*1 said, court From the trial what we have that follows contends appellant’s judgment should be It in that it failed to sustain affirmed. is so erred of ordered. ground motion for a new trial on
newly evidence. discovered ELLISON, LEEDY, J., J., P.
BROADDUS, Special Judge, concur. requirements granting “The stated, ground are thus
new trial on this
90 S.W. [459] [State v. Speritus] loe. cit. Mo. [24] loc. Speritus cit. upon the defendant
case: ‘It devolved First, the evidence first came
show: trial; second, knowledge since the
to his owing not to want of due dili that it was Missouri, Respondent, sooner; third, STATE of gence that it did not come prob that it was so material that it would v. produce new ably a different result CLARK, Appellant. T. Arthur fourth, granted; trial were that it was not No. 44308. cumulative; fifth, object merely that the merely impeach testimony was Supreme Court of Missouri. witness; sixth, or credit of a character Division 2.No. of the witness himself should affidavit 14, 1955. March produced, or its absence accounted for.’ Smith, Mo.Sup., See also State v. 247 S.W. Rehearing Motion for or to Transfer to 154; Hewitt, Mo.Sup., v. State 259 S.W. April 11, en Banc Court Denied 1955. 773; Jones, Mo.Sup., 137; Stroud, State 240 S.W. Brotherton, Mo.Sup.,
2d 111.” State v. 712,1. c. evidence first newly evidence discovered
contends undershirt. which was an state’s exhibit for a new in his motion states was not examined for
trial that this exhibit than blood and semen.
anything other wiped prosecutrix it showed that
contends this article and it showed that
her face on make-up” thoroughly
“pancake visible. make-up eye, being visible to there
This
fore, evidently knew about it when was offered evidence.
this exhibit ap are at a loss to understand
We newly
pellant’s contention of discovered evi to witness Dr. Cora in reference Au.
dence
Appellant cross-examined witness. If witness, surprised by this
he we find were testifying. Moreover, objection
no to her point in find this
we do not mo assignment for new trial. This is not
tion us.
before *2 Blunlc, Forsyth, Rogers A. H. Rogers, & Gainesville, Rogers, Clyde Rogers,
G. W.
Lincoln, Lincoln, Haseltine,
&
Forehand
Lincoln,
Springer, Harold T.
Horace S.
Haseltine,
appellant.
Springfield, for
Dalton, Atty. Gen.,
M.
W. Don
John
Gen.,
Kennedy,
Atty.
respondent.
Asst.
BOHLING, Commissioner.
appeals
judgment
Arthur T.
from a
Clark
imprisonment
imposing a
of life
sentence
degree
the first
murder of
W.
Charles
mistrial,
trial
in a
Cobb. The first
resulted
becoming
The
juror
sick.
second trial
sentence, but
life
the cause
resulted
remanded,
panel In the meantime truck. Wal- and Mrs. room Mr. had moved ato January, In and wife dis- Forsyth. Clarence hotel at Zugg’s ter killing cussed at their home of Cobb May- room for Carl’s sought to use Freda, presence daughter of their Zugg would transaction. Mrs. Clark Wood, Clarence (then 68). about Wood this, use the them to permit but allowed and Freda killing testified the was referred parties lobby. The assembled hotel as “getting job “doing away done” or brought afternoon. Clarence lobby in the During him.” this time who *4 Rogers, General Eric Wolf and trips wife made Ruby to Cobb home and lobby. Forsyth, in to attending court trips Cobb made to the Clark home. May. brought Mr. his wife and, calling Rogers examined the deed after Clarence Wood testified that $2,000 against to deed of trust attention a “ought stated Charlie Cobb to be tooken land, subject the deed thereto. made with a club and knocked in the head and May thereupon executed and M. B. John bluff”; Ruby throwed over the that Cobb conveying warranty deed a acknowledged ought get to leave “or her husband shut of paid the Clarence Clark. the land to Orma way”; him some and that “he’d give $25 by money given him Orma. notary from scalp for the of a Cobb.” Wood told paid attorney Rogers. pellant give away him buzzards would got sight. before he out On another delivery the deed execution occasion his wife daughter proceedings to declare was followed were the stove when Wood around walked years age, in- May, about 75 who was up letter, and Orma handed him a which wife, competent. Appellant, his Clar- Ruby be said to from Cobb. Wood Cobb’s home several went to ence Wood you testified the letter stated: “‘If don’t understanding apparently had an times and get job days, that done three I’ll do it competent trans- May was to that with Cobb myself,’ and he milked at the barn [Cobb] Appellant took wife and act business. o’clock, and, between 4 and 5 give a I’d Cobb, Bill Freda, and Mrs. Mr. daughter, ” mortgage on two Appel- cows for $600.’ Forsyth for Wood to Cobb and Clarence lant said “that the barn would be a good on December May sanity hearing it At that time place get to done.” Wood’s rep- appointed to Gideon was R. 1950. J. n understanding that neither incompetent. Appellant alleged resent the anything nor he would have to do with it. him the Cobbs that informed wife and his he have nothing told them would to Wood competent. Charlie testify May was would it; pay that not do with would $600 May was like a child and that testified Cobb lawyer. Appellant said “he’d do it him- business. Mr. competent to transact not one’d know nothin’ about it.” self and no incompetent. Appellant adjudged May was plans killing discussed for Cobb in- Other up to Mr. Gideon after came wife and his air into his pumping veins and them the cluded informed Cobbs hearing and he understand, Bill) City job. had not from Kansas do the having Charlie a man (we Appellant an- they had stated. testified as David, Ruby year Cobb’s old Vernon “Well, they sure didn’t.” Freda swered: brother, after lived with Cobbs sometime while her mother that testified Clark December, days A few before the restroom, her. mother Ruby were Cobb Ruby him a had take note an pretty dirty for homicide Ruby was Charlie told Clark, envelope when testify against telling them taken to Orma unsealed them,' anybody testify not let else see and that her him it. did him there to repeated the statement later in the read Orma Clark read it and said not mother died, job done’”; will May, Ruby has “‘the Ruby who since tell did truck. John “ ” what residence after ‘will know I mean.’ return to the Clark that on Febru- men- Clark also testified were Freda communications written Other confined ary 20, her mother was testified she by Wood. Freda Clark tioned measles; that Cobb her bed with the from a note to her mother read morning grass her seed in the mother and she sowed her stating give would wet”; although “plenty that she did produce the it was she could not best cows if two or excited that job being was not recall his nervous days after “the money within three appellant said morning; that wife done.” a rainy good that “it and it’d be bachelor, Merideth, a At the time Orville done, job would be that tracks raped Ruby charged having Cobb. covered”; appellant put pair a blue him appellant asked Wood testified that overalls, torn, striped which were from get a letter a Merideth addressed to jacket pair over his other clothes and a store, saying the Merideth he would leave boots; mismated rubber he told wit- it at the barn and that would throw ness, was, he boys the little asked where blame on Orville Merideth. basement; to tell them he was in house, thought, he left the she between days One after be- evening work few *5 2:30, and went and across the road the fore the met homicide Orma Clark Wood general May direction the farm. She of him at the road and to that wanted “do appellant next saw around 5 5:30 return- or her, no; job.” why she He told and asked direction; ing from the that when he same that,” him “to do some wanted crime like got job came in “he said he’d done and and: “She she afraid of her said was hus- O.K.,” everything was and he was that appellant band.” She also said “would do Appellant going to burn the job boots. went go him, no; if with I’d him. I told off, her, bedroom, into middle took his boots I told no.” wearing pair shoes, came out of home a was Clarence Wood testified he went to the Creek, a few minutes and left for Cedar Monday morning Clark home before the give saying going “he was himself there to homicide and Ruby Orma Clark told him an alibi.” had Cobb been there that morning and done, up. wanted get job hurry to that to David other wit- Vernon corroborated Forsyth He left for after soon lunch. Ruby making and nesses on Clarks Cobb trips Ruby back and forth. Fie testified Friday Clarence Wood testified that going get were rid told him the Clarks to after the homicide he went to He tried to have her not of Charlie Cobb. appellant home and passed told that he had it, She him do to a told she divorce. cows; a truck hauling the appel- Cobb that doing what she was and he would be knew said, yes; appellant lant that him showed told; sorry lay he would it on if Or- piece paper a of on which was “a kind of afraid. ville Merideth. He was Witness map” of surroundings the barn and and with was sick in bed the measles “ that said: ‘There’s where the Ruby Cobb was killed. Cobb went to Cedar man went that did the murder and went groceries. morning that some Creek ” away,’ indicating a man out of Kansas stopped him She told she had and talked to City job, did and also said the cows the Clarks. Charlie Cobb worked out doors would paid be sold and the man off. day. He during the came in and sat down front with about room 3:30 and Freda Clark corroborated witness Wood’s p.4 to about m. he went out milk. After testimony about conversations in which left, Ruby looking he commenced out wife, participated his and Wood toward the She walked the window barn. in her presence, including discussions her wrung hands. Witness floor asked: doing different away methods of Cobb, $600, “If he was cornin’ back.” answered: best Cobbs, two cows of the ” “ ‘No, p. ain’t Wood he cornin’ back.’ About not wanting anything m. have to do with larger boys the two barn. Ruby sent stopped. Appellant back minutes came “and said their dad back They came “sure asked Albert twice Cobb was dead.” enough dead” and was informed Cobb walk could that one There eating Dewey been beaten to death. good day) from aon 31 minutes (taking seeing Appellant breakfast. insisted on keep out of May farm appellant’s to refused, Dewey Dewey, who and wanted through woods. Lonnie by going sight go into another room. asked was a His mother in 1951. Davis was Dewey enough” if Cobb was “sure dead appellant. He saw cousin his again told he was. said Ed daily. lived south of He almost very wife was sick with the measles north of grandfather, lived Persinger, his slept he had all he had the night; that hollow, miles from Snap Creek ½ 2½ it; radio on low and had heard little 11 m. a. left home about He his home. that like it he was not told he did not night grandfather’s on the stay it, gone about and wanted to who had know he thought took to the scene and was there the follow- who Snap arrive at. Creek. minutes to about ing morning. They had known creek and around at the playing He started nervous,” years. Appellant was “awful played hour or more. He an thought he “trembling” and “runnin’ tears were down yards or 300 up the creek 200 go had to face,” loud,” and he “hollered out awful creek he he crossed the After cross. “spoke was a out loud Charlie Cobb blister on his heel. take care of a stopped to his”; good guessed friend of he he had passed through a man doing While no business down there and' had better not yards going in him about 50 from woods go down Neither had ever seen there. *6 May In his best barn. the direction of pellant condition in that before. appellant. man was
judgment the Witness hurry no and he did not know 'been in had Hunt, Taney county,, G. sheriff of L. man, he saw the but it was time the exact investigated homicide, going to the grandparents His had in the afternoon. Many persons scene times. had several meal when he arrived. their noon he been there and could find no worthwhile weapon tracks. The murder was never- operated Lyman one of two Cardwell testified, facts, among He located. other February Creek. On stores at Cedar times, appellant’s a he was at number that appellant 12:30 saw about 12 or he death; trip after Cobb’s that on first 5:15 appellant’s working. home About at appellant good stated that Cobb he were and passed store, to the p. m. went friends; that he who knew did but had minutes, for a few and then store other he, proof; appellant, that had an no alibi again, passed going home. day, that and that for Orville Merideth did light him and had on a white waved at or night Ruby Cobb on the of the homicide Soon thereafter'he was told colored shirt. person only witness informed she dead, Charlie” was and he arrived “Uncle anything thought would do like that to place in 10 He Cobb or minutes. at the Charlie was Orville Merideth. On body. The Cobb’s blood for some examined ap- fourth or fifth after the homicide warm, body fresh, from was distance pellant photostat gave witness a of a letter oozing still was from the and blood wounds. Ruby Cobb sent the letter and said to his mail; opened it, it, that he home was read Albert Collins’ the first house house to May Shortly p. Springfield, pho- to east of the farm. after m. took it had a and then 20, 1951, Ruby made, back, up brought on Cobb drove the letter sealed tostat Collins, Dewey Wood, deputy informed and mailed it to Carl and the letter to son, photostat Albert’s her it was addressed. The and husband had sheriff whom n persons pages handwriting killed. He notified seven and several consists of been It, January briefly, was went to the He dated scene. his is father, Ruby deeply in testified that that morning the next the effect love to Wood was pellant passed, west, (Carl addressee over driving and in a with the few August 29, 1953) conspiracy asked kill deceased he died on 70 when ground there was help Witness insufficient evidence that him kill her husband. never ever conspiracy he entered into a that stated cross-examination on any with them or letter 'be- them to kill deceased. to Carl Wood about the talked investigation he found out in his cause Ruby states in his brief that impossible Wood to have Carl it was Cobb, Clark, Orma Carl Wood and Clar- killed Cobb. “plotted ence Wood this murder and con- spired place the blame on defendant.” in the hand writing Another The evidence established that Cobb Cobb, in evidence offered participated and Orma Clark in the con- to the It was addressed to Orma Clark. spiracy. evidence, believed, The State’s “do that before that if Orma would effect also established participated Fri. you befóre get I night Wed. will $550 in discussions of different kill- methods of can night. You CBW [Clarence Wood] ing deceased, planning the method in which help you.” occurred, plans the homicide their others, execution for casting of the State the blame on behalf Other sought It, among other establish an alibi him- set forth. need not be Usually self. a conspiracy is things, witnesses established tended corroborate Wood, Da- Clark, circumstantial Vernon evidence. Here we have Freda Clarence direct evidence of participation Lonnie Davis. vid and conspiracy. sufficiently This distin- testimony, briefly, Appellant’s guishes the instant case from State v. did not at commit he was home Buckley, 74, 76, 274 S.W. years old the time offense. by appellant, stressed and cases like State detail, into he going involved. Without Loeb, Mo., 190 S.W. broad at- and statements the occurrences denied standing statements therein overruled Clar- him witnesses by State’s tributed to Stogsdill, did not Clark. He ence Wood Freda 22, 28. making “that this would recall the statement *7 The commission the of of offense done,” job but good get the be a marks conspiracy the ten end of there had reference to the statement he he made for, conspiracy may the but in the continue they steel windows so cutting down some design furtherance of the common var schoolhouse, for and on the in the would fit purposes ious after the crime. One of he cut the afternoon of purposes conspiracy of the instant acetylene torch cutting with an windows exposure avoiding and the placing of 4 basement his house until about of others, particularly blame on Meri Orville and on his p. fixing After a wheel tire m. Ruby deth. Cobb’s statement to the sher truck, he went into house for a short iff night on the of homicide that she gro- then Cedar Creek time and suspected Orville Merideth was admissible 5 home soon after returned ceries. Strait, Mo., in evidence. State v. 279 S.W. appel- testimony p. on behalf of m. Other 109, Hill, 895, [13]; 114 352 State v. Mo. particu- alibi, tended to lant establish 712, 716, quoting 179 S.W.2d State Pries v. store, presence the Cedar larly his at Creek meyer, 335, 425, 327 Mo. S.W.2d 37 A 427. impeach Clarence Freda Clark and and to short time thereafter told said by statements them. Wood on made sheriff that Merideth Orville did it. appellant’s conten- connection with In submis- that the State failed make a There was sufficient tion evidence to case, dispose points we of his that er- finding a submission and sible warrant that de pursuant in conspiracy committed in admission evi- ceased was killed to a ror was by party of statements made Cobb and that was a dence thereto. Clark, Mo., presence 813, Clark out of of State v. 259 S.W.2d and Orma Richetti, 1015, instructing in 342 pellant [3]; and on the existence 816 State v. Mo. 600 believed, evidence, if Man so find. The State’s 342; 330, 1038, S.W.2d 119 motive, or will 666, conspiracy, ill 670. established 913, S.W.2d
sker, 98 339 Mo. malice, deliberation, prep- premeditation, by vicinity oppor- pointed aration, out True, presence as but trial murder, appellant’s second statement tunity at the for the testified Cobb The trial. everything instant testify job been done and that the not had did her testi O.K., attempts with an alibi stronger case to establish made State in his Appellant suspicion A to divert toward others. mony without than credibility Clar made. attacks the submissible case was argument attorneys State’s claiming the ence Wood— argument filed are their Motions new trial this witness for repudiated he ad saying days ten the return “within after jury, Vernon to the David — * * * may dif information the court verdicts Provided given had mitted he for truthfulness motion questions filing the time for such ways, and extend ferent thirty days: have testimony. period (30) We an additional Freda Clark’s further, We do no- provided record. shall have the court painstakingly studied argu The exten appellant argues. power or further to make another it as not read attorneys regard filing with said motion.”' sion of the time for ments of State’s 27.20; Supreme the effect 42 Rule were to Court §i Wood V.A.M.S. to witness V.A.M..S.; 547.030, 1949, that his but State approving his actions RSMo were not 46, Graves, in the- weigh jury to testimony for the estab on jury verdict [4, circumstances The returned the facts and its light of 5]. does a mo December filed other evidence. lished 5, 1954, ap in what circum March his brief tion for new trial. On point out ap verdict, proximately days state after the gave different stances Vernon David testimony pellant supplemental of rec filed a motion new His the facts. ments of appears newly upon to be discovered' alleged issues trial based the material ord on like effect that of the trial reach a conclusion evidence to the one We consistent. testimony jurors prejudged of witnesses the case. On March respect court, hearing Freda What the trial after evi Clark. Clarence Wood credibility pro dence con said motion of March would affect appellant urges Appel Stogsdill, 5th, motions. witnesses. State v. overruled each of said of the supplemental Their motion for new trial' 10S, [8, lant’s 9]. nullity, having their testimo was a been filed after the credibility weight expiration off the facts. of the time allowed law ny the triers were for given filing, the trial court was without testimony is corroborated in its of each jurisdiction other to entertain said motion. State particulars by the of the *8 Brown, 1014, 777, 98 re by and circumstances v. 339 Mo. S.W.2d other facts two and Mo.,. authorities; Loyd, viewing case is like State v. in evidence. The not adduced 658, [2-4]; La. King, Mo. 233 659 State appellant’s case of State v. 174 S.W.2d v. 1205, 117, 660, 627, Breyere, 64 647, 333 Mo. S.W.2d 74 S.W. 631. Mosley, Mo., [2-5]; 118 State v. 119 S.W. Mo., [1]; Hyatt, 297 71 2d State v. S.W.2d appellant’s guilt is The evidence of 711, [1, 2], prejudicial It follows that 712 in State stronger than the evidence v. was overruling not committed in the error was 147, 346, 243 Mo. Singleton, 294 S.W. quali questioning trial the motion new ap by the other case stressed 152(a) (b), jurors. of one of the fications Appellant’s testimony was that he pellant. he went to the home all until was Hendrix, sheriff Glenn of Greene of The statements at Cedar Creek. store county, Cobb was in Davis testified Freda and Lonnie Clark witnesses county jail year involved, the Greene about a when the time regard to with ' 24, following 1951. Clarence respective is read as their p.art also' confined of that there whole, jury and the could Wood were estimates
601
effect, briefly
jail
stated,
between court
to the
visited
time. Carl Wood
1951,
17,
by
against
in-
nine statements
an accused
February 24 and October
opinion
presumed
what
times,
of
terest are
to be true while
and sheriff Hendrix
he said for himself are
as
Appellant claims
treated
he visited
Cobb.
according
true or false
the other facts
excluding the offered
erred in
court
requested and
in evidence. See State
once
circumstances
testimony that Carl Wood
Dollarhide,
1087,
v.
marry
S.W.2d
permission
Ruby Cobb
333 Mo.
63
of witness to
998,
Johnson,
1000.
In State v.
Mo.
stay
jail.
at the
No
333
near the end of her
1008,
1000, 1005,
proof
63 S.W.2d
we said of a
authority
There is no
of
is cited.
principal
instruction,
perpe-
any
worded
thereto-
overt act
Carl Wood
form,
approved
fore
that:
“We think it
The court ruled
tration of the homicide.
66,
province
jury
also invades the
as
correctly.
Taylor,
of the
State v.
136 Mo.
V.A.M.S.;
The record shows that
requested
The record controls and
record
commission
73,
212
779
354
Brown,
appears to be a defendant’s instruction.
says
issue
(1);
complain. Supreme
37 S.W.
S.W.
[5,
court
of
§
6];
imports
Instruction No.
53,
339 Mo.
545.030,
appellant aiding
339,
State
State v.
not
907,
188
of
344
give
instruction,
supported
absolute
S.W.2d
the homicide.
909.
v.
[14]
subd.
said
1014,
Ferguson,
Dimmick,
;
State
instruction,
1(16),
56,
Court
4 submitted the
verity.
appellant, having
58
in no
v.
the evidence.
278 Mo.
abetting
[3-6],
RSMo1949,
Nenninger,
Rule 26.06
requested
State v.
position
and it
119,
v.
92 S.W.2d
tions similar to
struction have been held not to constitute
instruction on the
mony,
v.
their
600,
what
nesses
2d
among
In the
error. State v.
State v.
son,
Talbert,
42,
Henderson,
80 S.W.2d
351
weight
testimony.
45
instant
and should not be
others,
Williamson,
Mo.
85 S.W.
[7];
351
904, 911
159,
case the court
weight
Mo.
State v.
State v.
186 Mo.
147,
Clump, 16
appellant’s requested
loc.cit
The refusal
should
791,
171 S.W.2d
credibility
343 Mo.
154;
[19].
and value to be
jury weigh the as to it should judgment is affirmed. The made an accused verbal statements requested great The in- “with caution.” STOCKARD, CC., appears adjunct BARRETT an to in- struction approved by time structions one concur. PER CURIAM. CUNNINGHAM, Homer William BOHLING, opinion foregoing The Plaintiff-Respondent, court. opinion of the
C., the adopted as is v. Guy THOMPSON, Trustee, Missouri Pa- LEEDY, J., and ELLISON, A. J., P. Company, corporation, cific a Railroad BROADDUS, Special Judge, concur. Defendant-Appellant. Rehearing for On Motion No. 44276. or to Transfer Supreme Court of Missouri.
PER CURIAM. Division No. 1. appel 1955. only presented in March point
The transfer rehearing or to motion for lant’s Rehearing Motion or to Transfer to over point brief was in his that the fifth April 11, Court en Banc Denied erred court point “The The reads: looked. objec 2 over giving instruction No. defendant, evidence being no there tion of in entered defendant the record any conspiracy design common to a or deceased and is life of take the
one else to with the irreconcilable with and
inconsistent theory Instruction No. case.”
State’s persons are that all the effect was to a com together with
equally guilty who act crime of a purpose the commission mon them, proceeding ac the act of one of act plan, is the cording to the common Buckley, In each. State authority ap only cited S.W. point, evidence brief to the
pellant’s connect the insufficient to considered person com of the acts defendants in the in As stated
mitting homicide. opinion direct evidence of there was
stant in the instant con participation Buckley case es
spiracy does instruction The error. State’s main
tablish theory upon the that deceased proceeded conspiracy; killed as result therein, participant was a conspirator who ac jury was not
tually killed deceased. unless convict
authorized to No. 2 did not direct Instruction so found. regarding the law It stated verdict. offense and under
conspiracy to commit an giving of instruction evidence Law, C.J.S., proper. Criminal § page Conspiracy, 8i61. *10 or,
Appellant’s rehearing motion for alternative, to transfer to Court en Banc overruled.