The State v. Wisdom
| Citation | 24 S.W. 1047,119 Mo. 539 |
| Parties | The State v. Wisdom, Appellant |
| Decision Date | 31 January 1894 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.
Affirmed.
Charles F. Krone for appellant.
(1) The state having offered in evidence defendant's statement made before the coroner, thereby made him its own witness and could not afterwards impeach him. Jones v. State, 13 S.W. 990; State v. Thomas, 99 Mo. 235. (2) The statements made by defendant at the coroner's inquest were inadmissible. State v. Lamb, 28 Mo. 218; State v. Bilansky, 3 Minn. 246; Alfred v. State 2 Swan (Tenn.), 581; United States v. Darnand, 3 Wall. Reports, 144; United States v. Kirkwood, 5 Utah, 127; Southard v. Rexford, 6 Cowen (N Y.), 254. The court erred in instructing the jury that what defendant said against himself the law presumes to be true unless rebutted by other testimony, etc. There was no evidence on which to found the instruction or to which it could be applied. State v. Jackson, 95 Mo. 651; State v. Green, 13 Mo. 382; Young v. State, 68 Ala. 569; Redd v. State, 69 Ala. 255; State v. Red, 53 Iowa 69; 3 Rice on Ev., p. 497, sec. 313; 1 Bishop on Crim. Proc. [3 Ed. 1880], sec. 1218; 2 Best on Evidence [Ed. 1878, Morgan's], secs. 523, 524. (3) The testimony that defendant refused at the morgue to lay his hands on the body of the deceased was incompetent. There was merely a conjectural connection, if any, between the episode and the possible guilt of defendant. Wills on Circum. Evid. [6 Ed.], 1881; Mill's Logic, Bk. V, Ch. 2 and 3; Novum Organum, Lib. I, Aphorisms, CV. 2. (4) Trial by ordeal is a thing of the past. Doyns v. Georgia, 63 Ga. 699; Stokes v. State, 5 Bax. (Tenn.) 619; State v. Jacobs, 5 Jones (N. C.) 259; Blackwell v. State, 67 Ga. 76; 74 N.C. 646; 21 Am. Rep. 493; 33 Ib., 540. (5) Furthermore, the order was an attempt to compel the defendant to do an act for the purpose of making evidence in a proceeding in which he was under examination. He declined to do that act when directed, and his refusal was merely an exercise of his privilege as a witness on trial or under examination. It certainly will not be contended that this exercise of his privilege may properly be adduced in evidence against him as a badge of guilt, for then the attempt to compel him to testify against himself would be indirectly successful; the refusal of a defendant to testify would inevitably redound to his injury and the value of his privilege be destroyed. Art. & Amend. in Add. to Const. of the U.S. art. 5; Const. art. 2, sec. 23; Cooley's Const. Lim. [4 Ed.] 317, 389; Nolen v. State, 14 Tex.App. 474-484; 3 Am. & Eng. Encyclopedia of Law, p. 439, note 3; People v. McGungill, 41 Cal. 429; People v. Tyler, 36 Cal. 522; Long v. State, 56 Ind. 182; State v. Cameron, 40 Vt. 555; Com. v. Scott, 123 Mass. 539; Com. v. Hadow, 110 Mass. 411; State v. Houghton, 12 Nev.
R. F. Walker, Attorney General, and C. O. Bishop for the state.
(1) The proposition that the state could not introduce testimony of statements made by appellant tending to contradict his sworn testimony before the coroner (offered in evidence by the state), is wholly untenable. And the proposition that by introducing in evidence appellant's sworn testimony before the coroner the state made appellant her own witness, is preposterous. No such doctrine is declared (or hinted) in State v. Thomas, 99 Mo. 235. Nor is such a proposition supported by Jones v. State, 13 S.W. 990. (2) Nothing is better settled than that falsehoods and contradictions by the defendant as to the alleged offense and its circumstances, and prevarications on defendant's part when charged with the crime, are competent evidence against him. 1 Bish. Cr. Proc. [3 Ed.] sec. 1252; Wharton's Crim. Ev. [9 Ed.] sec. 751; State v. Hayes, 78 Mo. 307. (3) The sworn statements made by the appellant before the coroner were admissible in evidence against him, especially as it appeared that they were not only voluntarily made, but that he requested the privilege of making them. State v. Mullins, 101 Mo. 514. (4) Moreover, there was no objection on the part of the appellant to the introduction of the evidence. No exception shall be taken in an appeal or writ of error to any proceedings in the [circuit] court except such as shall have been especially decided by such court. R. S. 1889, sec. 2302. (5) The instruction as to "statements of defendant" is in nowise subject to the criticism of appellant. In the first place, the court did not use the word "admissions," but "statement or statements," and in the second place submitted to the jury the question of fact as to whether any such "statement or statements" were made. In this the court did not err, even though no statement had in fact been proven. State v. Hopper, 71 Mo. 425. But the instruction itself has been so often approved by this court, that it seems time wasted in arguing the point. State v. West, 69 Mo. 401; State v. Curtis, 70 Mo. 594; State v. Peak, 85 Mo. 190; State v. Carlisle, 57 Mo. 102; State v. Hill, 65 Mo. 84. (6) The objection to the evidence of the occurrence at the morgue, and as to the refusal of defendant to touch the body of the deceased was not accompanied by any ground or reason for the objection and is for that reason not available. State v. Hope, 100 Mo. 347.
The defendant was indicted, together with one John Willard for the murder, in the first degree, of Edward Drexler, in the city of St. Louis, on the twenty-fourth day of April, 1892, by beating and wounding him on the head with an iron bar; Willard was charged with being present, aiding and abetting the murder. Defendant was duly arraigned at the May term, 1892, and entered a plea of not guilty. A severance was granted. The cause was tried at the March term, 1893, and defendant convicted of murder in the first degree. The evidence was in substance as follows:
Deceased occupied the first floor and cellar of the building, 818 Pine street, in the city of St. Louis. In the front of the first door he had a cigar stand, upon one side, and a soda fountain on the other. A rectangular partition cut off the rear from the front. Along the east wall in the rear of the soda fountain was a row of raised chairs, for the purpose of blacking boots and shoes, parallel with which ran one side of the partition. The other side of the partition, parallel with the front of the building, was immediately in the rear of the cigar stand, and behind it was an apartment used for manufacturing cigars; still further to the rear was an apartment, partly enclosed by partition and partly enclosed by curtains, used by deceased as his sleeping room, containing a couch, stove and a few other articles of furniture. The hallway, in which stood the row of chairs, was closed in the rear by curtains (or portieres) and in the eastern rear was an open space, in which was a trap door opening into the cellar, down into which led a plain stairway. A glass door in the rear wall (over which was a transom) led into a narrow, paved alley, used only by foot passengers, leading west to Ninth street. The only furniture in the rear space was a folding stepladder. In the sidewalk in front was a round coal hole, covered with a grating, held in place by a perpendicular rod screwed into a flat iron bar, braced against the under side of the pavement across the hole, and held in place by a nut. In the cellar under the pavement was a pile of coal, and further back under the building was a place for setting the soda retorts, connected by pipes with the fountain above.
Deceased lived alone in the place, having no family. He usually employed two or more negro boys to black shoes, who came on duty about 7 or 8 o'clock in the morning and left about 7 or 8 in the evening. At the time of the alleged homicide, he had two negro boys thus employed, one John Hill and the defendant, the latter of whom had been working there only a few days, but had thoroughly informed himself of the habits and hours of the deceased, and of all the details and arrangements of the premises, and had learned that deceased kept a large amount of money about the place.
On Sunday morning, April 24, 1892, the boy, Hill, came to the store at about five minutes to 8. Appellant was sitting on the steps of an adjacent building at the time. Hill tried to open the door, but found it fastened. He asked appellant what was the matter, and the latter answered that he guessed "the old man had committed suicide," or something like that. While he stood there, a milkman stopped at the place, who also tried the door and shook it. Then came Mr. Garvey, a friend of deceased, and a customer of the place, to get his shoes blacked. The latter went around in the rear alleyway, looked through the glass door, but could not see anything, but shook and rattled the door, while the milkman at the same time shook and rattled the front door. The milkman drove off and Mr. Garvey returned to the front door, where Hill and appellant still were. Just at that time, Garvey, looking through the glass door in front, saw the deceased coming through the curtains at the end of the row of chairs, dragging himself slowly and painfully along the floor. Hill exclaimed, "There he is!" Garvey told Hill to go at once for a police officer, while he himself ran across the street to a stable and obtained a bar with which he forced open the door. The appellant disappeared at that time. Garvey went in and found Drexler in his underclothes only, covered with blood, principally about the head and face, and unable to make any articulate utterance.
A police officer was soon on the ground, who took charge of Drexler, summoning an ambulance in which the wounded man was sent to the city hospital. An examination of...
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