The State v. Francis

• Citation: 98 S.W. 11,199 Mo. 671
• Parties: THE STATE v. AUSTIN FRANCIS, Appellant
• Decision Date: 04 December 1906
• Court: Missouri Supreme Court

98 S.W. 11

199 Mo. 671

THE STATE v. AUSTIN FRANCIS, Appellant

Supreme Court of Missouri, Division Two

December 4, 1906

Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.

Reversed.

Hairgrove & Stubbs, Willis H. Leavitt and Oliver L. Wroughton for appellant.

(1) The information is not sufficient to charge murder in the first degree by poisoning because: (a) It does not charge that defendant intended or contrived to kill deceased. (b) It does not charge that deceased did not take the poison voluntarily and with suicidal intent. (c) It does not negative the fact that the poison was administered to deceased in aid of self destruction. (d) It does not charge that deceased did not take the poison knowing it to be poison, and of her own volition. (e) The information should charge killing by poison and other means in separate counts. Sec. 1822, R. S. 1899; State v. Wagner, 78 Mo. 647; State v McCollum, 44 Mo. 344; State v. Evans, 128 Mo 406; Ann v. State, 11 Humph. 159; State v Yarborough, 77 N.C. 524; Scheffer v. State, 22 Neb. 557; Bouts v. State, 8 O. St. 98; Hogan v. State, 10 O. St. 459; Robbins v. State, 8 O. St. 131; Snyder v. State, 59 Ind. 105; State v. McCormick, 27 Iowa 402; State v. Curtis, 70 Mo. 599. (2) The court erred in permitting witness Raymond Lyming to give any testimony because of his tender years, and his voir dire examination showed him to be incompetent. (3) There is a total failure of proof because the information charges in the same count the crime to have been committed by means of poisoning and by choking and strangling, and by a knife and a large heavy stone, while the evidence is that death resulted from carbolic acid poisoning and from no other cause. Phillips v. State, 68 Ala. 369; People v. Hyndman, 99 Cal. 1; Jordan v. People, 19 Col. 417; People v. Bemis, 51 Mich. 422; Newcomb v. State, 37 Miss. 383; State v. Brown, 106 N.C. 645; Williams v. State, 35 O. St. 175; Com. v. Buccieri, 153 Pa. St. 535. (4) The court erred in admitting any evidence to show that deceased was pregnant, as a motive for defendant to commit the crime charged, without it first having been shown that defendant knew of her condition. Stokes v. People, 53 N.Y. 164; State v. Shelton, 64 Iowa 333; Son v. Territory, 5 Okla. 526; Pence v. Com., 51 S.W. 801; Wigmore on Evid., sec. 389. (5) The court erred in admitting any evidence the purpose of which was to show criminal intimacy between defendant and deceased without first requiring the State to establish the corpus delicti. Wharton's Crim. Ev. (9 Ed.), secs. 47-48, pp. 48-49. (6) The evidence is not sufficient to sustain the verdict and judgment of the court. (a) The evidence fails to establish the corpus delicti. Wills on Circum. Ev. (Ed. 1905), p. 297; State v. Dickson, 78 Mo. 438; State v. Jones, 106 Mo. 302; State v. Knolls, 90 Mo.App. 240; State v. Baker, 144 Mo. 323; State v. White, 189 Mo. 339; State v. German, 54 Mo. 526; Yalooski v. State, 82 Wis. 580; State v. Gragg, 122 N.C. 1082; Abbott v. Com., 42 S.W. 344; State v. Millmeier, 102 Iowa 692; Harris v. State, 19 Am. St. 837; Gay v. State, 60 S.W. 771; State v. Billings, 81 Iowa 99; Monk v. State, 27 Tex.App. 450. (b) The evidence fails utterly to establish the guilt of the defendant or to connect him in any way with the crime charged, and indicates that the jury were actuated by passion and prejudice. State v. Morney, 92 S.W. 1117; State v. Crabtree, 170 Mo. 642; State v. Nesenhener, 164 Mo. 461; State v. Dickson, supra; State v. Jones, supra; State v. Knolls, supra; State v. Gragg, supra; State v. May, 142 Mo. 152; State v. Heusack, 189 Mo. 295; State v. Glahn, 97 Mo. 692; Tilley v. Com., 90 Va. 99; State v. Huff, 161 Mo. 487; State v. Bartlett, 170 Mo. 658. (c) The evidence fails to establish, and there was no attempt to prove, that defendant knew carbolic acid was a deadly poison. State v. Yarborough, 77 N.C. 524. (d) There is not a scintilla of evidence that defendant was alone with deceased at any time within such time that he might have been the father of her unborn child, and in the absence of such proof there can be no inference that he was responsible for or knew of her pregnancy.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) The information, which was duly verified by the affidavit of the prosecuting attorney, is sufficient in form and substance. It charged that defendant killed deceased by administering to her a deadly poison, by choking and strangling her, by giving to her a mortal wound with a knife and by giving to her a mortal wound with a large rock. It may readily be seen that poison may be administered to a person, and after becoming stupified by reason thereof, the person may be choked wounded with a knife and wounded with a rock; and all of said means contribute towards the killing. In fact, the evidence in this case fully justifies the conclusion that such happened on that evening near the bridge, when Winona Newton was murdered. That two or more methods of killing the deceased may be properly charged in one count in the indictment is now well settled. Wharton on Pleas and Precedents, sec. 129; State v. Barrington, 95 S.W. 258. (2) No error was committed in allowing the State's witness to testify to the fact that the deceased stayed all day at the defendant's home while defendant's mother was away; that they were there together all day; and that she heard deceased say "don't" to the defendant. It is true this evidence did not prove that the defendant murdered the deceased, but it was a circumstance which the jury had a right to consider; and it answered one of the arguments now made by appellant's counsel, that there is no proof that defendant and deceased were ever together at any unusual time or place. It was unusual for defendant and deceased to spend the day together at defendant's home, in the absence of defendant's mother; and this circumstance showed that an intimacy existed between them. However, after hearing the evidence, the trial court ordered that the same be stricken out; so the error was cured, if error had been committed. (3) No error was committed by the trial court in permitting State's witness, Raymond Lyming, to testify, he being of tender years. Before giving his evidence, counsel for the defendant, and also the court, asked him various questions, and the court was satisfied that he was not only intelligent, but truthful. Such a matter must be left to the sound discretion of the trial court, and this court can not say that, in this instance, there was an abuse of that discretion. Rapalje on Law of Witnesses, sec. 7; R. S. 1899, sec. 4659. (4) Again, counsel for the appellant assume a contradictory position when they object to State's witness J. D. King testifying that he saw defendant in company with a little young woman about six o'clock one evening, going south on Baltimore avenue; and that the young woman had brown hair. In another place in their argument counsel insist that there was no proof that defendant and deceased were seen together at a time when they could have been guilty of adultery; and then they object to proof showing that they were together alone, at different times and different places. As heretofore suggested, this evidence was proper as tending to show an intimacy between them -- an intimacy which existed in opposition to the father's wishes, which wishes were well known to the defendant. (5) It is impossible to see how even ardent and sympathetic counsel can say that there is no evidence to support the verdict of the jury. The intimacy that existed between the defendant and the deceased, the length of time that said intimacy existed, the visits that she paid defendant, the clandestine meetings that took place between them, the efforts that defendant made to see deceased after dark at the bridge, at the coal shed and elsewhere, his repeated invitations to her to meet him there, their correspondence, the contents of the letters, the use of the fictitious names, the pregnant condition of deceased, the fact that deceased was calling on the defendant for money with which to go to see a physician and to buy medicine, and the fact that the defendant knew that the deceased had passed two of her monthly periods, conclusively show that the defendant was the one responsible for the ruin of this little girl. In this connection, it should be remembered that the defendant said to a friend of his, "I have got to hurry up and meet the kid [referring to the deceased] between five and six; poor Winona, she don't know right from wrong, but she is a damn good kid to be with." In his written confession the defendant stated that his mother knew of the sickly condition of the deceased, that his mother furnished her with money and with medicine, and yet there is not a particle of evidence that tends to show that the mother ever heard of deceased's condition or ever told her or wrote to her what medicine to use. If the mother had learned any fact from deceased, and if the mother had sent her any money or medicine, it is strange indeed that that mother remained silent on the subject when her only son was on trial for his life. Being responsible for her ruin, it was natural that the defendant desired to cover up his first crime, and, like many others before him, he resorted to murder. It can, therefore, be readily understood why defendant was continually inviting the deceased to meet him at nights, away from her home; and also why the defendant was hiding around in the Newton coal shed and elsewhere in the dead hour of the night. And it is also easy to understand why the defendant failed to say or do anything to deceased on those nights because her father or her brother or her sister was with her. The "red-ink...