The State v. Myers

• Decision Date: 03 July 1906
• Citation: 94 S.W. 242,198 Mo. 225
• Parties: THE STATE v. MAGGIE MYERS, Appellant
• Court: Missouri Supreme Court

94 S.W. 242

198 Mo. 225

THE STATE v. MAGGIE MYERS, Appellant

Supreme Court of Missouri, Division Two

July 3, 1906

Appeal from Clay Circuit Court. -- Hon. J. W. Alexander, Judge.

Affirmed.

Frank Gordon, R. B. Ruff, W. E. Fowler and Jos. S. Brooks for appellant.

(1) The court erred in refusing to grant defendant a continuance, on the ground that the names of the witnesses, Frank Hottman Nettie Hottman, Bertha Hottman, Ella Hottman and John Hottman, were not indorsed upon the information, and defendant was not otherwise notified that such witnesses were to be used against her till after the jury was impaneled and sworn to try the cause. Sec. 2517, R. S. 1899; State v Steifel, 106 Mo. 133; State v. Nettles, 153 Mo 469; State v. Roy, 83 Mo. 269; State v. Henderson, 186 Mo. 473; State v. Bailey, 88 S.W. 733; State v. Shreve, 137 Mo. 5. (2) The court erred in refusing to grant defendant a continuance on the ground that the following named witnesses were offered against her: Lydia Meinsen, Fannie McClaskey, J. S. Prewitt, F. W. Bowen, and John Stohl, and whose names were not endorsed on the information. (3) The court erred in overruling defendant's challenge for cause of the following named jurors: Ambrose Lancaster, Harry Golden, John V. Crossett, J. S. Borgnier, Samuel D. Wharton, Fred E. Miller, J. M. Soper, and John C. Capps, for the reason that said jurors testified on their voir dire examination that they had formed opinions, as to the guilt or innocence of defendant, from having read a copy of the confession of Frank Hottman, published in the Kansas City newspapers. State v. Foley, 144 Mo. 600; State v. Culler, 82 Mo. 625; State v. Hultz, 106 Mo. 41; State v. Robinson, 117 Mo. 649; sec. 2116, R. S. 1899. (4) The court erred in permitting the witness, Frank Hottman, to testify against defendant, over her objection, because it appeared by the preliminary examination of the witness as to his competency that by his testimony he was an accomplice, and had been convicted of murder in the first degree on an information charging him with the same crime for which defendant was on trial, and for the reason that said Frank Hottman was wholly incompetent as a witness in the case. State v. Miller, 100 Mo. 606; State v. Chyo Chiagk, 92 Mo. 395. (5) The court erred in permitting witnesses to testify as to acts and declarations of the witness Frank Hottman after the consummation of the crime. State v. Rose, 29 Mo. 32; State v. Duncan, 64 Mo. 262; State v. Barham, 82 Mo. 67; State v. Fredericks, 85 Mo. 145; State v. McGraw, 87 Mo. 161; State v. Reed, 85 Mo. 194; State v. Beaucleigh, 92 Mo. 490. (6) The court erred in admitting in evidence the confession of Frank Hottman made at Walla Walla, and in permitting it to be read to the jury. State v. Brennan, 164 Mo. 509; State v. Melrose, 98 Mo. 594; State v. Hildebrand, 105 Mo. 318; State v. Minton, 116 Mo. 605. (7) The court erred in admitting in evidence the letter and paper claimed to have been received by the witness, Mrs. Hottman, from one Ella Schultz, said letter and paper not being shown to have been written by defendant, and the matter therein contained being otherwise immaterial and irrelevant. (8) The court erred in refusing to grant defendant a new trial for the reason that it became a question in the trial of the case as to whether or not certain letters and papers were in the handwriting of defendant, and one of the jurors who tried the cause testified on his voir dire examination that he could not read or write. Sec. 4679, R. R. 1899; State v. Thompson, 141 Mo. 408; Bank v. Hoffman, 61 Mo.App. 203. (9) The indictment is insufficient and the demurrer and motion to quash filed by defendant should have been sustained. State v. Hagan, 164 Mo. 654; State v. Rector, 126 Mo. 328; State v. Furgerson, 152 Mo. 92. (10) The court erred in permitting the witness Stohl to testify that he saw the defendant and Frank Hottman at Higginsville together after the killing of the deceased. (11) The court erred in permitting the witness Nettie Hottman to testify over the objection of defendant, in answer to the following question: "How often did she write to him?" (meaning Frank Hottman). "How long after Clarence was killed was it before you burned up the letters of this defendant?" and to testify over the objection of defendant that "defendant did not attend her husband's funeral." (12) The court erred in permitting the witness Frank Hottman to testify over the objection of the defendant in answer to the following questions: "What wages did you get at the Confederate Home?" "Why did you come to Kansas City at that time? Who if anyone, invited you?" and "Had she written to you to come?" the questions having reference to a time long previous to the alleged conspiracy. (13) The call of the special term of court in which defendant was tried was not in compliance with the requirements of section 1606, Revised Statutes 1899, under which the call of the special term was made by the judge of the court. (14) The court erred in giving instructions 3 and 4 on behalf of the State.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.

(1) The court did not err in refusing to grant the defendant a continuance on the ground that the names of Frank Hottman, Nettie Hottman, Ella Hottman and John Hottman, witnesses for the State, were not indorsed upon the information, and that defendant was not otherwise notified that such witnesses were to be used against her until after the jury was impaneled and sworn to try the cause. It is manifest that defendant was not entitled to a continuance, as requested. After both sides had announced ready, when the trial had commenced and defendant had been placed in jeopardy, there was no other course open to the trial court but to overrule the objection of defendant and proceed to trial, and also to overrule the informal affidavit of defendant for a continuance of the case to the next term of court. If during the trial of the case it had been made to appear to the court that the State had taken an undue advantage of defendant by purposely refraining from indorsing on the information the names of the material witnesses for the State, it would nevertheless have been the duty of the court to have proceeded with the trial, and in case the jury returned a verdict of guilty to have granted a new trial to defendant for that reason. To have stopped the trial at that stage, or to have continued the cause until the next term, would have enabled the defendant to have successfully interposed the plea of former jeopardy on a subsequent trial for the same offense. Art. 2, sec. 23, Constitution; State v. Manning, 168 Mo. 418; Hill v. People, 26 Mich. 496; 1 Bish. New Crim. Prac., sec. 869a; Ballard v. State, 19 Neb. 609; R. S. 1899; sec. 2517; State v. Steifel, 106 Mo. 133; State v. Henderson, 186 Mo. 482; State v. Roy, 88 Mo. 268; State v. O'Day, 89 Mo. 559; State v. Nettles, 153 Mo. 464; State v. Tate, 156 Mo. 119; State v. Barrington, 198 Mo. 23. (2) The court did not err in retaining on the panel of forty, from which the jury to try the defendant was selected, Ambrose Lancaster, Harry Golden, John V. Crossett, J. S. Borgnier, Samuel D. Wharton, Fred E. Miller, J. M. Soper and John C. Capps. The record shows that upon the close of the voir dire examination of each of the jurors objected to the defendant made the general objection: "Defendant challenged this juror." No specific ground of challenge was given in any case. State v. Forsha, 88 S.W. 754. (3) The court did not err in permitting Frank Hottman to testify as a witness against the defendant. R. S. 1899, sec. 4680; State v. Riney, 137 Mo. 102; State v. Umble, 115 Mo. 461; State v. Walker, 98 Mo. 95; State v. Stewart, 142 Mo. 412; State v. Black, 143 Mo. 166. (4) No objection was made by the defendant at the time to the evidence as to the acts and declarations (except the confession) of Frank Hottman after the consummation of the crime, and "by a uniform line of decisions it has been held that this court will not pass upon the admissibility of evidence when the record showed that it was received without objection." State v. McCullum, 119 Mo. 474; State v. Lett, 85 Mo. 52; State v. Hope, 100 Mo. 347; State v. Foster, 115 Mo. 448. (5) The court did not err in admitting in evidence the confession of Frank Hottman made at Walla Walla, and in permitting it to be read to the jury. Hottman was cross-examined as to this confession, and parts of it read to the jury by counsel for defendant for the purpose of discrediting the witness. Upon objection by the State, counsel for defendant was informed by the court that such cross-examination as to the confession would make the entire confession admissible in evidence. State v. Phillips & Ross, 24 Mo. 485; Prewitt v. Martin, Admx., 59 Mo. 325; State v. Talbot, 73 Mo. 348; Wilkerson v. Eilers, 114 Mo. 245.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

At the April term, 1904, of the criminal court of Jackson county, Missouri, at Kansas City, Missouri, the prosecuting attorney of said county filed the following information:

"State of Missouri, County of Jackson.

"In the Criminal Court of Jackson County, Missouri, at Kansas City, Missouri, April Term, A. D. 1904.

"Now comes Roland Hughes, prosecuting attorney for the State of Missouri, in and for the body of the county of Jackson, and upon his official oath informs the court that Maggie Myers, alias Aggie Myers, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 11th day of May, 1904, at the county of Jackson, State of Missouri, in and upon one Clarence Myers then and there being feloniously, wilfully, deliberately,...