200 Mo. 571 | Mo. | 1906
On June 9, 1905; the prosecuting attorney of Iron county filed an information, duly verified by his affidavit, wherein he charged the defendant William Spaugh, Jr., and Mary E. Spaugh and Arthur Spaugh with murder in the first degree, of one John W. Polk, in said county of Iron on the 25th day of May, 1905. The information was in four counts; the first count charged that the mortal wound was inflicted with a shot gun; the second count that the mortal wound was inflicted with a rifle; the third charged that the mortal wound was inflicted with a revolving pistol, and the fourth charged that the mortal wound was inflicted with a shot gun and rifle and a pistol.
On the application of the defendant a change of venue was granted from Iron county to Reynolds county on the ground of prejudice of the inhabitants of Iron county against the defendants.
On the 29th of November, 1905, Arthur Spaugh, one of the defendants, prayed for a severance, and it was granted. At the same term, the defendants William Spaugh, Jr., and Mary E. Spaugh were jointly tried, and the defendant was convicted of murder in the first degree, and Mary E. Spaugh of murder in the second degree. A motion for new trial was sustained as to Mary E. Spaugh, but overruled as to the defendant. The defendant also filed a motion in arrest, which was heard and overruled. Thereupon the defendant was sentenced to be hanged on the 16th of February, 1906. From that judgment and sentence he has appealed to this court.
No objections or exceptions were taken to any of the jurors.
On the part of the State the evidence tends to show that Mary E. Spaugh is the wife of William Spaugh, Sr., and the mother of the defendants, William Spaugh, Jr., and Arthur Spaugh, and that William Spaugh, Sr., and his family, consisting of his wife and two sons, lived in the town of Ironton in Iron county, a short distance from the Iron Mountain depot in said town, on the 25th day of May, 1905. It also appeared in the evidence that the deceased, John W. Polk, was the sheriff of Iron county, and was serving a second term in said office at the time that he was shot and killed in the house of William Spaugh, Sr., on the 25th of May, 1905. The evidence also discloses that the sher-. iff and his family occupied the residence attached to
Mr. Downey, the station agent, called up the telephone operator at the central station and asked to have the marshal sent down to the station. In about twenty minutes the sheriff came to the depot and asked the agent what the trouble was, and was told that Edgar had reported that Spaugh had hit him. When the sheriff came out of the depot, he met Ernest Rieke and asked him how it was and how it happened and Rieke told him about the encounter in the restaurant and told the sheriff that he thought Edgar’s eye was put out and he was bloody all over his face, and told the sheriff that Spaugh had gone down the street after-wards toward his home. Thereupon the sheriff left and went to the Spaugh home. The deceased was seen by several witnesses as he approached the Spaugh home, and was seen to stop at the front gate, 'which was only a few steps from the house. The evidence on the part of the State further tended to prove that William Brown received the telephone message to go to the Spaugh home and went directly there, and was in the yard of the Spaugh premises just before the sheriff came to the gate, and heard defendant and his mother and his brother Arthur talking on the front porch of their home. Defendant told his mother and brother
News of the shooting spread rapidly through the town, and citizens and officers soon arrived at the Spaugh home. The dead body of Sheriff Polk was found lying on the floor of the kitchen in a pool of blood; his face was toward the floor and his coat tail raised just above the hip pocket. No weapon was found on the deceased, but his empty scabbard was in his hip pocket. His head was close to the door, which was directly in front of the gate through which he had entered the yard, his left hand under his face and his right hand under his body. There were four wounds on his body, as follows: A gun-shot wound which entered about three inches below the right shoulder blade and five inches from the back bone, and penetrated the' lungs and liver. Another gun-shot wound entered the head two inches above the right ear, passed through the brain and lodged between the left eye and left ear.. Another gun-shot wound entered the body under the left arm; it was three inches square and cut the heart loose from its tendons, passing through the left lung and carrying the gun wadding and parts of deceased’s suspenders into the wound and up nest to the back bone. Another wound was made by a shotgun, which the physician testified must have been within three feet of the deceased’s body, at the time it was fired.
Testimony on the part of the State tended to prove that the mother was in the room where the dead body lay and when the witnesses arrived she was busy getting supper ready, brushing off the dining table and spreading the table cloth. The body of the dead sheriff lay on the floor, his head being within a foot and a half of the cook stove; as Mrs. Spaugh walked around the room she stepped over the body of the deceased, apparently unconcerned at what had happened. She was arrested and placed in jail, but the defendant William Spaugh and Arthur his brother fled from the town, and were not arrested for six days.
The town marshal, John I. Marshall, who is also constable of that township, formed a posse and made diligent search for defendant and his brother, hunting for them day and night for about six days. After six days’ search the defendant William Spaugh and. his brother Arthur were located in a deserted cabin in Madison county, and the newly appointed sheriff, John I. Marshall, and a posse surrounded this cabin one morning about daylight. As soon as the fugitives saw that the officers were near them, they opened fire and a battle between the sheriff and' the posse on one side and the defendant and his brother on the other side, ensued, which lasted about thirty minutes, some fifty shots being exchanged. In this battle Arthur Spaugh was wounded on the arm, and he called to the sheriff that they would surrender if the posse would not kill them. Upon being assured by the sheriff that they would not be hurt, the defendant and his brother held up their hands and surrendered to the officers. In this posse was Dr. Bamhouse, and the sheriff requested him
At the time of their arrest defendant William Spaugh and his brother Arthur had in their possession a double-barrel shotgun, some loaded shells, a Winchester rifle, some cartridges and some dynamite caps. The defendant and his brother were placed in the county jail in Ironton and Thomas Sharp, the deputy sheriff of Madison county, visited them the same day. Mr. Sharp asked the defendant how he happened to kill the deceased and he replied that he was egged up to do it,” and when asked who did it, defendant said: “We both of us did it, one of us used a shotgun and ■the other a Winchester.”
The next day Dr. Marshall was taken by the sheriff to the jail to dress the wound on Arthur Spaugh’s
The State’s evidence further showed that in. October, 1904, one Henry Trammel had been fined for some misdemeanor and served some time in jail. In going home, this witness, passed the Spaugh residence and had a conversation with Mrs. Spaugh in the presence of defendant and his brother. Mrs. Spaugh expressed indignation at the way the witness had been treated and said: “If I was you and William and Arthur I would take my gun down and kill every one of them darned officers. If you had the spunk that I have, you would do it.”
On behalf of the defendant the evidence tended to prove that defendant William Spaugh had a difficulty on May 25, 1905, with the Edgar boy at Eascher’s restaurant, and that he went home and reported the same to his mother, who agreed to loan him the money to pay his fine; that in a few moments, Arthur Spaugh and William Brown came and sat down on the porch beside the defendant. Presently the defendant saw Sheriff Polk coming down the street and supposed he was coming to see about this trouble; that the sheriff called to the defendant from the gate and told him to come out there and defendant asked if he had a warrant, but the sheriff declined to say what he had; that defendant got up to go into the house to get the money from his mother when he heard the sheriff coming up on the porch and looking around saw that the sheriff had a pistol drawn on him; that the sheriff fired once at the defendant but missed him, although only two and a half feet away; that the defendant then ran out of the kitchen door into the back yard when he heard several shots fired; that he did not see any of the shots fired, but was close to the door at that time; that Arthur
I. The defendant assigns various grounds for the reversal of the judgment of the circuit court and they will be examined and considered in the order of the brief of the counsel for the defendant.
It is insisted that the circuit court should have directed a verdict of acquittal at the close of the State’s case, for the reason that there was nothing in the evidence to show that the defendant killed the deceased, or had anything to do with the killing other than that he was in the room when the deceased was shot, and there was no evidence of a conspiracy or common design on the part of Arthur Spaugh and the defendant William, and we are referred by the learned counsel to Green v. State, 13 Mo. 382, and State v. Walker, 98 Mo. 95, but these two cases but announce the well-settled doctrine that a conspiracy can seldom be shown by direct and positive evidence, but may be inferred from the circumstances attending the commission of an offense, and that it is for the court in the first place to determine whether there is any evidence of a conspiracy, and for the jury to determine whether there was one and its objects, and that where a conspiracy is es
But the State’s case as against the defendant does not rest alone upon the evidence of the common criminal design and conduct of the defendant and Arthur Spaugh, for there was ample evidence tending to show that the defendant anticipated an arrest by the sheriff on account of his criminal assault upon young Edgar, and in view of such arrest, he declared to his mother and Arthur, in the presence and hearing of Brown, that he would kill whoever came to arrest him, and when the.sheriff reached the gate of the Spaugh home and defendant was directed by the sheriff to- come out to him, the defendant himself called to the sheriff and inquired if he had a warrant for him, and instead of obeying the command of the sheriff to come out to the
In State v. Bailey, 190 Mo. 280, as well as in State v. Collins, supra, we had occasion to cite and approve the doctrine as laid down in People v. Molineux, 168 N. Y. 264, and we reached the conclusion in the Bailey case that evidence which was illustrative of the principal act in the tragedy and a part of the system of criminal acts so connected together that each tends to establish the guilty intent, design' and purpose of the other, was competent. In this ease the assault by the defendant upon young Edgar illustrates and demonstrates the motive which defendant had in shooting the deceased. It is so interwoven and blended with the conduct of both the defendant and the deceased that the presence of the sheriff at the home of the Spaughs and the conduct of the defendant in shooting the sheriff at that time, cannot be understood without that testimony. In a word, it furnished proof of the motive which actuated the defendant in firing the fatal shot, and, as held in State v. Collins, 181 Mo. l. c. 261, whenever proof of motive is an essential ingredient of the
Neither was there any error in permitting the State’s witness Baldwin to testify that he reported to Sheriff Polk that there was trouble and he was wanted at the depot. The only objection made to this witness’s testimony was that it was incompetent, which we have often held amounts to no objection whatever. But even if a proper objection had been made, it should have been overruled, for the reason that it was perfectly competent for the State to show that the sheriff had reasonable cause to suspect that a felony had been committed and hence his authority to
III. It is insisted that the circuit court erred in admitting in evidence certain statements or confessions made by the defendant to Thomas Sharp- and Dr. Barnhouse, for the reason that the confession to Sharp was to an officer after the arrest of the defendant and while he was in the Iron county jail, and the confessions made to the other two witnesses were made immediately after the arrest and capture of the defendant while he was suffering from wounds. In each instance the trial court excluded the jury and passed upon the
The rule as to- admissibility of confessions by a defendant has been long established in this State. In State v. Patterson, 73 Mo. 695, the subject received an exhaustive examination by this court and the doctrine was announced that a confession is presumed to be voluntary unless the contrary is shown. In order to exclude evidence of a prisoner’s confession, it must appear affirmatively that some inducement to confess was held out to him by or in the presence of some one having authority. In the case at bar, there was evidence on the preliminary examination that no inducements were held out to obtain a confession by the defendant and unless there was error in admitting the confession it is no ground for reversal of the judgment. As to the confession made to Sharp, it is clear that Sharp was not the officer in charge of the defendant and had no authority to make any promises of leniency to the defendant. It was ruled in State v. Patterson, 73 Mo. 695, that “a confession to be inadmissible must be made to an officer of the law, in .consequence of improper influences exerted by him, and if no threat of harm or promise of worldly advantage be made by such official, or by the master of the accused when directly concerned, the confession is admissible;” and in State v. Jones, 171 Mo. l. c. 406, it was said: “It has never been ruled that merely because the defendant concluded to testify that his confession was obtained by duress or promise of immunity, the confession must be excluded.” [State v. Brennan, 164 Mo. 487; State v. Hopldrk, 84 Mo. 278.] As to the conversations with Dr. Barnhouse and Dr. Marshall, the defendant began the conversations himself and made the statements of his participation in' the killing of the sheriff without any promises being made or threats of violence.
Defendant’s counsel objected to the testimony in regard to what occurred between Rascher and the defendant at that time, but assigned no reason for the objection; a few minutes later, however, the trial court of its own motion concluded that the evidence as to the defendant kicking Rascher was objectionable, and instructed the jury that this evidence was withdrawn and that they should disregard and not consider the same. This is now assigned as error by the defendant. This evidence of the defendant kicking the witness was so intimately connected with the assault on Edgar that it should be treated as a part of the res gestae, but it is unnecessary to hold that it was, inasmuch as the most that can be said of it is that it was simply irrelevant and clearly was not so prejudicial as to work any harm to the defendant, in view of the fact that the court of its own motion promptly withdrew it and instructed the jury to disregard it.
Y. Defendant also complains that the court permitted the prosecuting attorney, Mr. Damron, to explain why William Brown, a witness for the State, was arrested immediately after the killing' of John W. Polk. It appears that when Brown was on the stand he was cross-examined by defendant’s counsel and the fact elicited that he had been put in jail the day of the homincide and released about one o’clock, and that after-wards he was put in jail and kept about one-half a day and then released, and again put in jail, and he gave a sworn statement. The trend óf this cross-examination
VI. It is also made a ground of complaint that the court permitted the State to show that immediately after the killing of the sheriff, the defendant and his brother Arthur armed themselves and fled to the mountains and for six days evaded arrest and when finally located in Madison county they resisted to the utmost, and when captured had in their possession a shotgun, a Winchester rifle, a revolver and a quantity of ammunition, on the ground that this evidence could only tend to arouse the prejudice of the jury, and that the pistol and dynamite cartridges were not shown to have been used, or in any way connected with the crime.
That the flight of one charged with a crime may be shown as an evidence of guilt is no longer open- to ■doubt. In State v. Moore, 101 Mo. 330, Judge Sherwood, speaking for this court, said: “Plight, escape ■or attempt to escape, or to effect prison breach, all constitute legitimate evidence, where the guilt of the party ■on trial is in question. How much weight it is to possess depends, of course, upon the individual circumstances of each case. [Wharton’s Cr. Ev. (9 Ed.), sec. 750; State v. Williams, 54 Mo. 170; State v. Jackson,
- And on the like principle it was not error to permit the State to show that very soon after the homicide and as defendant was escaping he shot at the negro Ar-nett who was running towards him. The defendant obviously suspected the negro was pursuing him. [State v. Sanders, 76 Mo. l. c. 36; State v. Vinso, 171 Mo. 587.] It was admissible not for the purpose of showing’ an additional crime, but as an indication of their guilt of the crime for which they were on trial. There are some other objections to testimony but they are not seriously insisted on and they were none of sufficient importance to work a reversal at any event.
VII. The instructions given by the court are assailed. The instruction on reasonable doubt is criticised. That instruction was in the following form: “4. Ton are instructed that the law presumes the in
VIII. It is next insisted that the trial court erred in failing to instruct the jury in relation to defendant’s knowledge of the official character of the sheriff. Indeed, this is one of the most important propositions arising upon this record. Unquestionably it is the law of this State that if a defendant slay an officer of whose official character he has no notice, it is homicide in self-defence, if the killing was apparently necessary to save the defendant’s life. [State v. Underwood, 75 Mo. l. c. 238.] In Wharton’s Crim. Law, the learned author lays down the doctrine on this subject, as follows: “Nor should it be supposed that this exemption from distinctive liability, in cases where the officer’s official character is not known, is founded in technical reasoning. Not only is it essential to the rights of the citizen that he shall be required to submit to arrest only when the official character of the demand is made known to him, but it is essential to the dignity of the State that its servants should be sheltered by these official prerogatives only when they are acting legally, and give no
Was there any such issue in this case? On the part of the State the testimony divulged that the deceased, John W. Polk, was the sheriff of Iron county, and at the time he was killed by defendant was serving his second term as such officer. He was living in the same town, Ironton, with the defendant, and only a short distance from defendant’s residence, and when the deceased reached the gate of the Spaugh home, he addressed defendant and said, “Come out here Will.” Whereupon defendant said to him, “Have you got a warrant ? ” In addition to this clear recognition of the mission of the sheriff, after his arrest the defendant stated to different witnesses for the State that he and his brother had killed “Sheriff Polk” and his mother had nothing to do with it. But the defendant was a witness on the stand in his own behalf, and he was asked by his counsel: “Did you see Sheriff Polk while you stood on the porch?” Ans. “Yes, sir.” Q. “Where was Sheriff Polk when you first saw him?” Ans. “Coming up from the depot.” Q. “What did the sheriff say to you when he arrived.at the gate?” Ans. “He told me to come out there, that he wanted to see me, and I says, ‘Have you got a warrant for me?’ and he says, ‘It don’t make any difference what I have got,
IX. It is insisted that the circuit court erred in not giving the defendant’s instructions numbered 1, 2, 3 and 5, for manslaughter in the fourth degree. That the defendant knew the official character of the deceased and that he was the sheriff of Iron county there can he no doubt whatever. Neither does the evidence leave any doubt that he knew the deceased had come to arrest him for the assault committed which defendant had made upon Edgar. Neither does the evidence leave any doubt that he apprehended that the sheriff had come to arrest him for the assault. Whether the defendant was entitled to an instruction for manslaughter in the fourth degree must be resolved by a consideration of the respective rights of the sheriff and defendant when the sheriff went to the home of defendant to arrest him. That the sheriff was there on that mission the testimony abundantly established. He had been called upon by the agent of the railroad and had responded and met Rieke who told him that defendant had assaulted young Edgar and he thought had put his eye out, and that Edgar’s face was covered with blood.
By section 1846, Revised Statutes 1899, it is made a felony for any person on purpose and with malice aforethought to put out an eye and this constituted mayhem at common law. It is the settled law of this State that a sheriff or constable does not need a warrant to justify him in making an arrest if he has reasonable cause to suspect that a felony has been committed by the party he seeks to arrest. Blackstone, speaking of a constable, says: He may, without warrant, in case of felony actually committed . . . upon probable suspicion, arrest the felon.” [4 Bl.
But there is another equally conclusive reason why the court should not have instructed on manslaughter ; because the defendant did not pretend that he shot and killed the deceased on account of any lawful provocation and in the heat of passion; on the contrary, he testified that he did not shoot the deceased, made no threats against his life and did not know that the sheriff had been shot until sometime after the shooting. The is
X. It is also urged that the court erred in giving an instruction for murder in the first degre'e, for the reason that the evidence shows a lack of the element of deliberation. This objection, we think, is without merit, when the evidence of the witness Brown as to the threats of the defendant that he intended to kill anyone who attempted to arrest him, and his conduct in retreating into the room and arming himself with a deadly weapon and in shooting down the officer who had come to arrest him for an offense which he knew he had just recently committed, is considered. The evidence tends to show that he had ample time to deliberate and to form the conscious purpose and intent to kill the officer and gratify the feeling of revenge which he had expressed to his mother and brother prior to the killing of the officer who came to arrest him.
As to the objection to the giving of an instruction for murder in the second degree, it is sufficient to say that the defendant is in no position to complain of that instruction because he was not convicted of that crime, and the instruction was more favorable to him perhaps than it should have been.
Exception is also taken to the definition of the word “deliberately” in the first, instruction, because it is said that it does not properly define violent passion. The court instructed the jury that deliberately meant: “In a cool state of blood. It does not mean brooded over, considered, reflected upon for a week, a day or an hour, but it means an intent to kill executed by a person not under the influence of violent passion sudden
The objection to instruction numbered 2 is that it authorized the jury to convict the defendant on evidence that was given .against Arthur Spaugh, his co-defendant, but the instruction is not obnoxious to the criticism; it only permitted the jury to find the defendant guilty if he and his brother willfully, deliberately and premeditatedly and of their malice aforethought did each with a gun, that is to say, one of them with a shotgun and the other of them with a Winchester rifle, or one with a shotgun and the other with a pistol, shoot and kill John W. Polk. By this instruction the defendant was held responsible for his own act and the murderous act of his brother committed jointly with the defendant.
XI. Within the four days after the rendition of the verdict the defendant filed his motion for a new trial, assigning forty-five grounds therefor, and after the expiration of the four days, by leave of the court, he added a forty-sixth ground, to-wit, that Albert Chit-wood, one of the twelve jurors who tried the case, had formed and expressed an opinion before he was selected as one of the jurors, and had stated that if he were to sit on the jury that should try the Spaughs he would hang the jury if they did not hang the Spaughs. In support of this ground for new trial the defendant offered the testimony of George Davidson, which tended
Thereupon the court overruled this ground of the motion. The trial court had these witnesses before it and had opportunity to see the witnesses and observe their manner of testifying, and. there was substantial evidence to support its finding and in such case this' court will not undertake to interfere with its judgment.
XII. The motion for new trial alleges various acts of misconduct of the jury and the officer having them in charge after the trial had been commenced and the jury had been put in charge of an officer.
The first of these grounds is that the jury were permitted to separate after the trial began. The evidence on this point tended to prove that during the trial, and before the jury had retired to consider their verdict, one of the jurors, Hodges, went with the deputy sheriff, Fitz, from the jury room one night to attend a call of nature. The remaining eleven jurors remained in the jury room locked up. During his absence Hodges, the-juror, did not see any person except the deputy sheriff and did not talk with him in regard to the case. To reverse a judgment on such a showing as this and for such a separation would be trifling with the administration of justice. [State v. Collins, 86 Mo. 245; State v. Washburn, 91 Mo. l. c. 574; State v. Murray, 91 Mo. l. c. 103; State v. Gregory, 158 Mo. l. c. 147.]
It was also insisted that the jury were guilty of misconduct, because for want of proper place-, they occupied the circuit court room at night and on one occasion one of them examined a copy of the general statutes to see how much fees they were allowed for their jury services, and on another evening one of them read a portion of an opinion from one of the Missouri
Again, it appeared from the evidence of one of the witnesses on the motion for new trial that at the beginning of the trial the prosecuting attorney brought into the court room a shotgun, a "Winchester rifle, a pistol and a. knife, which he placed under the desk of the clerk, and these weapons remained there during the trial. The shotgun and the pistol were identified and introduced in evidence. For some reason, whether through inadvertence or other cause,' the rifle and the knife were not introduced in evidence, but during his argument for the defendant, Judge Frazier, one of the counsel for the defendant, said: “Where is the Winchester rifle? The echo comes to me that it is right where that clerk’s desk is there.” As far as the record shows this was the only reference made to this rifle, except that the testimony showed that when the defendant left his home on the day of the homicide he was armed with a Winchester rifle. None of the jurors examined this rifle, or saw it until this allusion: to it by the counsel for the defendant. The most that can be said of this assignment is that the rifle was placed under the clerk’s desk and was not offered in evidence, but was left in the court room in which the jury held their deliberations and was examined by two of them. The testimony on behalf of the State tended to prove that the defendant told Dr. Barnhouse that he, defend
Error is also assigned because the sheriff Jordan, permitted his deputy, H. L. Fitz, to enter the jury room and to deliver to each of the jurors a bottle containing whiskey and to converse with them. As to this point Mr. Jordan, the sheriff, testified that that night after the close of the argument and the jury were about to retire, Fitz, his deputy, came to the door and the sheriff opened it and Fitz gave the sheriff two pint bottles of whiskey and a small glass which held about fifteen drams. The sheriff testified that the jury were very •much worn out and fatigued and had requested him on several occasions during the trial to get them a little whiskey, that it might help them, and he spoke to a gentleman in the town, and he said to him that he had some whiskey coming and if he got it he would let him have it. This man gave the whiskey to Fitz to hand to the sheriff. The sheriff testified that he divided the
As to the final contention, that the verdict of the jury was the result of passion and prejudice, we have only to add that in the careful examination of the evidence in the case, we have been unable to discover anything which tends to sustain that criticism of the verdict. It was the function of the jury to weigh the evidence and determine the questions .of fact, andif they believed the evidence of the State, which was in the main entirely uncontradicted and unimpeached, and given by officers of the law and professional men, they were justified in finding that the defendant on the day of the homicide committed an unprovoked and brutal assault upon young Edgar and then retreated to his home which was well equipped with guns and ammunition, and that then and there he and his brother held counsel and deliberately determined that he would not submit to arrest for his assault upon the young man. He saw the sheriff, whom he knew to be the sheriff of the county, approaching his home and he fully apprehended the mission of the sheriff, as is evidenced by his significant question to him as to whether he had a warrant, and when the sheriff told him to come out to the gate, instead of obeying the command' of the officer and submitting to a lawful arrest he retreated into the
We have patiently reviewed and considered all the propositions advanced by the counsel for the reversal of the judgment and in our opinion there is no reversible error in the record, and the judgment of the circuit court must be and is affirmed, and the sentence which the law pronounces is ordered to be carried into execution.
