The State v. Spaugh

• Decision Date: 22 December 1906
• Parties: THE STATE v. WILLIAM SPAUGH, Jr., Appellant
• Court: Missouri Supreme Court

98 S.W. 55

200 Mo. 571

THE STATE v. WILLIAM SPAUGH, Jr., Appellant

Supreme Court of Missouri, Division Two

December 22, 1906

Appeal from Reynolds Circuit Court. -- Hon. Joseph J. Williams Judge.

Affirmed.

Williams & Frazier, D. L. Rivers, James A. Finch, J. B. Daniel and A Steel for appellant.

(1) The court erred in not sustaining defendant's demurrer to the State's evidence at the close of the State's case for the reason that it was shown that the defendant and his brother, co-defendant, were both in the room at the time of the alleged crime, and there is grave doubt as to which was the slayer, and the defendant's evidence tending to show that he had nothing to do with the killing, and because it was not shown that they were confederates or that they were engaged in a common design, of which the offense was a part. Green v. State, 13 Mo. 382; State v. Walker, 96 Mo. 95; 9 S.W. 649; 11 S.W. 1133. (2) The court erred in admitting evidence, over the objection of defendant, as to the prior difficulty that took place at the restaurant of Rascher between defendant and Edgar, which said difficulty took place some twenty-five minutes before the alleged killing, for the reason that it was a separate and distinct crime, and in no way connected with the murder, and was a crime less than a felony, and in no way would even be admissible to show that the alleged officer was justified in going on the premises of the defendant without a warrant, as he did, at the time of the killing. Bank v. Bank, 64 Mo.App. 253; State v. Summers, 26 Mo. 350; State v. Young, 119 Mo. 495; State v. Parker, 96 Mo. 382; Swan v. Com., 104 Pa. 218; People v. Sharp, 107 N.Y. 427; Com. v. Jackson, 132 Mass. 16; People v. Molineux, 67 L. A. R. 237; State v. Schmetler, 181 Mo. 173. (3) The court erred in admitting evidence of Rascher, over objections of defendant, where he testified to having kicked the defendant in a previous difficulty with Edgar, at his place of business, which said evidence was afterwards taken from the jury by oral instruction of the court; it being expressly held that an instruction to disregard testimony improperly admitted in a criminal case will not cure the error of admitting it, if it was of a character prejudicial to the defendant. State v. Mix, 15 Mo. 153; State v. Marshall, 36 Mo. 400; State v. Frederick, 85 Mo. 145; State v. Kurehner, 93 Mo. 193; State v. Thomas, 99 Mo. 235. (4) The court erred in failing to instruct the jury in relation to defendant's knowledge of the official character of Polk, in his act of attempting to arrest defendant, as testified to by the witness for the State as well as witnesses for defendant; according to the evidence no announcement was made of his official character in the Spaugh home. In view of the evidence on this point it is a question of fact, to be decided by the jury, as to whether defendant knew the official character of Polk, and it was manifest error for the court to fail to cover this point with proper instructions. State v. Underwood, 75 Mo. 236; 1 Wharton Crim. Law, sec. 419; State v. Bateswell, 105 Mo. 614; State v. Dieberger, 96 Mo. 666; State v. Fuller, 96 Mo. 165; State v. Underwood, 75 Mo. 230; State v. Grant, 76 Mo. 246. (5) The court erred in refusing to give instruction covering the law in regard to manslaughter in the fourth degree, as the evidence of defendant and his witnesses and that of the State fully justified it. State v. Ellis, 74 Mo. 216; State v. Garrison, 147 Mo. 548; State v. Gartrell, 171 Mo. 489; State v. Weakley, 176 Mo. 413; State v. Berkley, 92 Mo. 41. (6) The court erred in overruling the motion for a new trial on the evidence of Jordan, wherein he testifies that Mr. Fitz, a deputy, who had not been sworn specially to take charge of the jury and not to communicate with them during their deliberations, was permitted to have charge of the jury, was in the room with them, had every opportunity to talk to them and did talk to them; that said Fitz took liquor into the jury, and in view of the evidence that none of the jury who testified that he, Fitz, did talk to them, but put it about other matters, and especially in view of the evidence of Fitz, himself, to the effect that he did go out of the jury room and disclose how the jury stood. The court said, in the case of State v. Neibekier, 184 Mo. 211, that where some unnamed person upon the outside said the jury stood nine to three for murder, was no ground for setting aside the verdict, especially in view of the fact that the sheriff testified that he had not left the door, and that no one had an opportunity to converse with the jury. State v. Neibekier, 184 Mo. 211; State v. Hays, 78 Mo. 600; State v. Frier, 115 Mo. 643; State v. Taylor, 134 Mo. 109.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) (a) The State's evidence on the subject of an assault by defendant on Edgar, only a few minutes prior to the commission of the murder, was properly admitted. It showed that defendant had committed a felony, and it clearly justified the deceased in going to defendant's home, in his endeavor to arrest defendant, and it showed a motive for the commission of the crime here charged. State v Grant, 79 Mo. 136; State v. Collins, 181 Mo. 259; State v. Rudolph, 187 Mo. 84. (b) It was also proper to admit the testimony of State's witness Ernest Rieke to the effect that said witness reported to Sheriff Polk that defendant had assaulted the Edgar boy; that the witness thought defendant had put out Edgar's eye, and that his face was bloody, etc. So of the testimony of State's witness John Baldwin, to the effect that he received a telephone message from the depot, and that he reported to Sheriff Polk that there was trouble, and he was wanted at the depot. State v. Grant, supra; State v. Collins, supra; State v. Rudolph, supra; State v. Cushenberry, 157 Mo. 168. (c) Evidence that, immediately after the murder of the sheriff, defendant and his brother armed themselves and fled to the mountains, that they evaded the officers for six days, that they made resistance to the utmost, and that they were found in possession of a shotgun, a pistol and a quantity of ammunition, was properly admitted. Such evidence has always been considered admissible in behalf of the State, and a proper subject for the consideration of the jury. State v. Moore, 101 Mo. 330; People v. Petmecky, 2 N. Y. Crim. 459; 4 Elliott on Evidence, sec. 2724; 1 Wigmore on Evidence, sec. 276; Underhill on Crim. Evid., secs. 118, 120; Bishop on Crim. Proc. (3 Ed.), sec. 1249; Wharton's Crim. Evid. (9 Ed.), sec. 750; Jamison v. People, 145 Ill. 376; State v. Shaw, 74 Vt. 153; Wills on Cir. Evid., 130-137; Com. v. Bittle, 200 Pa. St. 648; State v. Phillips, 118 Iowa 666; People v. Flannelly, 128 Cal. 87; Bowles v. State, 58 Ala. 335; People v. Fredericks, 106 Cal. 516; Wharton on Homicide, sec. 710. (d) The State's evidence that tended to prove that the defendant, just after the commission of the homicide, and while he was running away, stopped and fired at Len Arnett, was properly admitted. Arnett was a witness to the killing, and was running towards the defendant at the time defendant shot at him; hence, said evidence tended to prove that defendant was trying to prevent being captured. The fact that said evidence tended to prove the commission of another crime by defendant does not alter the rule. State v. Taylor, 118 Mo. 162; State v. Sanders, 76 Mo. 36; 1 Greenl. on Evidence, sec. 108; State v. Vinso, 171 Mo. 587; Wilkerson v. State (Tex.), 19 S.W. 903. (e) No error was committed in admitting in evidence the various confessions made by defendant, and by his brother in the presence of defendant. In each instance, the trial court excluded the jury, and passed on the preliminary questions, and then the jury was returned into court and the witness allowed to repeat his evidence relative to defendant's confession. "The presumption is that confessions have been freely made until the contrary appears." People v. Barker, 60 Mich. 295; State v. Myers, 99 Mo. 119; Com. v. Culver, 126 Mass. 464; 1 Chitty's Crim. Law, 571; Roscoe's Crim. Evidence, 43; 3 Rice on Crim. Evid., sec. 309. The fact that the confession was made to an officer after defendant had been arrested did not tend to prove that any undue influence was used, or that any threats were made or promises held out. State v. Jones, 171 Mo. 406; State v. Brennan, 164 Mo. 487; State v. Guy, 69 Mo. 432; State v. Simon, 50 Mo. 372; State v. Davis, 53 P. 682; State v. McClain, 137 Mo. 315; State v. Vaughan, 152 Mo. 75; State v. Anderson, 96 Mo. 248; State v. Patterson, 73 Mo. 703; State v. Hopkirk, 84 Mo. 278; State v. McKenzie, 144 Mo. 46; State v. Coella (Wash.), 28 P. 30. (f) No error was committed by the trial court in admitting the evidence of State's witness Rascher, to the effect that he took hold of and pushed defendant out of his restaurant, and that defendant kicked him. This occurred immediately after the assault which defendant made on the Edgar boy, and was a part of said transaction. At most, said evidence was irrelevant and its admission in the first instance non-prejudicial. But, after the court directed the jury to disregard the same, the error, if any occurred, was cured. Sparr v. Wellman, 11 Mo. 236; Minns v. State, 16 Ohio St. 221; Com. v. Shepard, 6 Birm. (Pa.) 282; 2 Thomp. on Trials, sec. 2415. (g) Defendant also objected to the prosecuting attorney's testifying to the circumstances connected with the arrest of State's witness Brown, on the charge of being implicated in this homicide, and of his release. In the cross-examination of said witness by defendant's counsel an effort was made to impress upon the jury the idea that Brown had been arrested on the charge...