The State v. Snow
| Decision Date | 18 March 1922 |
| Citation | 238 S.W. 1069,293 Mo. 143 |
| Parties | THE STATE v. O. B. SNOW, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. A. D. Burns, Judge.
Reversed and remanded.
Barney E. Reilley and Phil Slatterly for appellant; W. G. Lynch of counsel.
(1) An intent to kill is essential to murder in either degree. State v. Kyles, 153 S.W. 1050; State v Kinder, 184 Mo. 294; State v. Foster, 61 Mo 554; State v. Underwood, 57 Mo. 49; State v McKinzie, 102 Mo. 628; State v. Gassert, 65 Mo. 355, 356, 4 Mo.App. 57; State v. Wieners, 66 Mo. 23. (2) An intent to kill cannot be presumed in the absence of a deadly weapon. State v. Gassert, 4 Mo.App. 57; State v. Harris, 108 S.W. 33. (3) In the absence of a deadly weapon, nothing more appearing than the death, the intent to kill is not shown. State v. Clancy, 125 S.W. 459; State v. Wansong, 195 S.W. 1002. (4) An intent to kill cannot be presumed from the mere fact of killing. Maher v. People, 10 Mich. 212; State v. Porter, 34 Iowa 131. (5) A deadly weapon is one likely to produce death. State v. Harris, 108 S.W. 33; State v. Bowles, 146 Mo. 13; State v. Belfiglio, 134 S.W. 598. (6) The deadly character of the weapon should have been submitted to the jury. State v. Harris, 108 S.W. 33; State v. Belfiglio, 134 S.W. 598; State v. Clancy, 125 S.W. 459; State v. Stubblefield, 144 S.W. 405. (7) The question of intent is peculiarly within the province of the jury. State v. Miner, 92 S.W. 468, 469; 21 Cyc. 1027, 1036, 1039; State v. Stewart, 49 Mo. 420. (8) There was no malice shown in this case. State v. Wieners, 66 Mo. 20; State v. Meyers, 121 S.W. 135, 136. (9) There was no express malice. State v. Wieners, 66 Mo. 20; State v. Harris, 108 S.W. 33. (10) In the absence of a deadly weapon, murder cannot be presumed. State v. Harris, 108 S.W. 33. (11) Premeditation is never presumed. State v. Foster, 61 Mo. 554; State v. Garrett, 207 S.W. 784; State v. Kyles, 153 S.W. 1050. (12) Deliberation was not shown. State v. Speyer, 106 S.W. 509; State v. Young, 119 Mo. 524; State v. Silk, 145 Mo. 248; State v. Kyles, 153 Mo. 1050; State v. Liolios, 285 Mo. 1; State v. Frazier, 137 Mo. 340. (13) Unless the evidence discloses deliberation, the jury should not be instructed on murder in the first degree. State v. Kyles, 153 S.W. 1050. (14) The jury cannot determine as to the degree of murder unless evidence of both degrees is placed before them. State v. Kyles, 153 S.W. 1050. (15) The jury should have been instructed on manslaughter. State v. Wilson, 98 Mo. 448; State v. Gassert, 65 Mo. 353, 4 Mo.App. 44; State v. Kinder, 184 Mo. 294; State v. Wieners, 66 Mo. 20; Comm. v. Webster, 5 Cush. (Mass.) 295; 13 R. C. L. 783; 21 Cyc. 760, 762; State v. Berkley, 109 Mo. 674; Sec. 4468, R. S. 1909; Sec. 3326, R. S. 1919; State v. Lockwood, 119 Mo. 463; State v. Hermann, 117 Mo. 635; State v. Elliott, 98 Mo. 156. (16) There was nothing more than a suspicion that the poker exhibited to the jury was used in the killing, and suspicion is not evidence. State v. Tracey, 225 S.W. 1017.
Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.
The instructions given by the court fully and correctly declared all the law applicable to the evidence in this case and were very favorable to defendant. State v. May, 172 Mo. 638; State v. Howell, 117 Mo. 344; State v. McCarver, 194 Mo. 727, 743.
-- Defendant, appellant herein, was tried for first degree murder, was convicted of the same, was sentenced on the verdict to life imprisonment in the penitentiary, and has appealed.
On Tuesday, October 26, 1920, one Dick Wamsley, aged about twenty years old, a resident of the city of Cameron, was found dead in a house owned and sometimes occupied by the defendant and located in that city. His skull was fractured just above the left ear from a blow from some blunt instrument, and other wounds were found on the body. His body, fully clothed, was discovered lying on a tarpaulin spread over a blanket upon a bed and springs. Wamsley's Ford automobile was found in the street adjacent to defendant's house. Considerable blood was found on the floor of the rear seat and some of it had flowed down over the running board of the car. There were also blood stains on the front lamps. There was no evidence of any struggle in the house. The presence of a pool of blood on the tarpaulin under deceased's head, some of which had leaked through onto the floor, tended to show that he was still alive when he was placed on the bed.
One George Sweat testified that he was watching defendant's house from about midnight of Friday, October 22nd, in the hope of securing evidence against defendant for the purpose of prosecuting him for selling liquor, and that about two o'clock in the morning he saw defendant drive up to his house in an automobile and carry some one into the house, and shortly afterwards saw him come out and then heard defendant say, "You son-of-a-bitch, you will not talk now." Deceased's car remained standing in the street from that time until the body was discovered on Tuesday.
The last time deceased was seen alive was late on Friday night, October 22nd. He was then in the company of the defendant. Defendant and the deceased had been friends for some time and were together frequently. No trouble between them is shown to have existed. Defendant, and probably deceased, had been drinking that night. Deceased had been at defendant's house earlier in the evening and drove away after nine o'clock with the defendant and one Wiss. Deceased and defendant were again seen together about ten o'clock by one Coon, who had been previously with them and left them when they started to drive out to the Harris school house, where a box supper was being given. Defendant and some other men in the car arrived there just as the teacher was locking up the school house. She then entered an automobile and rode into Cameron, and the automobile in which defendant was riding with the other men followed. She testified that she thought defendant got out of the automobile in front of the bank in Cameron.
It does not appear necessary to set out the testimony as to defendant's whereabouts at various times during the night. At about 4:45 or 5 o'clock Saturday morning defendant was seen at Cameron Junction, where he boarded a train at 5:15 a. m. for St. Joseph. He had first bought a ticket for Kansas City and later changed it for one to St. Joseph.
One L. B. Snider, an uncle of defendant by marriage, testified that he met defendant in Hamilton on Saturday afternoon, October 23rd, about three or four o'clock. Hamilton is in Caldwell County, east of Clinton, while St. Joseph is west of Clinton. Defendant told Snider he had come from St. Joseph on the morning train. Defendant went home with Snider Saturday night and remained until Tuesday evening, when he and Snider went together to Cameron. Defendant appeared nervous while at Snider's home, and when they neared Cameron he did not want to get off the train, and when asked by Snider for the reason said, "Just the way things were," and that he was afraid they would lock him up. Riding in a taxi-cab towards defendant's house the driver told defendant and Snider of the finding of Wamsley's dead body in defendant's house, and then asked defendant if he still wanted to go on down. Defendant said, "No." They then turned around and went up town to the restaurant. There defendant and Snider procured a newspaper and read an account of Wamsley's death. Defendant then asked Snider to swear that he and his two boys took him out to Cameron on Friday night, as this was the only way he could get out of it. After his arrest defendant was taken to his home and expressed an unwillingness to enter the room where the body was found until he was assured that it had been removed. Snider was later charged as an accomplice of defendant and was placed in a cell in the county jail adjoining the one in which defendant was confined. They were the only prisoners in the jail at the time. They were thereafter taken to the sheriff's office, and during their absence a dictagraph was installed in each of the cells by one O'Leary, a detective, and these instruments were connected by wires leading to two receivers in the court house nearby, where O'Leary and the sheriff, Clarence David, listened to conversations between defendant and Snider during the night after they were returned to their cells. Among other things, they heard defendant tell Snider that he knew he (Snider) had nothing to do with the killing and advised him to bring suit for damages against the officers. Later, they heard defendant tell Snider that he killed deceased with a poker. They also heard defendant tell Snider that he had a knife concealed in his cell which he intended to use on the sheriff. The next day a knife was found in defendant's cell.
Snider was probably used as a decoy, or as such person is sometimes called in the parlance of the under world, a "stool pigeon." At any rate, he testified for the State at the trial and corroborated what O'Leary and Sheriff David testified to having heard over the dictagraph as to defendant killing deceased with a poker. Defendant did not testify as a witness.
We have attempted to state the facts as briefly as possible. No question is raised as to the sufficiency of the evidence to submit the case to a jury as to the criminal responsibility of defendant for the homicide. Appellant contends there is not sufficient proof to entitle the State to instructions on first and second degree murder. Certain other facts will appear in discussing the assignments of error.
I. The general rule is that a presumption of murder in the second...
To continue reading
Request your trial