214 Mo. 695 | Mo. | 1908
This cause is now pending before this court upon defendant’s appeal from a judgment of the circuit court of Johnson county, Missouri, convicting him of murder of the first degree.
On October 5,1904, Anna Z. Bentley made affidavit before a justice of the peace of Johnson county, charging Robert Sassaman, the defendant, with murder in the first degree, for the killing of one Carl Miller. Upon this charge the prosecuting attorney of said county filed an information against defendant November 3, 1904. October SO1, 1906, the defendant was arrested at Chicago', Illinois, and was brought to Johnson county, where, before said justice of che peace, he pleaded not guilty to said charge and waived a preliminary examination. On January 25, 1907, in the office of the circuit clerk of Johnson county the prosecuting attorney filed a new or an amended information charging defendant with murder in the first degree. It was upon this information that the defendant was put upon his trial, the first information having been dismissed. It is unnecessary to reproduce in full the information charging this offense. The challenge to the sufficiency of it is directed to only one part of the information, and that will be given attention during the course of the opinion. Upon this new or amended information the defendant was arraigned and pleaded not guilty and upon his application the cause was continued from the February to the June term.
The testimony introduced on the part of the State upon the trial tended to prove that about the beginning of 1904, defendant, Robert Sassaman, began living with Miss Anna Bentley in rooms in St. Louis. Miss Bentley was then about twenty years old. Her mother had died when she was about ten. She had, as a child, after her mother’s death, spent a time in a house of refuge. At about thirteen years of age she went with her father to Memphis, Tennessee, where she soon married- one Chamberlain, with whom she lived a few months, when she was divorced by Chamberlain. At about sixteen years of age she returned to St. Louis, where for over two years she dwelt in houses of ill-fame and frequented wine-rooms. Defendant was then about twenty years old. He had known Miss Bentley when-they were children, and he knew of her immoral life. May 2, 1904, they started west together, having a horse, a covered spring wagon* and a camping outfit. About Friday, May 27, on the road in Johnson county, east of Warrensburg, they
The testimony on the part of the defendant was substantially as follows:
Defendant himself took the witness stand. His version of the circumstances of the killing of Miller was different from that given by Anna Bentley Robbins. He said she did the killing and he aided her in secreting the body in the well. He testified that they planned with Miller to steal corn for feed that night, went to bed and got up> about midnight vrhen the woman killed Miller as he was at the camp' fire. He said that she was very jealous on account of his supposed intention to marry Izora Hunt. While they were living together in St. Louis, he said, she had burned a sofa cushion which Izora Hunt had given him, and while on the road she had burned a button picture of Izora, which he wore, and cut him with a butcher knife. Defendant said that after she had beaten Miller upon the head with an ax, and killed him, she explained her conduct to defendant by saying: “Now, remember, old man, you are in my power. Prom this on you will do as I say, and if you marry that little bitch at St. Louis, I will show them one thing. I will put this murder at your feet. You remember I am a woman, and my word will go in the court where yours wont.” Defendant denied making statements about the murder, as testified to by Caverty and Hunt, and denied having or showing a bill of sale for Miller’s team and outfit. He testified
In rebuttal, Anna Bentley Robbins denied writing said letter, and two lawyers, an abstracter and four bankers, as experts, testified that said letter was not in the handwriting of Anna Bentley, but was in the handwriting of defendant himself.
Owing to the importance of this case it may be well to present a brief abstract of the testimony of most of the witnesses.
Anna Bentley Robibins, in her examination in chief, in part testified as follows: I am twenty-three years old. My mother died when I was ten years old. My father is living, but I do not know where he is. I was born in St. Louis, and have also lived in St. Paul and Memphis. My maiden name was Anna Zella Bentley. I got acquainted with defendant when I was about eight years old at St. Louis, Missouri, where we and our parents then lived. I played with him and his two sisters about two years. At a little over thirteen years of age, I was married to R. P. Chamberlain of Memphis, Tennessee. We ' lived together at Memphis eight or nine months. He obtained a divorce from me. I came back to St. Louis to live, where I saw defendant once or twice prior to the time when I went to live with him as man and wife. After I left my husband at Memphis,
Witnesses by the names of Hogan and Oraig gave testimony as to seeing the defendant, the woman and Miller with their wagons and camping outfit together west of Holden on the afternoon of May 20th, and S. T. Sanders saw them several times east of Warrens-burg just before that date.
Witness C. C. Bundy testified for the State and in part said: I was circuit clerk at Harrisonville in 1904. In October, 1904, Mrs. Robbins (nee Anna Bentley) came to Harrisonville and told of this murder to the sheriff, prosecuting attorney, myself and several others. We went with her and located the well, where she said Miller’s body was placed, and in it we found the body. Prosecuting attorney and sheriff of Johnson county also joined us there.
Walter Mosley testified: Took body out of well at time of inquest. There was a hole in right side of the head about three inches long, and the head was battered up: Next morning, I found a gallon bucket and coffee pot near the scene of murder, being the same described by Anna Bentley Robbins. Miller’s body did not have on much clothing, but I don’t remember just what it was. We found in the well a rock weighing 30% pounds, with wire and rope tied
Dr. R. L. Bills testified in substance as follows: I was tbe coroner who held the inquest on the body found in a well west of Holden about the first of October, 1904. I was present when the body was taken out of the well. The body was in a very advanced stage of putrefaction. The fore part of the head was very much mangled, and the right side of the head had quite an opening in it, and, if I remember right, the brains were all gone. The skull bones were all fractured up pretty badly, and a good many of the small bones dropped back into the well — they were beaten up badly. I think it would have taken a number of blows with an as to do that. I don’t think the body had on any shoes or boots.
Mrs. Amelia Oleson gave testimony, and said: I live in Topeka. Shortly after Sassaman and Anna Bentley (now Robbins) came to Topeka, Anna came to my house and made her home there while she worked out. Sassaman came there several times and asked her to go. bad?: with him. One time he was a little angry at her, and he said to her: “I come after you this time for the last time, and I will take you dead or alive.” She refused to go with him. I saw him carrying pistols every time I saw him there. About two or three days before she left for Missouri, in October, the first year she was in Topeka, she told me about this murder.
Rolla D. Oaverty, another witness for the State, testified in part as follows: I am twenty-one years old. I reside at Kansas City, Kansas. I knew defendant Sassaman prior to 1904. In that year I saw him and the Bentley woman in camp there with horses and wagon. When I first noticed Sassaman he had his back toward me and there was the appearance of blood behind his right ear, and it looked like a little
S. S. Hunt testified in substance as follows: I am the father-in-law of defendant. In the last of February, 1906,1 went to Chicago and visited defendant. Perhaps the second day after we got there we were talking about this case, and I said to him that it might not have been a man that was in the well — that it might have been something else. ‘ ‘ Oh, no, ’ ’ he said, “it was a man, I put him in there myself. I know it was a man.” After that he asked me what he should do in his trouble, and said: “If it hadn’t been for that damned woman I never would have done that job.” He showed me a paper he said was a bill of sale of that team.
T. W. Goodman testified for the State in substance as follows: I am an undertaker at Holden. I saw the body of the man taken out of an old well about two miles west of Holden early in October, 1904, over which Dr. Bills held an inquest. I examined the skull of the body. The skull was mashed into ten or fifteen pieces. The right side and front were mashed in.
On behalf of defendant, Gustave Hagermeyer, a policeman, and John Smith, saloonkeeper of St. Louis, testified as to the good reputation of defendant.
Mrs. Mabel Bernard, sister of defendant, testified that she knew the handwriting of Anna Bentley Bobbins, and that the letter marked exhibit C, D, E and F was in the handwriting of Anna Bentley Bobbins.
The letter identified by this witness, marked as above indicated, was then introduced in evidence, qnd is as follows:
“Kans City Kans jan 27 1905.
“Dear Bobert I just heard by some friends where you were’at and I thought I would write you a few*714 lines to let you know how I was getting a long Robert Dear I am very sorry I ever told about the murder of Mr. Miller now dady you know I killed him, but are the only one on earth that does know and I have all ready said you done it and means to stick to it but I will tell you what I will do with you if you will leave that little bitch you are with and come to me we will live together a gain and be happy now daddy I love you and you know it you know I am a fool about you when I would kill a man just to get you to be with me now daddy please answer this and come to me or send for me if I ever see that little bitch I bet you wont live with her long now daddy please send for me I cant live without you I will kill myself if you dont come I cant stand to see you with any one else now rember daddy I am a woman and you are a man if this comes to a trial you will hang because they will believe me you know I told you it first and what I said goes so if you dont send for me you will sure hang you know I. am game and will do what I say so if you want to save your neck write to me. I will close from your loving darling.
“Miss Anna Bentley
“Kans City Kans
“General Delivery.
“P. S. please write you if you get this I am sick to be with you daddy please write.”
Mrs. Delia A. Leone testified for the defendant in substance: I ain aged eighteen, a sister of defendant. In a conversation between S. S. Hunt and defendant’s attorney I heard Mr. Hunt say that Sassaman never told him anything about the killing of Miller; that he was not fool enough to do anything of that kind. Anna Bentley’s reputation is very bad.
Robert Sassaman, defendant, testified in his own behalf, and in substance said: I am twenty-three years old. I served in the Spanish-American war,
Albert Gains testified in substance: Heard the woman known as the Cuban woman (Modesta Alpizer) tell Rolla Caverty to testify just as she told him, and he said he would.
Laura Belle Ryle, another witness for defendant, stated: I am an actress and live in St. Louis, and am the first wife of defendant. The letter introduced in evidence and marked as an exhibit is in the handwriting of Anna Zella Bentley.
In rebuttal the State introduced witnesses. James A. Kemper and.R. M. Robertson, lawyers; W. L.
Anna Bentley Robbins, recalled, denied writing letter marked exhibit O, D, E and F.
James Koch and H. E. Jones testified that the gate at scene of mnrder was up1 a hill about 1501 to 180 yards west of the camping place.
Louis M. Geer testified: I am constable of Madison township in Johnson county, Missouri. I brought defendant back to this State from Chicago, where he was arrested for this crime. On the trip back he voluntarily told me that when Anna Bentley struck Miller, that Miller fell forward into the fire. He indicated that she struck two blows. He said the reason he helped her put the body away was because she had a hypnotic influence over him.
At the close of the evidence the court gave its instructions to' the jury and the cause was submitted to' them.. We shall not reproduce the instructions given to' the jury or those requested by the defendant and refused by the court, but we will give the complaints as to the declarations of law proper consideration in the course of the opinion. The jury returned their verdict finding the defendant guilty of murder of the first degree and assessed his punishment at imprisonment in the penitentiary during his natural life. Timely motions for new trial and in arrest of judgment were filed and subsequently taken up and overruled, by the court. Sentence and judgment followed in accordance with the verdict, and from this judgment the defendant prosecuted this appeal, and the record is now before us for review.
The record discloses. numerous assignments of error which it is insisted were committed during the progress of the trial of this cause.
We will give the complaints urged by the appellant such attention as we deem necessary and their importance requires.
I.
It is insisted by learned counsel for appellant that the trial court committed error in overruling defendant’s motion to' quash the information. This insistence is predicated upon three grounds:
First: That the defendant was not accorded the right of a preliminary examination as is provided by law. [Laws 1905, p. 133.]
Second: Because the information does not charge the defendant with the commission of any crime other than manslaughter.
Third: Because the information is not verified, as required by law.
Directing our attention to the question suggested that defendant was not afforded a preliminary examination, it is essential, in order to fully appreciate that question, to briefly refer to the disclosures of the record concerning that question. It will be observed that this offense is charged to have been committed upon the 30th of May, 1904. Upon the 5th day of October, 1904, Anna Z. Bentley appeared before J. W. Greenwood, a justice of the peace in and for Johnson county, and filed an affidavit or complaint in writing and upon her oath, under which the defendant, Robert Sassaman, was charged with the murder of one Carl Miller; whereupon the justice on said 5th day of October, 1901, issued his warrant based upon said complaint, directed to the sheriff or constable of said county, commanding them to take the defendant and
“On this the 3d day of November, 1906, the warrant was returned executed by having the body of the defendant before me as commanded, and thereupon the justice informed the prisoner of the charge against him and read the complaint to him after being requested to do so, and thereupon the defendant after hearing the reading thereof entered a plea of not guilty, and waived examination before me, J. W. Greenwood, a justice of the peace, within and for said county on said charge.
“And thereupon a mittimus was issued to the jailer of the county of Johnson, commanding him in the name of the State to receive the said Robert Sassaman, into his custody, in the jail of Johnson county, there to remain until he be discharged by due course of law, and delivered to Lewis M. Geer, constable of Madison township, for execution.
“Given under my hand this the 3d day of November, 1906. J. W. Greenwood,
“Justice of the Peace;”
It is further disclosed that while the complaint was pending before the justice of the peace, the then acting prosecuting attorney, Mr. Charles Morrow, filed an information in the circuit court charging the de
The fundamental' error assumed by appellant upon this proposition is in treating the information filed January 25, 1907, upon which the defendant was tried, as the commencement of this prosecution. This information, by counsel on both sides of this case, is referred to as a new information. In a certain sense it may be so classified, but it by no means follows that the prosecution of this cause was commenced, at that time, and that before such information could be filed or proceeded with a preliminary examination had to be accorded to the defendant. This prosecution was begun on October 5, 1904, prior to the enactment requiring a preliminary examination before an information was filed. The complaint of witness Anna Z. Bentley was predicated upon section 2441, Revised Statutes 1899, which provides that whenever a complaint shall be made in writing and upon oath to any magistrate hereinbefore mentioned, setting- forth that a felony has been committed and the name of the person accused, it shall be the duty of such magistrate to issue a warrant reciting the accusation, and commanding the officer to whom it is directed to forthwith take the accused and bring him before such magistrate to be dealt with according to
In this case we are confronted with the record of the justice of peace which the law requires him to keep, which says in express terms that the defendant was brought before the justice, entered a plea of not guilty, and expressly waived any preliminary examination. This the defendant had the right to do. The offense with which this defendant was charg’ed was not bailable, and upon Iris waiving the preliminary examination the justice very properly issued his warrant of commitment under the provisions of section 2461. This warrant of commitment expressly required the officer to present the defendant to the jailer of the county there to be committed by him until he be discharged by due course of law.
If the defendant had been charged with some other felony which was bailable, and had waived a preliminary examination and entered into a recognizance to appear at the next term of the court which had jurisdiction to try the case, and the proceeding which required him to give such bail and the giving of the bail were prior to the enactment of the law which required a preliminary examination, it certainly will not be seriously contended that the prosecuting officer could not continue the prosecution of the defendant, which was begun before the justice, by filing an information charging the same offense with which he was charged before the justice, without suspending the prosecution in order to grant a preliminary examination, which was required by provisions of law which
So it may be said in the case at bar, the prosecution against this defendant was begun before a justice of the peace by the filing of a complaint as provided for by section 244-1. The defendant expressly waived his right under the law to have a preliminary examination, and the justice did the only thing that he was authorized to do under the provisions of the law, the case not being a bailable one, issued his warrant of commitment, and had the defendant confined in jail, there to remain until he was discharged by due course of law. There had been in this case an information filed in the circuit court prior to the enactment of the law of 1905, which required a preliminary examination, and that information was dismissed and the one upon which the defendant was tried duly filed. The defendant was confined in jail awaiting either the action of the grand jury, or of the prosecuting officer who was authorized to file an information charging him with the offense for which he had been committed, and under that state of the record the prosecuting officer was fully warranted under the law to continue the prosecution begun before the justice of the peace, and followed up by his predecessor, in the circuit court prior to the enactment of the law of 1905, by filing the information of January 25, 1907. The defendant
The law of 1905 was doubtless enacted for a twofold purpose — one was to accord to persons charged with felonies a preliminary examination, to the end that groundless or vindictive prosecutions might not be continued for any length of time. The other was to preserve the evidence against a defendant and enable the State to have the witnesses enter into a recognizance to appear before the court that had jurisdiction to finally try the cause. It is clear that the provisions of that statute have no application to a case like the one as is disclosed by the record in the ease at bar. In our opinion the action of the court was entirely proper in declining to quash this information upon that ground.
It is next insisted that the information does not charge the defendant with any crime other than that of manslaughter, and learned counsel for appellant predicates this contention upon the concluding portion of the information. Using the language of counsel for appellant in assigning this error he says: “Because the concluding portion says, ‘And so the said Ewing Cockrell, prosecuting attorney aforesaid, under Ms oath
It is sufficient to say of this proposition that in our opinion it has no merit. It will be observed at the very inception of the consideration of this question that the prosecuting attorney starts out by saying that the information is given under his oath of office, and concludes the charge with saying “And so- the said Ewing Cockrell, prosecuting attorney aforesaid, under his oath of office does say,” etc. The only oath upon which the prosecuting officer gives this information and makes this charge is the one under which he is resting by virtue of his oath of office. The prosecuting officer can only make this charge upon his oath of office, and should he have concluded this information as suggested by counsel for appellant, on his oath, the oath therein mentioned contemplates none other than his oath of office; hence we are unwilling to say that because the prosecuting officer somewhat broadened the usual conclusion, and in place of saying on his oath does say, etc., the information is bad. The use of either of those terms amount to the same thing. It simply means that he presents this charge upon his oath of office, and can mean nothing else, for that is the only oath he is required under the laws of this State to take.
In State v. Atchley, 186 Mo. 174, this court ¡clearly indicated that the terms “upon his official oath” and “upon his oath” were synonymous and meant the same thing. It- was held in that case that the prosecuting attorney’s information was defective for the reason, as stated by the court, that “neither in the charging part nor in the conclusion of his information herein, has the prosecuting attorney of Dallas county said that ‘upon his official oath’ or ‘upon his oath’ the said
Finally, upon tills motion to quash, it is urged that the information was not properly verified as required by law. It will suffice to say upon this proposition that the record discloses that the information was duly and properly verified at the date of its filing, January 25, 1907; the clerk, however, in his jurat preserving the evidence of the administration of the oath to the prosecuting attorney, recites, “Subscribed and sworn to before me this 25th day of February, 1907.” This was clearly a mistake of the clerk, for it is disclosed by the record that he filed the information and his filing is indorsed upon it on January 25, 1907. That this was simply a clerical mistake was further disclosed by an admission on the part of the defendant's counsel that a certified copy of the information, verified as aforesaid, was served on defendant within three days after January 25, 1907. That the verification of this information was sufficient is too plain for discussion.
II.
Appellant complains that the court committed error in giving instructions numbered 1 and 2. We' have fully considered the instructions complained of. Nxunber 1 is the leading instruction requiring the jury to find every essential fact necessary to constitute the offense with which defendant is charged, and is in form which has repeatedly met the approval of this court.
Instruction number 2 is simply the usual instruction defining the terms wilfully, deliberately, premedi
It is further insisted that the court committed error in refusing instructions requested by the defendant designated A, B, O, H and J. It is sufficient to say upon this action of the court in declining the request of the defendant as to the instructions designated, that we have examined the instructions requested by the defendant, and have fully considered them. In our opinion the action- of the court in declining to give the instructions prayed for was entirely proper.
Instruction A was one requested at the close of the evidence in chief in behalf of the State, directing the jury to find the defendant not guilty. B was to the same effect, except it was requested at the close of all the evidence introduced in the cause. C was an instruction directing the jury that under the information in this case the jury was not authorized to convict the defendant of any degree of crime above
“The court instructs the jury that if you believe from the evidence in this case that someone, other than the defendant, without a preconcerted design on the part of the defendant, at the county of Johnson, in the State of Missouri, at any time within three years prior to the 25th day of January, 1907, killed Carl Miller, and that after the said killing was done defendant aided the slayer of Carl Miller in concealing the body or afterwards aided the offender to- escape from the scene of the crime, or he, knowing that such offender had committed the crime, gave to such offender any other aid with the intent and in order that the offender might escape, or avoid arrest or trial or conviction or punishment, then you will find defendant guilty as an accessory after the fact and assess his punishment at imprisonment in the penitentiary not exceeding five years or in the county jail not exceeding one year nor less than six months-, or by fine not less than four hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months.”
It is clear that this instruction was properly denied.
Instruction J was one upon murder in the second degree. It is only necessary to say concerning that instruction that the facts as developed at the trial of this case did not furnish a basis for directions to the jury by the trial court upon any grade of homicide other than that as charged in the information, murder in the first degree; hence there being no- testimony-which would authorize the court to- submit to the jury any lower grade of the crime than .that charged, the action of the court in confining its instructions to murder in the first degree was proper. [Wharton on
It is next insisted that the court erred in refusing the request of the defendant to give instruction marked “Gr. ” This instruction was one purporting to define the term corroboration, and it is argued by counsel for appellant that this instruction should have been given, or at least that the court should have given one defining the term corroboration. This instruction, as requested by appellant, was as follows:
“By the term, ‘corroboration,’ as.used in these instructions, is meant proof of facts and circumstances by other witnesses, independent of the testimony of án accomplice, or accessory, that of themselves tend to prove that the person on trial is guilty of the offense charged against him. Proof, even by other witnesses, of the ‘corpus delicti/ which in this case means the death of the person named as Carl Miller, nor the finding of a dead body at a place where any accomplice or accessory said one could be found, nor the proof of wounds or bruises on said dead body similar to those described by such accomplice or accessory, are not corroboration of such accomplice or accessory as used in these instructions and as required by law, and cannot be taken as corroborative facts, but such independent facts so- testified to by other witnesses must go further and of themselves tend to prove that the defendant on trial actually committed the offense charged against him in the information.”
That this instruction should not have been given is too plain to even furnish any reason for the discussion of it; but if it was essential that the court should define the term ‘ ‘ corroboration, ’ ’ it may be conceded that the requesting of this instruction was sufficient to make it incumbent upon the court to give a
“The court instructs the jury that they are at liberty to convict the defendant on the uncorroborated testimony of an accomplice alone, if you find from the evidence in this case that any witness who has testified before you was an accomplice; and by an accomplice is meant a person who actually commits or participates in the crime, if they believe the statements as given by said accomplice are true in fact and sufficient in proof to establish the guilt of the defendant; but the jury are instructed that the testimony of an accomplice in crime, when not corroborated by some person or persons not implicated in the crime as to matters material to the issue, that is, matters connecting the defendant with the commission of the crime charged against him, and identifying him as. the perpetrator thereof, ought to be received with great caution by the jury, and they ought to be fully satisfied of its truth before they should convict the defendant on such testimony. ’ ’
The question involved in this proposition is fully answered in the recent case of State v. Bobbitt, 215 Mo. 10. It was contended in that case, just as it is in the case at bar, that the instruction did not explain the meaning of the word corroborate. The instruction as given in that case, which is substantially the same as instruction number 5 given by the court in the case at bar, was quoted, and this court in responding to the contention made by the- appellant, said: “The point is made that this instruction does not explain the meaning of the word ‘corroborate,’ and various eases in this court are cited on this question. This instruction,
. Appellant also complains at the action of the court in refusing instruction “I.” This instruction treated of the subject of the opinions of the expert witnesses during the progress of the trial on questions of handwriting. There was no error in the refusal of this instruction for the reason that the court in one of its instructions, No. 10, fully covered that subject in a way that has frequently met the approval of this court.
Upon the subject of instructions it is finally contended by the appellant that the trial court committed error in its failure to instruct the jury in accordance with defendant’s request for instructions covering all the issues, and in special matters to which the attention of the court was directed. It is sufficient to say upon that proposition that the record fails to disclose the proper preservation of that question for review. There was no exception made at the time to the failure of the court to do what had been requested by the defendant. But aside from all this we have carefully-analyzed all of the instructions given by the court, as well as those refused. It is disclosed by the record that the court of its own motion gave ten instructions, and at the request of the defendant gave six additional ones, which made sixteen instructions presented to the jury. These instructions, in our opinion, fully
III.
■ Complaint is also1 urged upon the action of the court in the admission of testimony, which, it is contended by appellant, sought to show that the defendant was guilty of other crimes. We have given this testimony very careful consideration, and have examined the disclosures of the record in detail concerning this particular question, and have reached the conclusion that the contention of learned counsel for appellant upon this subject should not be maintained. There was no evidence admitted to which the defendant interposed any objection, as to the commission of other crimes, with the view of prejudicing the jury against the defendant, thereby endangering his right to an impartial trial.' There was testimony introduced and this was without objection, but whether objected to or not, it was clearly competent, showing that defendant had in his possession a bill of sale purporting to have been signed with “his mark,” by the deceased, Carl Miller, the party charged to have been killed, to certain property that he had with him, and the evidence further indicated that this bill of sale was not executed by Carl Miller, but was in fact written and signed
There was other testimony in respect to- the marriage of defendant to Izora Hunt. The court of its own motion in instruction numbered 4 expressly directed the jury that such testimony had been withdrawn from the consideration of the jury, and that they should not consider it in ariving at their verdict. In addition to this the record discloses that the court, when Mr. Hunt was being examined directly as to the marriage of his daughter to- the defendant, sustained the objection to that testimony. However, in the course of Mr. Hunt’s examination he did make a statement of facts from which the jury might draw the conclusion that Sassaman and his daughter were married; but with the ruling of the- court sustaining the objection to the testimony as to Mr. Hunt, when speaking directly of the marriage, together with the instruction withdrawing from the consideration of the jury all testimony in reference to any marriage, we are inclined to hold that this remedied any complaint predicated upon the admission of that testimony, and that what was done- by the court in that respect did not constitute such error as would authorize and warrant this court in reversing this judgment.
It is. next insisted that the court committed error in overruling the application of the defendant for a continuance. This application embraced the names of seven or eight witnesses, that were alleg’ed to be absent, hut upon the trial the record discloses that all of them appeared with the exception of three or four. One of the absent witnesses, Dr. Olin D. Whittier, it is alleged would testify that the general reputation of the defendant for truth and veracity, honestly and fair dealing and morality was good. By absent witness 0. A. Bode it is averred that the defendant expected to prove also that his general reputation for honesty, fair dealing,'peace and quiet and morality was good, and that the reputation of Anna Bentley Robbins in the city of St. Louis, where she resided, for truth and veracity, virtue and chastity and peace and quiet was extremely bad. It was further alleged in the application for continuance that he expected to prove by this witness an assault upon some certain person, whose name to the affiant was unknown. Absent witness Albert Bernard, it is averred, would have testified as to the bad general reputation of Anna Bentley Robbins for chastity and virtue; would have testified that she lived in open adultery with one Charles Bernard. As to the other absent witness, William Outterkirk, it is alleged he would have testified to a certain state of facts, which is detailed, indicating that Anna Bentley was not under any duress or restraint whatever by the defendant. It is also alleged that this witness, Outterkirk, would testify to the bad general reputation of Anna. Bentley for truth and veracity and for virtue and chastity, and it is also stated that this witness, Outterkirk, was acquainted with the handwriting of said Anna Bentley, and that certain papers now in the possession of the defendant, containing very dam
Upon tbe disclosures of tbe record there was nó error committed by tbe court in its action denying tbis application for a continuance.
In State v. Dettmer, 124 Mo. l. c. 432, it was said, in denying an application for a continuance, that “it has become tbe uniform rule of tbis court to defer to tbe trial court in such matters, and not to reverse its action, unless tbe party assailing that action makes it plainly to appear that tbe judicial discretion in that regard has been unsoundly or oppressively exercised,” citing State v. Banks, 118 Mo. 117.
To tbe same effect is State v. Horn, 209 Mo. 452. It has repeatedly been said by tbis court that tbe granting or refusing of an application for a continuance is a matter addressed to tbe discretion of tbe trial court, and while it is reviewable, it must appear to be unwisely or oppressively refused before tbis court will interfere with tbe action of tbe trial court. [State v. Horn, supra; State v. Crane, 202 Mo. l. c. 75, and State v. Dettmer, supra.]
Conceding for the purposes of tbis case that tbe application was in due form and indicated proper diligence in securing tbe attendance of tbe absent witnesses, yet, it is plainly manifest that tbe testimony of these witnesses was sought for tbe purpose of impeachment, and for tbe purpose of adding their testimony, to that of other witnesses upon tbe same subject. As to tbe good reputation of tbe defendant, that fact was established by two or three witnesses who testified in tbe cause, and as to tbe bad reputation of tbe witness, Anna Bentley Robbins, tbe testimony disclosed by tbe record is overwhelming that her reputation was bad, and, in fact, for chastity and virtue, her own testimony practically concedes her standing in tbe community in that regard. As to tbe other testimony of
There is an entire absence from the record of anything which indicates that the trial court unsoundly or oppressively exercised its judicial discretion in passing upon this application. We repeat that there was no error in the action of the court denying this application for a continuance.
It is further insisted in connection with the application for a continuance that the court committed error in permitting the State to introduce evidence upon the hearing of such application. The record discloses that the only evidence introduced consisted of the witness fee book and certain subpoenas and the clerk of the court was sworn for the purpose of identifying the records in his custody. There were neither affidavits nor oral testimony introduced for the purpose of controverting any of the allegations in defendant’s application for continuance as to what the testimony of the absent witnesses would be. The court clearly had the right to consult its own files and to* inquire of its clerk for the purpose of determining the good faith of this application. It has been ruled by this court that the trial court may not only inspect its own record
y.
Error is also assigned and predicated upon the remarks of the prosecuting attorney in his argument to the jury, as well as the action of the court, as contended by appellant, in compelling the jury to occupy a room in their final consideration of this case which was unsuitable for such pui-poses and was calculated to coerce the jury to reach a verdict.
The record discloses numerous complaints of remarks. made by the prosecuting attorney, but counsel for appellant simply direct our attention to what seems to have been, if made, the most serious statement made by the prosecuting officer, that is, that the prosecuting attorney in his closing argument to the jury, said that “the people in this court room want to see the defendant convicted. ’ ’ The fact that the prosecuting attorney made this remark has. not been duly authenticated by embracing it in the bill of exceptions which was signed by the trial judge, but there are affidavits in support of the motion for new trial as well as counter affidavits by the prosecuting attorney as to the use of these terms. The same may be said as to the room which the jury occupied in the consideration of this cause upon its final submission.
There were affidavits pro and con upon that question, hence it follows that we are simply, both as to the question of the remarks of the prosecuting attorney
VI.
This brings us to the final insistence on the part of the appellant, that is, that the testimony introduced upon the trial of this cause is insufficient to support the verdict. We have at great length recited in the statement of this cause the important parts of the testimony both for the State and the defendant tending to prove or disprove the issues presented to the jury. It can accomplish no purpose to repeat that testimony. It is. sufficient to say, after consideration of the testimony disclosed by the record in detail, that we have reached the conclusion that the testimony developed upon the trial of this cause was not only sufficiently satisfactory to warrant the jury in reaching
The record before us disclosing the many details connected with this terrible and outrageous murder, shows in many places a thorough corroboration of some of the most important features of Anna Bentley Bobbins’ testimony. It is argued that it is quite significant that this woman concealed her knowledge of the commission of this murder for months after it was accomplished. This may be conceded to be time, but that is no more significant than the fact that- the defendant,' who' claims that Anna Bentley committed this murder, with equal secretiveness concealed his knowledge of it.
We deem it unncessary to pursue this subject further. The testimony introduced on the part of the State furnishes ample support for the conclusion reached by the jury. The witnesses were before the jury and it was their province to judge of the character, standing and credibility of such witnesses, and the weight to be attached to their testimony, as well as their province to determine and settle whatever
This court will not undertake to retry this case upon the testimony as disclosed by this record, there being substantial testimony which fully warranted the finding of the jury. As has been repeatedly ruled by this court, such finding will not be disturbed for the reason that there may be some conflict in the testimony of the witnesses testifying in the case.
We have given expression to our views upon the leading and controlling propositions involved in the record before us, and the conclusion reached is that the judgment of the trial court should be affirmed, and it is so ordered.