The State v. Wilson

• Decision Date: 23 November 1909
• Citation: 122 S.W. 671,223 Mo. 173
• Parties: THE STATE v. WILLIAM WILSON, Appellant
• Court: Missouri Supreme Court

122 S.W. 671

223 Mo. 173

THE STATE v. WILLIAM WILSON, Appellant

Supreme Court of Missouri, Second Division

November 23, 1909

Appeal from Jasper Circuit Court. -- Hon. D. E. Blair, Judge.

Affirmed.

Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.

(1) Appellant complains because the court permitted the prosecuting attorney to indorse the names of the witnesses Frank Ross, Wm. Weaver, H. L. Bright and Dr. E. H. Baird, on the information on the day of the trial. We only find in the record an objection by counsel for appellant, and an exception to the ruling of the court in permitting said names to be indorsed on the information by the prosecuting attorney. Counsel for appellant did not move for a continuance by reason of surprise by the adding of said names to the information, nor did they move to quash the information by reason of said names being added thereto. Hence there is nothing for the court to review on this assignment. If any error was committed, it was waived. State v. Myers, 198 Mo. 243; State v Barrington, 198 Mo. 66; State v. Bailey, 190 Mo. 278; State v. Henderson, 186 Mo. 482. (2) The confession was properly admitted in evidence. In the case at bar there was evidence on the preliminary examination (with the jury excluded) to ascertain whether said confessions were obtained by improper inducements held out to appellant. And in the absence of any improper conduct on the part of the officers to induce such confessions by flattery of hope promise of immunity, or use of threats, the confession was properly admitted in evidence. State v. Brooks, 220 Mo. 74; State v. Wooley, 215 Mo. 682; State v. Spaugh, 200 Mo. 596; State v. Hottman, 196 Mo. 127; State v. Barrington, 198 Mo. 109; State v. Ruck, 194 Mo. 437; State v. Patterson, 73 Mo. 695; State v. Jones, 171 Mo. 406; State v. Brennan, 164 Mo. 487; State v. Stebbins, 188 Mo. 387; State v. Kennedy, 177 Mo. 98; State v. Hapkirk, 84 Mo. 278. (3) Appellant assigns error in that he was cross-examined about matters not testified to in chief. Appellant, in his testimony in chief, stated that he made the confessions at Carl Junction as testified to by different witnesses; also, that he signed the written confession to Judge Bright, but claimed that the first confessions were obtained by threats and duress, and that he did not know the contents of the written confession. It was competent for the State to cross-examine appellant as to all of these facts. He was not cross-examined as to a single fact about which he did not testify in chief, as shown by the record. State v. Miller, 190 Mo. 462; State v. Avery, 113 Mo. 498; State v. Wartz, 191 Mo. 579; State v. Barrington, 198 Mo. 71; State v. Miller, 156 Mo. 85; State v. West, 95 Mo. 142; State v. Kennade, 121 Mo. 414; State v. Anderson, 126 Mo. 546; State v. Grant, 144 Mo. 64. (4) The law, as declared in instruction 7, has been the law of this State since the early case of State v. Hays, 23 Mo. 287; State v. Dorrah, 152 Mo. 541; State v. Carlisle, 57 Mo. 102; State v. Brown, 104 Mo. 365; State v. Wisdom, 119 Mo. 552; State v. Young, 119 Mo. 525; State v. Peak, 85 Mo. 192; State v. Curtis, 70 Mo. 594; State v. Talbot, 73 Mo. 347; State v. Walker, 98 Mo. 108; State v. Cushenberry, 157 Mo. 188; State v. Howell, 117 Mo. 307; State v. McKenzie, 144 Mo. 44. (5) Appellant assigns newly-discovered evidence as a reason in his motion for a new trial, and attaches an affidavit verified by Walter B. Sayler, one of the attorneys for appellant in the trial court below. This assignment of error cannot be considered because the affidavit is not supported by the oath of appellant, or the persons named in said affidavit. The affidavit made by counsel for appellant is not sufficient. State v. Flutcher, 166 Mo. 587; State v. Neasby, 188 Mo. 472; State v. Miller, 144 Mo. 30; State v. Bowman, 161 Mo. 94.

OPINION

FOX, J.

The defendant in this cause was charged by information of the prosecuting attorney of Jasper county, which was duly verified, with murder of the first degree. The party charged to have been killed was one Millie Plum, and the offense was alleged to have been committed on July 12, 1908, at Carl Junction, Jasper county, Missouri. The information embraces four counts, each of which charges murder of the first degree, and doubtless were embraced in the information to meet the different phases of the testimony which might be introduced upon the trial of the cause. From a judgment of conviction in the Jasper Circuit Court of the offense charged the cause is brought to this court and is now pending here upon appeal from such judgment.

The testimony introduced upon the trial of this cause substantially tended to prove the following state of facts:

Defendant, William Wilson, is a negro, was about twenty-four years old at the date of the trial, and a native of Lafayette, Louisiana. In the spring months of 1908 the Miller Carnival Company was showing at Lafayette, and this defendant joined said company at that place and remained as one of the employees of said company until the date of his arrest at Carl Junction for the murder of deceased. The deceased, Millie Plum, joined said Miller Carnival Company at Weir City, Kansas, as an employee in the capacity of a cook, about one week prior to her death. It appears that said Miller Carnival Company had been at Carl Junction for a few days, taking part in a street fair, and closed its engagement late Saturday night, July 11th, and was getting ready to leave on the following day. Said company traveled by railroad; it had one car of its own, divided into compartments, one of which was occupied by the Miller family, one for the private dining-room of the Miller family, one for the general dining-room of the carnival employees, and an extra car of the railroad company was used in conveying their property from town to town.

The body of the deceased, Millie Plum, was found near an empty box car of the Frisco railroad at about 1:45 Sunday morning, July 12, 1908. When found a rope was tied around her neck; her face was downward; a bruise was found on her left check; a cut around her neck five inches long, but not deep; she had on a thin skirt and a gauze shirt waist. The body had been dragged a distance of about one hundred yards on the ground. The distance of the body from the Miller car was something like two hundred yards. Her hands and feet showed signs that she had been dragged face downward, and the skin on the hands and feet was broken and worn. Woman's hair was found on the railroad track where the body had been dragged; a lady's comb was found about thirty feet from the Miller car. Sock-feet tracks of a man with flat insteps were found leading back to the Miller car; the size of the footprints corresponded to defendant's feet. Defendant was arrested in the Miller car soon after the body of the deceased was found, which was near the hour of 2 o'clock in the morning, and when first arrested he denied that he had killed deceased, but while in the city calaboose at Carl Junction, and only a few hours after his arrest, defendant confessed to the crime of killing deceased. After defendant was taken to the county jail at Carthage, and on that Sunday afternoon, he made a sworn, written confession to Judge Bright, who was then assistant prosecuting attorney, telling him how this crime was committed, which written confession is as follows:

"State of Missouri, County of Jasper, ss.

"William Wilson, being duly sworn, upon his oath states: My name is William Wilson. I am 24 years old. I was born in South Carolina. I joined the J. G. Miller Carnival Company January at Lafayette, Louisiana. We showed at Weir City, Kansas, last week. My duty was working at the merry-go-round and at the boarding car. At Weir City a white woman, whom they called Millie Plum, joined the carnival company. We went from Weir City to Carl Junction. We showed there last week, and we showed there the last time Saturday night, and expected to leave there Sunday morning. This white woman I mentioned cooked for the members of the company. About midnight Saturday night, July, 11, 1908, I went into the car of the carnival company where Millie Plum slept. I took off my shoes. She was lying down. I asked her to let me have sexual intercourse with her. She refused. Then I hit her on the jaw, and knocked her down. I then carried her out of the car and for about 100 yards from the car. I then tied a rope around her neck and dragged her some distance to an empty box car. I tried to put her into the box car, but she was too heavy. I wanted to put her into the box car to hide her. She never hit me or cut me at any time.

"When first arrested I denied having killed Millie Plum.

"I make this statement under oath and of my own free will and accord, voluntarily and without any duress or restraint whatever and without any hope or promise of clemency of any kind. Willie Wilson.

"Subscribed and sworn to before me this 12th day of July, 1908. Henry L. Bright,

"Notary Public.

"My commission expires July 28, 1911.

"Witness: Wm. Weaver.

"(Seal.)"

Dr. A. L. Carpenter, a witness for the State, who examined the body of deceased early on the morning it was found, testified as follows:

"Q. There was a question I intended to ask you. What was the condition of the body as to whether or not it was alive or dead? A. It was unquestionably dead.

"Q. Now, after making an examination, Doctor, of the body contusions and bruises and the rope around the neck, what, in your opinion, was the cause of death? A. Dragging it up there with the rope; it was strangulation.

"Q. You say, Doctor, it was caused by strangulation? A. Yes, sir.

"Q. That was produced by what? A. By dragging her along on...