257 S.W. 447 | Mo. | 1924
Habeas corpus to fix bail. Immediately after the hearing the order admitting petitioners to bail was made, and the reasons for that action will now be given. The indictment charges petitioners with murder in the first degree. The testimony of all witnesses whose names are indorsed on the indictment and of some others has been taken and is brought here with written statements made by some of the petitioners. The case was presented upon this evidence. In the view we take of the case, the following statement of the evidence will suffice.
About May 1, 1923, the Fixture Hangers Union went out on strike. Rose, the deceased, and Olden were fixture-hangers by trade, but were not members of the Union. They continued to work in Kansas City and vicinity, and when this was discovered Union officials began to make efforts to "get them off" of the jobs on which they were working. Efforts to persuade them to cease work and to join the striking union were made. They were induced to talk the matter over with Union officials. No violence was offered them or threats made. *183 On July 2, 1923, they were working at the Gary residence at 1228 W. Fifty-sixth Street. Ricke, the business agent of the Union, told some of the petitioners he wanted to get Olden and Rose off the job, and sent Schultz, Matthews and Baber to them to "scare the two men off the job." The three met petitioner Alley, and he went with them. When they arrived Olden and Rose were finishing hanging a chandelier. They were upon ordinary step-ladders. One of the petitioners began the conversation by asking Olden and Rose if they had a Union card. The answer was in the negative. The next question was whether they, Olden and Rose, "would like to get off of this job." Rose said he "didn't care to" and asked the men who sent them. One of the petitioners replied they were "sent out here from the Building Trades Council to see that you men get off this job or else ____." Rose asked: "Else what?" Petitioner replied: "Or else, by God, you will take the consequences." At that moment Rose stepped down off the ladder, and, according to Olden, stooped to pick up some small glass prisms. One of the petitioners said, "Don't pick that up," and said to Rose, "I mean you," and then pushed Rose on the shoulder. Olden saw nothing more because he, too, was just reaching the floor from the ladder, and as he turned someone struck him and he was rendered unconscious. There is evidence that Baber kicked him thereafter, but his injuries were not of a serious or dangerous character, according to the physician who attended him. Schultz admits striking Rose, and says Alley struck him. The men left almost immediately. Rose was rendered unconscious and died in a short time. No weapons were seen either before, during or after the incident, and there was nothing in the room available for use as a weapon. Rose's head and body showed he had been struck several times, but the skin was not broken at any place. His nose was broken and there were abrasions and "multiple contusions" on his forehead as if he had been struck with the fist, *184 according to the deputy coroner. This official made the autopsy. This disclosed that death resulted from the penetration of the brain by "just a little sliver of bone between a quarter of an inch and a half inch" which had been broken off of one "of the two little wings of bone that join the skull together." The doctor may have referred to one of the orbitosphenoid processes. He said this was a "very peculiar case." He made it clear that he doubted the ability of either of the petitioners to strike a blow with his fist which would produce the result, but frankly confessed that he was puzzled by the fact that the skin was not broken, referred counsel to the police officers on the question whether there was a weapon which would deliver such a blow without breaking the skin, and finally declared he didn't know whether or not it could have been done with anything other than the fist. There was evidence of other blows on the head and one on the chest, but it is not said they were dangerous in character. A physician, offered as an expert, testified the slivering of the bone in question could have resulted from a blow with the fist. A police officer testified it could have been done with a black-jack without breaking the skin on the forehead. Whether a black-jack is a deadly weapon or whether it would have produced the "multiple contusions" "like a blow with the fist" was not shown. There was direct evidence that Olden was kicked, but it is shown that the men who assaulted Olden did not assault Rose.
Under our Constitution "all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great." The only capital offense (Ex parte Dusenberry,
The essentials of murder in the second degree under our statute are willfulness, malice and premeditation. [State v. Curtis, 70 Mo. l.c. 600; State v. Speyer, 207 Mo. l.c. 552.] It is always bailable because it is not capital. It makes no difference how evident the proof or great the presumption of willfulness, malice and premeditation, if nothing more than these appear, bail cannot be denied.
In order to constitute first degree murder, in a case like this, the element of deliberation must be added to those included in second degree murder. [State v. Kyles, 247 Mo. l.c. 648.] To make the offense capital all four elements must appear; and to justify denial of bail the presence of each must be made out by proof that is evident or by presumption that is great. It is also to be kept in mind that the question here is not whether the evidence presented would support a jury's verdict of guilt of first degree murder. The test on that inquiry in this court would be whether there was substantial evidence tending to prove each element of that offense. The test in this proceeding is whether the evidence presented and under consideration on this hearing constitutes proof that is evidence of guilt of murder in the first degree, or establishes facts and circumstances which make the presumption of such guilt strong. [Ex parte Verden, 291 Mo. l.c. 562; Ex parte Knight,
In this case the fatal blow was that which broke the sliver, as the deputy coroner designated it, off of the sphenoid bone. There is little or no evidence that any other blow or wound was of serious character. There is no direct evidence concerning the delivery of this fatal blow except that found in the statements made by certain petitioners, and these contain no evidence of any blow than one struck with the fist. The net result of the testimony of the deputy coroner is, as he finally said, that he didn't know whether the blow which killed Rose could have been given with the fist. He was puzzled. The testimony of the experts goes no further than possibilities. They say the wound could have been inflicted with a black-jack. One says it could have been given with the fist. The evidence does not explain what a black-jack is. There is no proof that makes it evident that the blow was given with a weapon. The dubious testimony of the deputy coroner and the opinions of experts that a black-jack could have produced the wound is to be considered in connection with the expert testimony that a blow of the fist might have caused it, and the direct evidence that it did cause it. Taken together the evidence does not measure up to the constitutional standard as proof that Rose was struck with a weapon other than the fist. If the fatal blow was given with the fist, there is no presumption from the blow itself that he who struck it was animated by an intent to kill. The character of the wound is quite unusual and, according to the testimony, hardly to be expected from a blow of the fist. The question whether a trier of the facts could or ought to draw an inference of intent to kill from such a blow has been the subject of judicial inquiry (McAndrews v. People,
Headnotes 1 and 2: Bail, 6 C.J. sec. 171.
