People v. Creeks

THE COURT.

The defendant was convicted of the crime of murder in the first degree, for the killing of one James N. Cornell, and adjudged to suffer death. He appeals from the judgment and from an order denying his motion for a new trial.

The deceased was found dead on his own land, under circumstances showing that he had been shot from behind with a shot-gun, and that whatever valuables he had on his person had been taken by the murderer. The evidence relied upon to connect the defendant with the killing was wholly circumstantial.

There was evidence tending to explain away many of the circumstances, and to create a doubt of the guilt of the defendant, but there were circumstances tending strongly to show guilt, and it cannot be held that the evidence was insufficient to sustain the verdict. Most important'evidence, however, against the defendant was that relative to shoe-tracks leading to and from the place of the killing, which were apparently made by shoes similar to a pair found in defendant’s room. It was all-important for the prosecution to show, if it could, that defendant wore those particular shoes on the afternoon of the killing. There is no direct evidence in the record showing that he did so wear them, except that afforded by the prior statements of defendant’s mother that he did have on those shoes at the time he left her home, shortly before the killing. The mother was called as a witness by the prosecution, and having, in response to the questions of the district attorney, testified generally as to the movements of the defendant on the day of the homicide, said, “I could not tell you what shoes he had on when he went hunting. I cannot

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swear positively what shoes he had on.” In so testifying, she' apparently did not come np to the expectations of the district attorney, who, on redirect examination, asked her if she did not, at the preliminary examination, testify that he had those shoes on his feet when he left home that afternoon. Without objection, she answered that she did say so at that time, and also said, “but it was a mistake; for I didn’t notice them on-, his feet after dinner.” She was subsequently recalled by the-prosecution, and compelled over objection to testify that at. the coroner’s inquest she testified that he wore those shoes-during the whole of the day of the homicide. She was further asked if her memory was not much fresher on that point at that time than on the trial, and answered that it was, but that she was sick at the time. The prosecution was further allowed to show by another witness who was at the coroner’s: inquest that the shoes concerning which the mother then testified were the shoes which corresponded with the tracks near the place of the homicide.