87 Mo. 268 | Mo. | 1885
The defendants were jointly indicted .and tried, the defendant, Henry S. Stair, for killing Jacob Sewell, and Nannettie for'being present, aiding and abetting in the murder. They were both found guilty and sentenced to be hanged. The evidence as to the killing is circumstantial only. Jacob Sewell, the deceased, was .•advanced in years, and he and his son were camping near Nevada. They had with them an old and a new wagon, four horses or rather ponies, a few old plows, some bedding, dishes and the like. Defendants were, for the time, living atNevada. Jacob Sewell called to see them, •and they visited him and his son at their camp. De
After the arrest a knife was found in Henry S. Stair’s coat pocket with blood upon it. W ounds were found upon the head and neck of Jacob Sewell, one upon the head having the appearance of having been made with the pole of an ax, and another upon the neck which appeared to have been made with a knife, either of which, it is said, was a mortal wound. The defendants were arrested on the seventh of the same month, on the road, then having the horses, wagons, etc., in their possession; one wagon was covered and in it were found bloody articles of clothing and bedding. There were many more circumstances in proof which need not be detañed.
Error is assigned in the admission of evidence on behalf of the state in the foñowing respects: Two dresses of Nannettie Stair, one worn by her on the day of her arrest, and the other on the day of homicide, with some other articles of clothing,, all of which were found upon her person or in the wagon, and all of which had blood stains upon them, were introduced in evidence and inspected by the jurors. These stains constituted a part of the chain of circumstances relied upon by the state. Such stains upon the person or clothing of the parties accused have always been re
When Henry S. Stair was arrested the officers, upon search, found in his possession a pocket book, in which was a paper writing given directions for curing ring-bone and on which were also written the following words: “Do you think it safe to try to kill them and wrap them up in the clothes and tell that they went off in buggy.” This writing was read to and inspected by the jurors. The questions are, was it shown to be in the handwriting of Henry S. Stair, and was the paper properly admitted as evidence against both or either of the defendants ? Dr. Rockwell was called and stated that he had seen Henry S. Stair write two or three notes to his wife and had seen Mm sign his name to another one ; and that he thought he could tell Stair’s writing. The paper was then handed to him and he said he should judge it was Stair’s writing. He was not positive, but he should judge it was Stair’s from a comparison with his memory of what Stair wrote. All evidence of handwriting, except when the witness saw the document written, is in its nature comparison. If the witness has the proper knowledge he may declare his belief. One of the modes of acquiring that knowledge is from having seen the person write. It is held suffi
Unanswered letters of other persons, found in the possession of the accused, and not shown to have been acted upon by him, are not evidence against Mm. Whart. Grim. Evid., sec. 682, and cases cited. But' where the defendant was indicted for larceny of a negro, the state read in evidence properly, it was held, a pencil memorandum found in the defendant’s pocket-book when arrested, with the names of the owners of the slave written thereon. We do not say here, as was said there, that the memorandum could be read without proof of the handwriting. The writing here in question was , as we must take it, in the handwriting of Henry S. Stair and apparently addressed to some one not named. While it does not appear when it was made, still it was Ms own statement and the evidence in the case tends to show that he at least acted upon the suggestion. It was competent evidence as against Mm. But the more difficult question is, was it admissible as against Nannettie'í
In People v. Thomas, 3 Parker C. R. 256, the defendant was indicted for having in his possession an altered bank-bill, and while under arrest his wife was searched and the state showed that she had in her possession engraved figures cut from genuine bills suited to that species of forgery and this evidence, it was held, was improperly admitted. . There is evidence here tending to show that these defendants, who were husband and wife, certainly occupied that relation to each other, were at the camp of Sewell giving him assistance while sick, at least, professing so to do. Some of the evidence also tends to show that another person was present. It may be conceded that these and the other circumstances in evidence made out a prima facie case of conspiracy between these defendants to take the life of Sewell, so that
It was said in State v. Duncan, 64 Mo. 266 : “ Declarations of confederates against each other are only admissible as part of the res gestae, and unless they accompany acts done in the prosecution of -the common object they are inadmissible. ’ ’ Again: ‘ ‘ And here also care must be taken that the acts and declarations thus admitted be those only which were made and done during the pendency of the criminal enterprise and in furtherance of its objects.” Greenlf. Evid., sec. 111. This writing is in the nature, of a declaration of Henry S. Stair and we can but conclude that it was error to admit it as evidence against his co-defendant. The burden of laying the proper foundation for the admission of this evidence, as against her, was upon the state. The jurors were not instructed that they should not consider the evidence as against her, as was done in State v. Talbott et al., 73 Mo. 347. I may add, the Attorney General does not, and properly, we think, regard it as his duty to insist upon the competency of this evidence as against Nannettie. We can not say this evidence was harmless. She makes evidence to the effect that she knew nothing about the murder until the sixth. The value of that evidence was for the jurors to determine. The admission' of this paper would tend to destroy whatever credence might otherwise be given to her statements.
The evidence, though circumstantial, is quite conclusive as to the guilt of Henry S. Stair, and the objec
As to Henry S. Stair the cause was well tried and we find no error as to him. The judgment as to him is, therefore, affirmed, and as to Nannettie Stair the judgment is reversed and as to her alone the cause is remanded for new trial.