The State v. Moore
| Decision Date | 08 May 1900 |
| Citation | 56 S.W. 883,156 Mo. 204 |
| Parties | THE STATE v. JOHN W. MOORE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. J. L. Fort, Judge.
Affirmed.
J. P Tribble and T. R. R. Ely for appellant.
(1) The court erred in permitting witness, Matilda Thorn, to testify to a conversation between herself and her husband on the morning of the difficulty, not in the presence of Moore, for the reason, that such conversation forms no part of the res gestae, and was not proper matter for the consideration of the jury in this cause. And because it threw no light whatever upon the actions and conduct of the deceased and defendant afterwards. And because said testimony was hearsay. Cole v. McDaniel, 33 Mo. 363; Fogue v Burgess, 71 Mo. 389; State v. McQuire, 113 Mo 670; State v. Minoth, 116 Mo. 605; State v. Curtis, 70 Mo. 594; State v. McCoy, 111 Mo. 517. (2) The admission of the written testimony of witness Dye, taken at the preliminary trial before G. W. Quinn, in this case, was error, for the reasons: (a) There was no proper proof that the witness Dye, who had testified before the committing magistrate, was the identical and same person who afterwards died. (b) The evidence was, that the paper, or written testimony introduced in evidence, had not been in the possession of the proper person during the interval between the date of the preliminary trial and the trial in the circuit court. (3) The court should have permitted witness Brooks to detail the entire statement made to him by the defendant at the time the defendant surrendered to him. He had been permitted to detail the statement of the defendant down to a point touching the defendant's admission of the killing of the deceased, Thorn, and there, was stopped from further testifying as to any of the details of the killing, although narrated in the same conversation. Part of the conversation having been admitted by the court and heard by the jury, the defendant was entitled to have the whole conversation given to the jury for what it was worth. State v. Curtis, 70 Mo. 594.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
The deposition of James Dye taken before the magistrate at the preliminary hearing of this cause, was properly admitted, Dye having died in the meantime. This evidence was given in the presence of accused at the preliminary hearing, the witness was there cross-examined by defendant's attorney, the testimony was reduced to writing, and was subscribed by the witness and sworn to by him before the magistrate. State v. McO'Blenis, 24 Mo. 437; State v. Houser, 26 Mo. 131; State v. Harman, 27 Mo. 120. Defendant ignored the evidence when he stated in his objection to this testimony that there was no proof that this particular witness, who gave the testimony, was dead.
The defendant was indicted for murder in the first degree at the July term, 1898, of the circuit court of Dunklin county. He was duly arraigned at the January term, 1899, and his plea of not guilty entered. At the same term he was tried and convicted of murder in the second degree and his punishment assessed at ninety-nine years in the penitentiary. His motions for new trial and in arrest were filed, heard and overruled and he appealed to this court.
The indictment is in the approved form and is in all respects sufficient. Indeed it is not attacked on this appeal. The record proper in other respects is without error.
The evidence disclosed the following state of facts. On the ninth day of October, 1897, the defendant shot and killed John Thorn, alias John Vaughan, near the town of Holcomb in Dunklin county of this State. The defendant was a widower about sixty-two years of age, and lived on a farm. He had employed deceased Thorn and the latter's wife to keep house and do other work for him. A disagreement arose between deceased and defendant, and defendant desired deceased and his wife to leave his premises.
On Friday before the homicide on Saturday, defendant locked his house so that deceased and his wife could not enter. They slept that night at Russell Rice's. Saturday morning deceased left to return a horse he had borrowed from a neighbor named Watts. He owned a horse but he had loaned or hired it to a Mr. Case to work on the levee. He got his own horse about noon and led it to the residence of defendant Moore, whither his wife had returned from Rice's house that morning.
Mrs. Thorn, or Vaughan, testified that when her husband returned he came into the principal inclosure and led his horse to the lot gate and was at the gate when he was shot. She didn't see defendant Moore but heard him say something which she could not distinguish and thereupon her husband answered, "Mr. Moore, we are not trying to bulldoze over you." She saw her husband take hold of the gate to the lot with one hand, and he led the horse with the other. He stepped back two steps and then the gun fired, and immediately she looked and saw Moore, the defendant, take the gun from his shoulder. He was standing about midway of the barn in the lot. Her husband sprang up when he was shot and said to her, "Come here quick." He turned and walked about twenty feet and fell. He died almost instantly. The evidence disclosed no arms on the person of deceased, and his wife testified he had never owned a pistol during their marriage. Moore left immediately after firing the shot.
The testimony of James Dye tended to show that for three hours prior to the killing he and his son-in-law Dobbins remained with defendant at his barn at his request, to await the return of deceased, to see what deceased would do when he came back. When they saw deceased coming leading his horse, defendant got up and stepped across the hall of the barn and reached into the saddle room and got his gun. He then went into the barn lot. Before deceased opened the lot gate defendant said to him, "I don't want you in here." Deceased opened the gate and got partly in the lot, and deceased said to him, "Are you going to stay out?" and deceased answered, "We are not bulldozing you," and thereupon he heard the report of the gun, saw deceased turn and call his wife. Moore saddled his horse and rode off, and witness and his son-in-law, Dobbins, went over to where deceased lay dead on the ground. He was shot through the breast. When deceased was shot he had one hand on the gate and held his horse's bridle in the other.
A. L. McDonald testified that he was having some work done on the St. Francois levee and defendant was to furnish him a team and a driver; that he employed deceased to hold the plow. On or about the 3d or 5th of October he heard a wordy controversy between deceased and defendant as to the right of deceased to assist in the plowing with defendant's team. Defendant forbade him to touch the plow, and deceased appealed to witness who told deceased he would have to give way. At that deceased said he could slap the defendant's jaws, and would do it but for his gray hairs. That ended the dispute at that time.
Deceased left the levee and about two hours later returned and demanded a settlement with defendant. Defendant denied he owed him anything. Deceased threatened to sue him if he didn't settle. Whereupon McDonald again acted as mediator. He took the accounts and there was a balance due deceased of 35 cents on the running account, and his wages for three or five days at 75 cents or $ 1 per day. Thereupon defendant said, you wait till night and I will get Willie (his son) and settle with you if you will settle. Deceased said, "You have been trying for a week to beat me out of my job and have acted a scoundrel with me." Whereupon Moore, the defendant, drew up his fist as if to strike and deceased said, "Hit." Defendant said, "No, you hit." Deceased said, The difficulty ended with this.
In the evening of that day defendant beckoned McDonald aside and said, "I want to talk to you," and they went about forty feet and sat down on a log. Defendant said he was going to kill Thorn if he didn't get out of his house. Witness replied, "You must not do that." He said he didn't want to be run over. "I told him to take his things out of the house Thorn occupied," and he said he had done that. "Well," said McDonald,
On the day before the killing defendant borrowed a Winchester rifle, calibre 38, from S. J. Winston, and after the killing some one told Winston his gun was in the back room of the postoffice. He went there and got it. It had an empty shell in it. The postmortem disclosed that the ball passed through the right side, the chest and the lung, and came out on the right side of the back bone. It was a mortal wound.
Other witnesses corroborated the evidence for the State as to the occurrence at the levee.
After the defendant shot deceased he rode to the village of Holcomb and told the constable, Mr. Brooks, he had shot and killed Thorn, and surrendered himself.
Two witnesses testified that at one time deceased had a pistol but were so indefinite as to the time that their testimony must have had slight effect on the issue.
Another witness, Jones, saw deceased pushing his handkerchief in his pocket and drew his own conclusion that he had something else under the handkerchief that he took to be a pistol, on the morning of the homicide, and so informed defendant, and defendant testified that Jones so told him.
Some evidence was also given as to...
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