The State v. Johnson

• Decision Date: 20 December 1926
• Docket Number: 27336
• Citation: 289 S.W. 789,316 Mo. 104
• Parties: The State v. Ernest Johnson, Appellant
• Court: Missouri Supreme Court

289 S.W. 789

316 Mo. 104

The State v. Ernest Johnson, Appellant

No. 27336

Supreme Court of Missouri

December 20, 1926

Appeal from Laclede Circuit Court; Hon. C. H. Skinker Judge.

Affirmed.

Phil M Donnelly and Page & Barrett for appellant.

(1) All the circumstances proven must be consistent with each other consistent with the hypothesis that accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent, and with every other hypothesis except that of guilt. State v. Francis, 199 Mo. 671; State v. Worney, 196 Mo. 43; State v. Miller, 264 Mo. 441; State v. Singleton, 294 Mo. 346. Circumstantial evidence is insufficient to convict if it can be reconciled with a theory that some person other than the defendant may have done the killing, where such theory is based on the evidence. Bowen v. State, 140 Ala. 65. In order to warrant a conviction on circumstantial evidence it is necessary to prove the circumstances by facts and not by circumstances. A presumption of fact cannot be based upon a presumption. State v. Lackland, 136 Mo. 26; Burtch v. Wabash Ry. Co., 236 S.W. 343; State v. Cox, 250 S.W. 551. Every essential fact in the chain of circumstantial evidence must be proven to warrant a conviction. State v. Crabtree, 170 Mo. 642; State v. Ruckman, 253 Mo. 487. (2) The character of footprints at the scene of a crime and the fact that they correspond with those made by the defendant may be put in evidence, but such evidence is not by itself of any independent strength, but is admissible with other proof if tending to make out a case. 2 Wharton's Criminal Evidence (10 Ed.) pp. 1553, 1554, 1799. At least, tracks of this character are of no value unless sustained by proof that the shoe in question was worn by the accused at the particular time. 2 Wharton's Criminal Evidence (10 Ed.) p. 1555; Cummings v. State, 110 Ga. 293. The above ruling is especially true unless there is some peculiarity in the tracks sufficient to distinguish them from the tracks of other men. Lindsey v. State, 70 S.E. 114.

North T. Gentry, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for respondent.

(1) Circumstantial evidence, standing alone, is sufficient to support a conviction for the felony of murder. Such a conviction is justified when the corpus delicti and the appellant's guilty agency in the crime have been established. When a conviction for a felony rests altogether upon circumstantial evidence, as in this case, the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt. State v. Singleton, 294 Mo. 347; State v. Morney, 196 Mo. 49; 12 Cyc. 488. (a) This court, in passing on the sufficiency of the evidence, to sustain such a conviction, takes and considers the State's substantial testimony which tends to implicate the accused, as being true, and every legitimate inference which may reasonably be drawn from it is indulged. State v. Fogg, 206 Mo. 696; State v. Page, 212 Mo. 224; State v. Sassaman, 214 Mo. 695; State v. Concelia, 250 Mo. 411; State v. Millsap, 276 S.W. 625. (b) Evidence of threats by appellant against deceased's life were admissible for the purpose of showing motive for the crime. State v. Ruckman, 253 Mo. 487; State v. Millsap, supra. (c) The evidence surrounding the shoes, the overshoes, and the foot-tracks at the scene of the killing, was admissible and competent to show the consistency of all the circumstances of the hypothesis of appellant's guilt. This evidence, when considered in connection with the evidence of appellant's threats against deceased's life, makes a complete chain of circumstantial evidence pointing unerringly to appellant's guilt. State v. Millsap, supra.

OPINION

White, J.

An indictment was returned in the Circuit Court of Wright County charging the defendant with murder in the first degree in killing one Silas Moody, December 23, 1923.

On application of defendant a change of venue was awarded to Laclede County, where, September 11, 1925, he was found guilty and his punishment assessed at imprisonment in the penitentiary for life. Upon that verdict judgment was rendered and the defendant appealed.

One O. R. Millsap, also charged with the murder, was convicted as accessory before the fact, and on appeal the judgment against him was affirmed by this court. [State v. Millsap, 310 Mo. 500, 276 S.W. 625.] The evidence in this case, upon which conviction was had, points to the defendant as the person who actually killed Silas Moody.

On December 23, 1923, Moody was at home with his wife and baby and his wife's mother. Between eight and nine o'clock, while playing with his baby, a load from a shotgun was fired through a window, the shot striking him in the neck and face. He fell, never regained consciousness, and died within a short time. His wife, Susie Moody, picked up the baby, handed it to her mother, seized a Winchester rifle, ran out of doors in her night clothes, barefooted, and fired two shots, although she did not see anybody. She gave utterance to some expletives while she ran, which indicated that she was ready to kill the murderer. Afterwards the defendant and Millsap were arrested, and Millsap tried and convicted, as stated.

I. The principal point upon which the appellant relies for reversal is that the evidence is insufficient to warrant submission of the case to the jury. While the evidence is practically the same in essential particulars as that held sufficient in the Millsap case, there are some features upon which the appellant places great stress, and we find it necessary to consider them at some length.

The night of the killing the ground was muddy and soft. The next morning it was frozen. The tracks of someone wearing overshoes were discovered near the window through which the shot came. Apparently the murderer stood with one foot advanced to within two or three feet of the window and the other foot drawn back as if standing sidewise to the window, -- the usual position in firing a gun. As the tracks approached the spot they appeared as if the man had been walking. In going away he seemed to have been running: the tracks were further apart, they were deeper in the mud, and in one place the foot slipped in the mud. The window through which the shot was fired was on the south side of the house. The tracks passed around to the west side of the house and ran towards the woods in that direction.

In defense it was shown that several people were at the house soon after Moody was killed, and numerous people were there the next morning. Some came and stayed all night. One Moses Gray, constable, was one of the first to arrive. He testified that he told people to stay back, and he did the best he could to keep them back. There was no attempt to show that anyone walked on or marred the tracks that night. The evidence showed that the tracks were clear and distinct in the frozen ground next morning.

One Lonnie Gray testified that he lived a quarter of a mile from Silas Moody's house; that he had been hunting that day, and as he returned home between nine and ten o'clock he found a rubber overshoe in his yard, lying near his doorstep. Presently he was notified that Silas Moody was shot; he went to the house, remained there until morning, returned home and found the mate to the rubber shoe. He delivered both to the constable and there was evidence to show that they were kept by the officers until the trial. These overshoes were taken, placed in the tracks around the Moody house, and fitted exactly. This is testified to by a number of witnesses. The sheriff later arrested the defendant and Millsap. Whether it was the same day, or later, the record does not show clearly. The defendant had on a pair of shoes which the sheriff took and retained, and those shoes were produced at the trial. The shoes and the overshoes were before the grand jury at the time the case was under consideration. The shoes, taken off the defendant, which some of the witnesses called "dress shoes," showed they had been worn with rubbers over them.

The rubber shoes found by Lonnie Gray had been worn upon shoes wider than the rubber shoes. The shoes taken off the defendant had the "Goodyear Wingfoot" rubber heels and Ponca soles. The imprint of such rubber heels was in the overshoes at the time the matter was before the grand jury. There was also a bent tack in one of the shoes, and a corresponding imprint in the overshoe. Several members of the grand jury returning the indictment, the sheriff, and several other witnesses testified to the comparison of the shoes and overshoes. All said that immediately after the murder the bent tack was in the shoe which apparently made the imprint in the overshoe; that the lettering in the rubber heels of the shoes was plainly to be seen, and the imprint of the letters was observable in the overshoes. The State further produced evidence to show that Walter Johnson, brother of the defendant Ernest Johnson, came to a store a day or two before the murder, with Ernest Johnson, and bought overshoes of the same size and kind as those produced in evidence. The defendant proved by the witness that rubber heels of that kind and shoes of that size were common in the community.

In order to show a motive for the crime the State introduced one McIntosh who lived at Coffeyville, Kansas. He testified that in 1923, in conversation with the defendant, the latter said no one had turned him in for making whiskey but Silas Moody and if Moody ever crossed his path he would never tell on anybody else. It was practically the same evidence as that offered in the M...