them for murder in the second degree.
Said defendants waived formal arraignment, and each entered a plea of not guilty. The case was tried before a jury, and on October 15, 1921, the following verdict returned:
Mrs. Lillie Kingcade testified that she was the wife of the deceased, Homer Kingcade; that she and her husband each carried a key to their residence; that defendant was related to her, and roomed at their place.
Ernest Brooks, who had lived in New Town many years, testified that he knew deceased and both defendants; that he saw Homer Kingcade in the evening, before he was killed that night; that Hunt's restaurant is across the street from the Knox store, north and west; that he saw deceased north of said restaurant, and he was alone; that he talked with deceased, and came back to the restaurant; that deceased went home; that he (witness) then went to the home of deceased, and found him there alone; that he went in and stayed there fifteen to twenty minutes; that deceased met some one back of the Knox barn, and stopped; that deceased was there quite a while and he (witness) heard him talking; that he (witness) met both defendants and they went in the direction of where deceased had stopped; that defendants talked with witness, then went toward Knox's store, stopped there for a second, and defendant Barker went on down to the house of deceased; that he stayed there a few seconds, came back to the Knox corner, called the other defendant, but received no answer, and went down towards where deceased was standing; that the latter was across the alley talking to some boys, when Barker went to the house; that deceased had been standing there talking to these boys quite a while, before defendants reached the corner; that he could not understand what was said, but heard the voices of both Barker and deceased, and in a little while he heard two reports from a gun, but did not hear any other report; that it wasn't very long from the time Barker went to the house, until the shots were fired; that he started down in the direction of the shooting, and met defendant Barker, who told witness to come and see that he had shot deceased; that he (witness) asked Barker what he did it for, and defendant made no answer that he could understand; that he went down and found Homer Kingcade was dead; that during the afternoon, defendant Barker talked with witness about being locked out of deceased's house; that Barker asked him if he could get a room at the home of witness, as he had been locked out, and he was getting tired of it; that witness declined to let him have a room; that defendants had been drinking some that afternoon; that Ethel Barker -- called Dinge -- and Carl Martin were with defendants at different times that evening; that Homer Kingade had been to Joplin during the afternoon and did not appear to be drunk; that he talked good common sense.
On cross-examination, witness testified, that Homer Kingcade was a big, powerful man; that he and deceased were friends, and had been together a good deal; that he (witness) had been convicted of crime a few times.
George Yeadon, the sheriff of Newton County, testified that he was in Neosho the night that Homer Kingcade was killed, and heard of the killing about nine o'clock; that he went over to the scene of the killing, as soon as he could, with Austin and Jesse Saxton; that he found deceased lying in the street, dead; that he examined the clothes of deceased, to see if he had a weapon, but found nothing but a pocket knife, which was in his little watch pocket, and was shut; that he found no other weapons on deceased; that he saw defendant Barker that night, after he was brought to the police station, and he looked like he had been drinking some; there was blood across the street to where deceased was lying.
On cross-examination, witness said he saw a big knife, a good ordinary knife, which he described above; that he thought deceased had on a coat, but was not certain; that the knife had two blades.
J. A Bigham, an undertaker at Neosho, testified that he took charge of the body of Homer Kingcade, after he was killed; that he stripped off the clothing of deceased, which consisted of a pair of brown trousers, a pair of blue overalls over the trousers, and a brown hat; that he did not remember about deceased's shirt, but thought he had a coat; that he found one gunshot wound in the left arm; that it went into the fleshy part of the left arm in front; and the bullet could have hit the heart or one of the large arteries; that he found another wound in the fleshy part of the back, where it had gone in, and come out; that he could not tell which way the ball ranged that...
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