Lead Opinion
— William Walker, the defendant, and fifteen other persons, were indicted in the Christian county circuit court for killing Charles Greene on the night of the eleventh of March, 1887. The cause as to this defendant came to trial, after two continuances, and he was found guilty of murder in the first degree and sentenced to suffer the death penalty.
There was an organization in that county known as Bald Knobbers, which had its signs, grips and passwords. The members were admitted by taking a pledge to. keep the secrets of the order and to protect each other, under the penalty of death. On the night of the homicide, the defendant and his father, the latter, chief, and the former, assistant chief, and other members of the band, to the number of twenty or thirty met at an out-of-the-way place, called the old smelter, which was
The evidence of James Edens and the three women is, in effect, that the inmates of the house were asleep ; that these men on the outside aroused them by cursing and using such language as “ Get out of there or we will kill you;” that the assailants at the same time broke the window glass with their guns and fired three shots into the house through the broken window; that others. of them broke down the doors, entered the house, fired a dozen shots and fled, having killed William Edens and Greene and wounded James Edens. It seems some of the inmates of the house got their pistols and shot as best they could, wounding the defendant. At the time defendant was wounded, he dropped his gun and left it in the house.
The objection is placed on the' ground of joint interest in the prosecution. That is a different indictment from this, and an indictment for a different offense, though the general facts of the two cases are the same. A partner in a crime is not an incompetent witness, simply because of the turpitude of his conduct. The admission of accomplices, as witnesses for the state, is justified by the necessities of the case, it being often impossible to bring the principal to justice without them. 1 Greenl. Ev., (13 Ed.) sec. 379. As there are, in the absence of legislation on the subject, some qualifications upon the right of persons who are parties to the record to testify in civil cases, so there are qualifications of a like character in criminal cases. Wherefore, says Bishop, the law is, that “a joint defendant cannot be a witness for or against the others, even on a separate trial, • till the case is disposed of as to him by a conviction or acquittal, or by a nolle prosequi.” 1 Bish. Crim. Proc., (3 Ed.) sec. 1166. In regard to defendants in criminal cases, if the state would call one of them as a witness against the others in the same indictment, this can be done only by discharging him from the record. 1 Greenl. Ev., sec. 36. It is plain to be seen that the disqualifying interest, if such it may be called, must be in the event of the suit, and not simply in the question to be decided. Hence Mr. Bishop states the rule on the other hand in these words: “If the accomplice is not indicted, he is, of course, competent; so he is if indicted
Our statute provides : “ When two or more persons shall be jointly indicted or prosecuted, the court may, at any time before the defendants have gone into their defense, direct any defendant to be discharged, that he may be a witness for the state.” Revised Statutes, section 1917. We have held in construing this statute, that a defendant jointly indicted with others, but not put upon his trial, cannot testify on behalf of the state ; the mere severance for the purpose of a trial does not make him a competent witness for the state. State v. Chyo Chiagk, 92 Mo. 395. But this ruling has nothing to do with one not jointly indicted ; nor does the statute disqualify persons who were previously competent witnesses. It follows that these witnesses, not being parties to this record, the snit having been dismissed as to two of them, and the other having been acquitted, are competent witnesses for the state. They have no such interest by reason of the fact that the other indictment is still pending against them and this defendant, as will disqualify them from testifying on behalf of the state, though the evidence to support the two prosecutions is, in general, the same.
2. Objection is made to the evidence of the state showing that defendant was a member of the band of Bald Knobbers, and that some of the band made a raid on the house of William Edens. It is argued that such evidence would be relevant only after the state had offered evidence showing that the band was an organization formed for the purpose of killing Greene and Edens, or to kill generally, or to do some act reasonably including the taking of hnman life. Where a crime is perpetrated by several persons, it is necessary to show a combination or conspiracy in order to make the acts and declarations of one the acts and declarations of all.
Indeed, the conspiracy and the object thereof may bé deduced from the attending circumstances connected with the transaction in question. Thus in the case of McManus v. Lee,
Taking the foregoing to be correct principles of law, the particular point of the objection would seem to be, that the evidence fails to show that this act of homicide was within the common enterprise. Mr. Bishop says : “ Where therefore persons combine to do an unlawful thing, if the act of one, proceeding according to the common plan, terminates in a criminal result, though not the particular result meant, all are liable.” 1 Bish. Crim. Law, (6 Ed.) sec. 636. Now some of the evidence, taken by itself, would tend to show that when these persons left the old smelter, it had been concluded todo no violence to any one. One witness says he did not hear any propositions at the old smelter, except to go down on Swan creek and pour out some whiskey belonging to Roberts. Another says that the proposition was not accepted. One witness says there were propositions made to whip designated persons and he thinks William Edens was one of them. Johns says some proposed to break up and go home, some proposed to go up and “tend to the Slickers,” and some objected, and then the crowd went off in the direction of Edens’ house. The general scheme of the band embraced within it the destruction of property and maltreatment of persons, and it is a fair inference from the evidence that they left for the very purpose of visiting William Edens. They were armed, masked, and in every way conducted themselves as evil-disposed persons, bent on mischief and the perpetration of crime. The evidence certainly tends to show that the persons who killed Greene and Edens were then acting in accordance with the purposes of this band, and that is sufficient to admit the acts and declarations of all, both at the smelter, and on the route to the place of the homicide. Even if this defendant had only entered into the conspiracy after it had proceeded in the raid which resulted in the death of Greene
3. Graves states that he and three others came up with defendant and six others after they had all left the scene of the homicide, and when they were about a mile and a half away. David Walker, the father of defendant, called a halt, and said he would take defendant, who had received a shot through the right leg, to Douglas county; and that David Walker then gave orders, which the witness related over the objection of defendant. He says : “I don’t remember what others, except Inman, McGuire, Applegate and myself were to testify to; we were to go home and if there was any arrest made, we were to swear that we were at Inman’s playing cards until eleven o’clock ; defendant was right there present.” We think this evidence was competent. It is plain to be seen that all the parties received their instructions what to do in order to prevent a disclosure of the crime. If it must be said the conspiracy had ended, still the evidence is that of statements made in defendant’s presence, and to which it is plain to be seen he was a party. Admissions may be implied from acquiescence of the party to what is said or done in his hearing. 1 Greenl. Ev., sec. 196; Whart. Orim. Ev., sec. 678; State v. Miller,
4. Numerous other objections are made to the admission of evidence relating to minor matters. On an examination of the record it appears the objections were general only, and hence do hot entitle the party making them to be heard in this court.
5. This brings us to the instructions. The use of the word real, in the instruction upon reasonable doubt,
6. As to the third instruction, it is sufficient to say that it was not necessary to use the word “feloniously ” in defining murder in the first degree. It was not used in that connection in this case. It is employed to classify offenses, but it is not a distinct element of a crime. State v. Snell,
7. The sixth instruction, defining deliberation, concludes with these words: “ And not under the influence of a violent passion suddenly aroused, and the passion here referred to is that and that only which is produced by what the law recognizes as a just cause of provocation or a lawful provocation.” It is, of course, the duty of the court to define what is a just or lawful provocation, but there is no evidence, whatever, in this case tending to show any provocation which will exclude deliberation, and hence the instruction could have worked no harm, to defendant, and does not contain reversible error. State v. McGinnis,
9. The sixteenth tells the jury that flight raises a presumption of guilt; and if, after Greene was killed, defendant fled from his home to Arkansas, or another part of the state, ‘ ‘ for the purpose of avoiding arrest, trial or conviction for the killing of Greene, then you will consider his flight in connection with the other evidence in arriving at your verdict in the case.” Defendant objected to this instruction on the ground that it is too strong in this, that it says you will consider his flight, etc. Under the facts hypothetically stated, it was certainly the duty of the jury to take into consideration the flight in connection with the other evidence, and this is all the jury are told to do. No intimation is given as to what weight they shall give to the circumstances of flight to avoid arrest or trial. An instruction which told the jury that they should take such fact into consideration, in connection with the other facts in evidence, was approved in State v. Griffin,
10. The twenty-seventh instruction is in these words : “ The court instructs the jury that in considering the testimony of accomplices against the defendant, you should consider and examine it with great caution and scrutiny, and the testimony of such witnesses should not be sufficient to warrant a conviction in a case of murder unless the same is corroborated by other witnesses, as to facts and circumstances tending to prove the defendant guilty, and especially corroborated by other witnesses as to the identity of the accused as the person against whom such accomplices have testified.” This instruction accords with what has been said by this court on the same subject. State v. Jones,
12. The defendant’s first refused instruction declares that his admissions “should be received by you with great caution, and are not of themselves sufficient to warrant you in convicting the defendant, unless corroborated by other facts, and circumstances in the case.” It is to be observed that the court gave an instruction to the effect, that the jury should weigh the evidence concerning the defendant’s conversations and declarations with caution, and take into consideration the liability of the witnesses to misunderstand the words used, and of misquoting defendant’s language. It is therefore the latter part only of this instruction that calls for consideration. It may be stated here that the instructions, as a whole, place the case before the jury on these theories. First, that defendant with his own hand shot Green ; second, that he was present aiding and abetting the other named persons in killing Green, and third, that he entered into a conspiracy with those persons to kill William Edens, and in the execution of the plot killed Green. The confessions are most important as they relate to the first theory, and,
Joseph Newton states that defendant told him, when they were coming from Arkansas to this state, that he got into a scuffle with Greene, that he held Green’s hand until the latter fired the shots out of his pistol, that he then “fixed” Greene, and that a woman tore his cap, and he would have; killed her if she had not pulled the pistol or gun to one side. Mrs. Greene testified that one of the men attempted to shoo1¿her, but she threw up the gun, that she pulled the mask partly off the face of this man, and that her husband was at the bed where she was, when he was shot.
There can be no question but Greene was shot and killed, and that, too, by some one in the commission of murder. In short the corpus delicti is proved beyond question by persons having no agency in the crime. Besides this, defendant’s confessions, it will be seen, are corroborated in their details by the evidence of Mrs. Greene. Under these circumstances was it incumbent xrpon the court to give the refused instructions %
This court has often approved and asserted the general doctrine that the naked confessions of the defendant will not justify or support a conviction; that the corpus delicti must be proved by evidence other than extra judicial confession. Robinson v. State, 12 Mo. 592 ; State v. Scott,
It is, of course, for the court in the first instance to say whether there is any evidence, aside from the confessions, tending to show that the crime was committed by some one, and for the jury to find the fact. There may be cases where it will be proper for the court to give special instructions upon this subject, though there is some evidence aliunde. • But where the corpus delicti is fully and completely established by evidence, outside of the confessions, it is not error to refuse to instruct,
We have not overlooked these matters in proof: namely, that the witness, Joseph Newton, is a brother of one of the parties indicted in this case; that he undertook to assist the officers in finding defendant, with the assurance that it would be of service to his brother, who was used as a witness by the state; that he had himself arrested to allay suspicion while in search of defendant; and that he induced defendant by professions of friendship to leave Arkansas and come to this state. The defendant was arrested on arrival. It is broadly stated in State v. Phelps,
13. Objection is also made to those remarks of the prosecuting attorney, made in his opening argument, “ as to what was going on in the house while he (defendant) stood on the doorstep, we are left to conjecture, so far as this defendant’s testimony is concerned. He does
We see no error in the record, and the judgment is, therefore, affirmed. Ray, J., absent. Sherwood, J., dissents as to what is ruled in respect of the defendant’s first refused instruction.
Dissenting Opinion
DISSENTING OPINION.
— I am called upon to say why I dissent from the conclusions reached in the foregoing opinion. These are my reasons:
In Robinson v. State, supra, one of the grounds of reversal was the refusal of the court to instruct, as asked 'by the defendant, that an extra-judicial confession was insufficient to convict unless corroborated. And it was upon this sole ground that, though such an instruction was proper, yet because it was not asked, that the failure of the court to give it was sustained in State v. Brooks, 92 Mo. 542. There is therefore no foundation for the assertion made in the majority opinion that “the prior cases in this court do not assert that such an instruction should be given in such cases.” So that it will readily be seen that if Robinson's case still stands for law, and if Brooks' case still stands for law the foregoing opinion is not law, neither indeed can be. In Brooks' case, the judgment was affirmed because of the failure to ask
In the majority opinion it is gravely asserted: “ But where the corpus delicti is fully and completely. established by the evidence, outside of the confessions, it is not error to refuse to instruct that it devolves upon the state to show, by extraneous evidence that the alleged crime had been, committed by some one.” The condemnation of the doctrine thus declared has been sufficiently shown by the cases cited ; but let us look at it apart from precedent and the same result is inevitable. The argument is that if the evidence is amply sufficient the propriety of refusing instructions based thereon thereby becomes immaterial. With equal propriety an appellate court might gravely say that because the evidence respecting, a homicide is confessedly sufficient to show circumstances of deliberation, premeditation and malice aforethought, that, therefore, an instruction ■defining those terms was unnecessary. In short, this court places itself on record as, in effect, declaring that if the evidence on a disputed fact is full and complete, strong and convincing, this does away with any necessity for an instruction based upon such fact. Accustomed as are the members of the legal profession of this state to surprises from this court in its enunciation of new rules and principles of criminal law, they will doubtless be startled by this, its latest utterance.
The case of State v. Lamb,
II. Again, the point insisted upon by the defendant was not that confessions obtained by artifice, cunning, falsehood and deception on the part of those obtaining them, would render such confessions inadmissible, as is assumed in the majority opinion ; but the point was made, and distinctly made, that the position of the witness Joseph Newton, who testified to the alleged confession, was tantamount to that of an accomplice to this extent at least, that a cautionary instruction should have been given respecting the weight to be attached to his testimony. This position of the defendant is abundantly sustained by authority as I will now proceed to show: Commonwealth v. Downing,
In Commonwealth v. Downing, supra, the witness, King, purchased intoxicating liquor sold contrary to law
In Anonymous, supra, where the witness was hired to watch and detect a wife suspected of adultery, it was held that this did not authorize the absolute rejection of such witness’ testimony, but the court declared that it ‘ ‘ ought to be received with great caution and scrupulously and minutely scrutinized.”
In Heldt v. State, supra, the court uses this pointed language: “A man who will deliberately ingratiate-himself into the confidence of another for the purpose oft betraying that confidence, and, while with words of friendship upon his lips, seeks by every means in his power to obtain an admission which can be tortured into a confession of guilt, which he may blazon to the world as a means to accomplish the downfall of one for whom he professed great friendship, cannot be possessed of a very high sense of honor or of moral obligation. Hence the law looks with suspicion on the testimony of such witnesses, and the jury should be specially instructed that, in weighing their testimony, greater care is to be exercised than in the case of witnesses wholly disinterested.”
Wharton, in his work on Criminal Evidence (9 Ed.) sec. 440, approves this doctrine.
III. Error was committed in permitting the prosecuting attorney in his opening argument, to comment upon the failure of the defendant to testify as to what his purposes were in going to the house of Edens. He had testified that he was there formo felonious purpose. It may be conceded that it was competent for the state to have interrogated him as to what his purposes were ;