203 Mo. 663 | Mo. | 1907
This is the second appeal in this cause. The first is found reported in 200 Mo. l.
The defendants were indicted at the November term, 1905, for the murder of John A. Clay on the 24th of November, 1905. When the cause was here at the October term, 1906, of this court, it was reversed for the sole reason that the circuit court refused to instruct the jury that they were at liberty to find one or more of the defendants guilty and the others not guilty as
As on the former trial, the testimony on behalf of the State tended to prove that all three of the defendants and one Hiram Blake were on the 24th of November, 1905, lawfully imprisoned in the State penitentiary situated in the eastern portion of Jefferson City, Missouri. That around the penitentiary buildings and grounds, there is a high stone wall, and the entrances into the penitentiary are through the western walls. A short distance north of the north wall are situated the tracks of the Missouri Pacific Railroad and a few feet north of the tracks is the Missouri river. In the testimony of the witnesses two entrances are referred to, one being through the office in the administration building of the penitentiary, entering the grounds through an ordinary door opening into an iron cage, the other one, the wagon entrance; this last-named entrance was used by all vehicles that had occasion to go in and out of the prison walls, and consisted of two sets of double doors situated some distance from each other. On the 24th of November, 1905, Matt. ~W. Hall was warden, R. E. See was deputy warden and John A. Clay, Ephraim Allison, J. K. Young and John Bruner were guards at the prison. It was the duty of Mr. Clay, to stand in the wagon entrance between the two double
1. It is insisted that- the court erred in giving the instruction 2 for the State, for the reason that this instruction authorized the jury, if they found that the defendants and another person, named Hiram Blake, entered into the criminal conspiracy to escape from the prison, and while acting in concert with each other, and in the furtherance of a common design to make such escape, either' of the said four persons, did in the presence of the other three, wilfully, feloniously, premeditatedly, deliberately and of malice aforethought kill John A. Clay, to find all three of the defendants guilty, because the said Blake was not named in the indictment. The proposition is thus advanced that, in order
2. It is further contended that the court erred in refusing instructions 7, 8, 9' and 10, asked by the defendants in which the defendants sought to have the court submit to the jury that if the defendants killed Mr. Clay with premeditation, and malice aforethought, but without deliberation, they were only guilty of murder in the second degree. And the further proposition that although the jury might find and believe all three of the defendants mnd Blake were convicts in the Missouri State penitentiary, and while so confined in said prison, they agreed and combined together to effect their escape therefrom, .but it was expressly understood and agreed among them that no officer or guard of the prison should be killed or injured, but that said escape should be effected solely by means of intimidating the officers and guards, and that while said convicts were carrying out their said purpose, the deceased, John A. Clay, was killed by one of said defendants, and that this killing was a departure from the purpose and plan agreed upon by said Blake- and the defendants, then the defendant or defendants not so instigating, counseling, abetting, aiding or advising said killing, was not guilty of the offense charged in the indictment, but that the party killing said deceased alone was guilty. These instructions were fully considered -on the former appeal in this case, and it was ruled that the court properly refused them on the ground that according to their own testimony, in addition to that of the State, they were
In view of their own testimony and all the evidence on the part of the State as to their acts and conduct, their statements that they did not intend to hurt or kill any one amounted to nothing in the eyes of the law and was so utterly inconsistent with the physical facts of the case that the circuit court would not have been justified in submitting to the jury that their offense was anything less than murder in the first degree, and this we ruled on the former appeal, and we are still of that opinion.
3. A careful consideration of all the evidence discloses no error in the admission of testimony nor in any rejection of any offered on behalf of the defendants. All questions as to the evidence were fully settled by the opinion of Judge Burgess on the former appeal, and it is unnecessary to repeat what was said at that time, or to discuss the various authorities so carefully collected by the Attorney-General sustaining our rulings on that occasion.
No. error appearing, the judgment of the circuit court is affirmed and the sentences which the law pronounces are directed to be carried into execution.