[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal
from Perry Circuit Court. -- Hon. James D. Fox, Judge.
The
defendant was tried for the crime of murder in the first
degree, resulting, after a severance granted, in conviction
of the second degree of that offense; punishment, ten years
in the penitentiary.
The
charging part and conclusion of the indictment under which
the trial occurred are as follows:
"That
Henry Willis on the first day of June, A. D. 1892, at the
county of Perry and state of Missouri, in and upon the body
of one Charles Cargile, then and there being, feloniously
wilfully, deliberately, premeditatedly, on purpose and of his
malice aforethought, did make an assault, and that the said
Henry Willis some heavy weapon or instrument, to these jurors
unknown, which said instrument or weapon, he, the said Henry
Willis, in his hand, then and there had and held, then and
there feloniously, wilfully, deliberately, premeditatedly, on
purpose and of his malice afore-thought, did forcibly strike
and beat the said Charles Cargile in and upon the body of the
said Charles Cargile, fracturing and breaking the neck of the
said Charles Cargile, giving to him, the said Charles
Cargile, a mortal injury, of which said mortal injury he, the
said Charles Cargile, did then and there instantly die; and
that John Rector then and there, feloniously, wilfully
deliberately, premeditatedly, on purpose and of his malice
aforethought, was present, aiding, helping, abetting,
comforting, assisting and maintaining the said Henry Willis
in the felony and murder aforesaid, in manner and form,
aforesaid, to do and commit.
"And
the jurors aforesaid, upon their oath aforesaid, do say that
the said Henry Willis and John Rector him, the said Charles
Cargile, in manner and form aforesaid did kill and murder,
against the peace and dignity of the state.
John B.
Davis,
"Prosecuting
Attorney."
The
substance of the testimony in this case as to how Cargile
came to his death is embodied in the following statement
Sheriff Anderson testified to as having been made by Willis
to him:
"L.
M. Anderson being produced, sworn and examined on the part of
the state, testified as follows: I am the sheriff and jailer
of Perry county, and as such have had defendant and Henry
Willis in my custody since their commitment to jail on the
charge of murdering Charles Cargile. Rector made no statement
to me about the difficulty with Cargile, but Willis made a
statement in the presence of Rector. Willis said that they
(meaning the Rector family including Willis) had been run out
of their shanty by the high water, and that on the morning of
the day Cargile died (the water having gone down before that)
he and John Rector, Ed. Rector and old man Rector went up to
the cabin to clean it out. That when they got there old man
Cargile was there. That Cargile said to Willis, 'It looks
pretty luxious here.' That Willis replied, 'If you
call mud and water luxious, I guess it is.' That Cargile
then said to Willis, 'Did you see any of my posts down
here?' That Willis answered, 'There aint any of your
posts here.' That Cargile then said to Willis, 'You
are a damned lying son of a bitch.' That at the time of
saying this Cargile drew his knife. That Willis then ran at
Cargile and hit him with his fist on the right side of the
neck. That Willis then ran back and took the hoe off of
Rector's shoulder and hit Cargile on the back with it as
Cargile was coming at him with an open knife, and that he
then ran after Cargile as the latter started to run and threw
the hoe at him and hit him on the hip. That Cargile, after
running a little piece, turned around and said to Willis,
'You've played hell.' Willis made the statements
detailed by me a few days after he was put in jail, some time
in the fore part of June, 1892, and has made the same
statement to me at different times since then. He made the
statement of the occurrence given by me before he had had any
opportunity of seeing and consulting a lawyer. He and Rector
had no counsel until the court appointed counsel at the
October term, 1892."
The
testimony of Edward Rector, a brother of defendant, in its
material portions is as follows: "On the morning of the
day Cargile died, my father, William Rector, my brother, John
Rector, Henry Willis and myself, went to our shanty to clean
it out so that we could move back into it. We had been run
out of the shanty some weeks before that by high water and
had been camping at a high place in a tent some three or four
hundred yards south of the shanty. We took a hoe along with
us to scrape the mud out of the shanty. John Rector carried
the hoe and walked in front. Willis was close behind him, and
my father and I last. When we got to the shanty we found
Charles Cargile there. He was standing by a pen about fifteen
or twenty steps from the shanty. He spoke to Willis and
Willis stopped to talk to him. My father and I passed by them
and went on into the shanty. John Rector, the defendant, also
passed by them and came as far as the shanty door. About the
time that we got into the shanty I heard Cargile call Henry
Willis a damned lying son of a bitch, and threaten to cut his
guts out. I then looked out of the shanty door and saw Henry
Willis backing toward the shanty, while Cargile was coming at
him with his knife open. Willis backed quickly until he
reached the front of the shanty door where John Rector was
standing with the hoe in his hand. Willis then grabbed the
hoe out of John's hands and struck Cargile with it on the
left side. Cargile then turned to run and Willis took two or
three steps after him, and threw the hoe at him, striking him
on the hip. Cargile continued to run until he got inside of
the field, when he turned and said to Willis: 'You've
played hell, God damn you!' The hoe with which Willis
struck Cargile was a light garden hoe. On the day before this
difficulty, John Long told Henry Willis and John Rector in my
presence that Charles Cargile, on the Saturday previous, had
said he intended to shoot them (Rector and Willis) on sight.
John Rector, the defendant, took no part in the difficulty
mentioned by me. He did not give Willis the hoe to strike
Cargile with. Willis snatched it from him. If Willis had not
struck Cargile with the hoe, Cargile would have cut him with
the knife. Cargile was close to him and coming at him as he
backed and struck with the hoe. Cargile held the knife open
and drawn ready to strike. It was a long blade. (Here witness
is shown the knife identified by Willie Cargile and others.)
That looks like the knife Cargile had. He had the big blade
open when he was coming at Willis. If Willis hadn't
backed very fast, Cargile would have cut him before he got
hold of the hoe. I did not see Cargile fall in the field
after the difficulty was over. I went back into the shanty
and helped clean it out. The door of the shanty is on the
south side. Cargile ran around the house and went north
towards his house after the fight. I did not see Willis hit
Cargile with his fist. I suppose this took place before I
looked out of the shanty. John Rector and Henry Willis helped
us rake mud out of the shanty for about an hour after the
fight was over. They then took the boat and said they were
going to Peter Tucker's. They came back about 4
o'clock, P. M. During the day we got moved back into the
shanty. John and Willis stayed around the shanty that evening
and night. We heard two shots fired at about 8 o'clock.
We all went to bed that evening at about an hour and a half
after sundown. When we heard the shots we looked out but did
not see or hear anything. * * * At about four o'clock on
the afternoon of the day after the inquest, John Rector,
Henry Willis and I started to Peter Tucker's after some
tobacco. We were in the boat and rowing across the bayou when
we heard two shots, one right after the other, close to us,
and heard the shot strike around us. One shot passed through
my hat. We looked and saw several men coming toward us. After
the shooting commenced, Willis said, 'Let's jump out,
or they will hit us.' Accordingly, John Rector and Willis
jumped out and waded through the water. I staid in the boat.
When the shooting commenced John was rowing, Willis was
sitting in the stern, and I in the bow of the boat. The first
I heard was the shooting. They never halted us before they
shot. I did not hear anybody halloo halt until after two
shots were fired. I did not know anybody except me and John
and Henry were around until I heard the guns go off and heard
the shot hitting around us. John and Henry jumped out and ran
in order to keep from being shot."
The
testimony of Willis, the co-indictee of defendant, in so far
as important to be quoted, is this: "On the morning of
the difficulty at about 7 or 8 o'clock I went with my
cousins John and Ed Rector and my uncle William Rector from
our tent to the shanty. We went to clean the mud out of the
shanty in order to move back into it. The water then had gone
down and left the shanty. John Rector carried a small garden
hoe on his shoulder to be used in scraping the mud out of the
shanty. When we neared the shanty we saw Cargile standing by
a log pen close to the shanty. I was in front and he spoke to
me saying: 'Good morning, Willis.' I said good
morning to answer him. He said, 'This looks bilious down
here.' I said 'Yes.' He then began to talk about
some posts he had lost by the overflow and asked me if I had
seen anything of them. I told him no, that there were none of
his posts about there. He then called me a damned liar and
drew back to hit me. He was in reach of me, and in order to
prevent him from striking me I hit...
