State v. ConwayState v. Conway
- Reporters:
- , ,
- Before:
- Barrett, Ellison, Tipton, Leedy (per curiam)
BARRETT, C.—Kenneth David Conway was convicted of murder in the first degree and sentenced to suffer the penalty of death.
By an irrefragable set of circumstances the state’s evidence shows that Conway, an habitual criminal, shot and killed Cecil Curd, a filling station attendant, and the question presented by this appeal is whether the proof shows the killing to have been “deliberate and premeditated” compelling a verdict of murder in the first degree.
The state contends that the defendant’s motion for a new trial is too general to save the point for review by this court. But paragraph eight of the motion asks for a new trial “because there was no evidence of premeditation or deliberation on the part of the defendant” and we do not see that more could be said to call the
The state’s theory is that the evidence shows a homicide “committed in the perpetration or attempt to perpetrate . . . robbery” and, therefore, the killing is “deemed murder in the first degree,” dispensing with proof of deliberation and premeditation in their usually accepted sense.
The approved practice is to indict or inform against a defendant, as was done here, charging murder in the first degree in the usual language that he “did then and there with specific criminal intent wilfully, unlawfully, deliberately, premeditatedly, feloniously, on purpose, and of his malice aforethought” assault with a deadly weapon and kill Cecil Curd and then prove that the homicide occurred during a robbery, even though that fact is not charged in the indictment or information, and even though there is no other evidence from which the jury could infer the essential and distinguishing elements of deliberation and premeditation. State v. Nasello, 325 Mo. 442, 30 S. W. (2d) 132; State v. Messino, 325 Mo. 743, 30 S. W. (2d) 750. The “deliberation and premeditation” formula, on the one hand, and the statutory named felony-murder rule, on the other hand, perform the function of determining what homicides may be capitally punished. 37 Col. L. R. 701, 706. “No new offenses are created by statutes with relation to murder in the perpetration of,
But even so the fact remains that if the state’s theory is that Conway killed Cecil Curd in the perpetration of a robbery it was incumbent upon the state to show by direct or circumstantial evidence that a robbery was perpetrated or attempted. “On a trial for homicide committed during the perpetration of, or attempt to perpetrate, another felony, the fact that defendant was engaged in the commission of a felony at the time of the killing must be established beyond a reasonable doubt, and every element of the offense must be so established, but need not be demonstrated to an absolute certainty, and may be shown by circumstantial evidence, or by thе statement of defendant.” 30 C. J., Sec. 549, p. 303; State v. Wright, 337 Mo. 441, 85 S. W. (2d) 7; Wharton, Homicide, Sec. 614, p. 952; the annotation in 63 L. R. A., 353, 397 398-399; State v. Donnelly, 130 Mo. 642, 32 S. W. 1124; State v. Greenleaf, 71 N. H. 606, 54 Atl. 38; Pliemling v. State, 46 Wis. 516, 1 N. W. 278. And, therefore, the question for our determination is whether there was any evidence that Conway was a party to an attempted or accomplished robbery during the course of which he shot and killed Cecil Curd.
Several people identified Conway and his accomplice, Don Stephens, as the strangers seen in Gower during the late afternoon and early evening of October 25, 1939. Some noticed that they were driving a black Ford automobile with an Oklahoma license plate on it. They were not seen in the D-X filling station about two and one-half miles from Gower on Highway 169 where Cecil Curd was killed, but Stephens was shown to have been there because his fingerprints were found on a coffee cup and Conway admitted that they were there. Mr. Dalrymple owned the station and lived upstairs. Between eleven and twelve o’clock he went upstairs to bed leaving Cecil alone and in charge. Some time later he was conscious of the fact that there was someone in the station asking for coffee. He went to sleep and was awakened by the sound of someone running across the floor and a car starting and driving away. When he got
During that night William Strange, a school teacher, was acting as night watch for his father in the town of Smithville and while he was in a garage about 3:15 a car drove in through the driveway of the garage and uр the street for some distance and turned around. They stopped and appeared to be tampering with a parked car and by the time the car came back Strange was standing at the corner of the bank [680] building and was able to write the license number of the car on the side of the building as it passed. The license plate was Oklahoma 39AE037. Though Strange did not personally observe it he knew that the occupants of the Oklahoma car had stolen a doctor’s automobile which was later abandonеd on the highway. Strange called the Kansas City Police Department and notified them that a Ford with an Oklahoma license tag was headed in that direction and that one of the two men in it had stolen a car in Smithville. At that time he did not know of the homicide near Gower.
Two police officers saw the described automobile entering Kansas City at a speed of about sixty miles an hour and chased it through the streets of Kansas City for about twenty blocks. On Fifteenth Street the occupants jumped out of the car and it crashеd into a parked cab. The driver of the car ran north and the other person ran south. Officer Johnson went after the man who ran south but was unable to catch him. Officer Hiles followed the man who ran north and found him lying down on a concrete walk back of an apartment house at Fifteenth and Central Streets. This man was Conway and just a few feet away was a .380 automatic pistol under some leaves. (Later a ballistics expert identified the pistol as being the same one that fired the shell from an empty cartridge сase found in Dalrymple’s filling station. Conway had stolen the pistol in Oklahoma City.) Conway was then taken to police headquarters where he was questioned by Mr. Reed of the police force, Highway Patrolman Baxter and F. B. I. agent Farland. During the progress of that examination Conway revealed Stephens’ hiding place and he and a girl were arrested there about 3:45 o’clock in the morning.
Officers Hiles and Johnson, the policemen who chased and caught Conway, found a cap, two flashlights and a sack in the autоmobile Conway had been driving. But they said they found nothing in his possession except his clothes and the pistol under the leaves, although they looked. Only one of the officers arresting Stephens and the girl testified and he was not asked and did not say what, if anything, was found in their possession or in the apartment they occupied.
Mr. Dalrymple testified that when he went upstairs to bed he forgot and left his billfold containing ninety-five to one hundred dollars in bills on a shelf back of the stairway and that the next morning it was gone. He also said he left eight or ten dollars for
Mr. Farland, the F. B. I. agent, conducted the examinatiоn of Conway at police headquarters. He first talked to him an “hour or two” and later attempted several shorter conversations. He intended to take a written statement but after two or three paragraphs had been written Conway refused to continue with the statement. As a result Farland and others who were present during parts of the examination were only able to testify to such oral admissions as Conway made. Farland was chiefly concerned with the Ford automobile Conway was driving, which had been stolen in Bеaumont, Texas. He was also interested in a Buick automobile Stephens and Conway had stolen in another state. When the examination first began it would seem that Farland did not know of the homicide near Gower but learned of it after he had started his examination. It was when he accused Conway of the murder that he refused to continue the written statement.
Farland said he questioned Conway with reference to the murder of this man and he denied it and denied that he had a gun. Later Conway said: “The man was still living when he left.” Shortly afterwards he said: “They fired one shot.” After Farland told Conway that they knew who had done the shooting from fingerprints on the cups he said: “I suppose this means the electric chair for me.”
With reference to whether Conway and Stephens had robbed Curd he was asked this question: “Did he at any time make any statements in regard to robbery in the station“? Farland’s answer was: “I don’t believe he did.”
On cross-examination he was asked if he did not find that Conway was without [681] means and answered: “To the contrary he said he had something like, something over elevеn hundred dollars put away for a defense.” Later he said: “The information was obtained that he told Graf (a lawyer) that he had thirteen hundred dollars for his defense.” (Here it should be interpolated that the trial court appointed the three lawyers who represent the defendant, and that they performed their duties in a commendable manner, against great odds, and without compensation.) In response to the question of whether he hadn’t found Conway to be without means Farland answered: “They got a few dollars on them when they were brought in. However, when searched Stephens had no additional money, nor did the woman. . . . Q. Now he had no money with him,
It is our opinion that this evidence does not show “beyond a reasonable doubt” that Conway and Stephens shot and killed Cecil Curd while perpetrating or attempting to perpetrate robbery. “Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; or who shall be convicted of feloniously taking the property of anоther from the person of his wife, servant, clerk or agent, . . . by violence to the person . . . shall be adjudged guilty of robbery in the first degree.”
Assuming that the jury should have been permitted to find the presence of all the other elements of robbery from the circumstances detailed, yet there was no evidence from which they could infer or find that Conway or his accomplice were guilty of “taking the property of another,” which is an essential element of the crime.
Mr. Baxter of the highway patrol and Mr. Reed of the Kansas City Police Department were present part of thе time Farland was questioning Conway but neither of them was asked or testified to any admissions concerning robbery and Farland specifically stated that Conway did not make any admissions of robbery. We have underscored that part of Farland’s evidence dealing with the money found on either Conway, Stephens or the girl and it is [682] obvious, in the first place, that what he had to say on the subject was hearsay. In the second place, it is doubtful that such evidence as he gave on the subject tended justly to show Conway guilty of robbery or that the money found on either of them came from the alleged crime. Compare: Annotation 3 A. L. R. 1213 and State v. Williams (Mo.), 183 S. W. 308. None of the officers who arrested and searched any of the parties testified to finding any sum of money on or near any of them. And they were the people who possessed the best and only information on the subject. Construing all the evidence liberally there is nothing in it to show that Conway or his accomplice admitted a robbery or an attempt to rob, nor is there any evidence to show that either of them had any money or property which could have or did come from the D-X filling station near Gower.
Of course, that is not conclusive if there is any other evidence from which it could be found that the defendant or his accomplice took money or other valuables from the filling station, but we are unable from this record to find it. Mr. Dalrymple said he forgot and left some money in his billfold, on a shelf, back of the stairway when he went to bed at eleven and that next morning it was gone. It is not clear whether both the billfold and the money were gone or only the money. Nor is the time next morning fixed as to when it was discovered the money was missing and between the time it was left and missed and after Cecil’s having been murdered there were a great many people in and out of the station.
The most that could reasonably be found from Mr. Dalrymple’s evidence is that he had lost his property through a larceny.
Several people, including Mr. Dalrymple, saw Cecil lying on the floor behind the counter and Dr. Starks, Allen Hawkins, a neighbor boy, two highway patrolmen and the coroner examined him closely and fully and yet no one testified as to what, if anything, was missing or found on his person by way of money or valuables. Neither was there any evidence as to the condition of his clothes, such as his pockets being turned out or an indication that his clothes had been rifled. (State v. McNeal (Mo.), 237 S. W. 738; State v. White, 330 Mo. 737, 51 S. W. (2d) 109; State v. Page (Mo.), 130 S. W. (2d) 520.) Though it was said that he had money of his own and Mr. Dalrymple’s as well, it was not shown that it was missing and certainly such evidence was available.
As we have pointed out, the purpose of the statute making a homicide in the commission of a robbery, or other named felony, murder in the first degree is to fix absolutely the degree of the offense and thereby permit the assessment of the death penalty. The facts in the instant case do not show a homicide in the commission of a robbery and are not such that the jury should be permitted to draw the inference from them that there was. In all the previous cases the evidence has shown beyond a reasonable doubt that the homicide was committed in the perpetration of a robbery or other statutory named fеlony. In every one of the cases there was either an admission (such as a confession or a statement) of the felony by the accused or a witness who could and did positively testify that a robbery preceded the homicide and the defendant has usually been identified as a participant in the robbery and murder, or the evidence conclusively showed the robbery to have been committed. See and compare: State v. Wilson, 172 Mo. 420, 72 S. W. 696; State v. Brooks, 220 Mo. 74, 119 S. W. 353; State v. Mabry, 324 Mo. 239, 22 S. W. (2d) 639; State v. Messino, supra; State v. Nasello, supra; State v. Aguelera, 326 Mo. 1205, 33 S. W. (2d) 901; State v. Glover, 330 Mo. 709, 50 S. W. (2d) 1049; State v. White, supra; State v. Jefferson, 334 Mo. 57, 64 S. W. (2d) 929; State v. Powell, 339 Mo. 80, 95 S. W. (2d) 1186; State v. Jackson, 340 Mo. 748, 102 S. W. (2d) 612; State v. Richardson, 340 Mo. 680, 102 S. W. (2d) 653; State v. Barr, supra; State v. Schnelt, supra; State v. Kennedy (Mo.), 108 S. W. (2d) 384; State v. Morefield, 342 Mo. 1059, 119 S. W. (2d) 315; State v. King, 342 Mo. 1067, 119 S. W. (2d) 322. There is no such showing in the instant case and since it was and is the state’s theory that the рroof was of a homicide in the commission of a robbery, thereby dispensing with evidence of premeditation or deliberation, the defendant is entitled to a new trial. Our suspicion that the defendant was engaged in the perpetration of a robbery at the time, regardless of how strong the feeling may be, cannot supply or take the place of evidence establishing the necessary elements of the crime. State [683] v. Pippin, 327 Mo. 299, 36 S. W. (2d) 914; State v. Davis, 337 Mo. 404, 84 S. W. (2d) 633.
Before Conway was tried for murder he was confined in the United States Penitentiary at Leavenwоrth, Kansas, and was returned to Clinton County on writs of habeas corpus ad prosequendum directed to the United States Marshal for the Western District of Missouri and the Warden of the penitentiary at Leavenworth by the Circuit Court of Clinton County for arraignment, appointment of
The judgment is reversed and remanded. Westhues and Bohling, CC., concur.
PER CURIAM:—The foregoing opinion by Barrett, C., is adopted as the opinion of the court. All the judges concur.
ON MOTION FOR REHEARING.
PER CURIAM:—In its motion for a rehearing the state does not object to the principles applied but contends that we have overlooked the effect and purport of certain evidence; evidence from which the jury did and should be permitted to find that Conway was engaged in the perpetration of or attempt to perpetrate a robbery when he shot and killed Cecil Curd. The state’s рosition is that by circumstantial evidence it discharged its obligation of proving beyond a reasonable doubt that Conway and his accomplice were engaged in the commission of or attempt to commit a robbery.
The state again points to Mr. Dalrymple’s evidence, especially his testimony that before he went upstairs to bed he forgot and left $95.00 to $100.00 in his billfold “on the shelf behind the stairway” and the next morning it was gone. He also testified that he left eight or ten dollars with Cecil for the purpose of making change and that Cecil had some money of his own. He said Cecil kept the station money in his overall pocket and his own money “in a billfold up here in his overcoat.” In our principal opinion we pointed out the objections to and the weaknesses of all this evidence and indicated why we thought it insufficient to sustain the state’s theory of its case. A re-examination of the record has not changed our views but there is one further circumstance strongly corroborative of what we have already said.
The appellant’s twenty-fourth assignment in his motion for a new trial is as follows: “Because the state offered testimony to the effect
The attached affidavit of Dr. Templeman is as follows: “I, A. D. Templeman of lawful age and residing in Cameron, Clinton County, Mo. and after being first duly sworn on oath state, that I am a regularly licensed and practicing physician at Cameron, Mo.; that during the year 1939 I held the office of Coroner of said Clinton County, and that in the perfоrmance of my duties as Coroner I went to a point near Gower to a filling station, in response to a telephone call, and there viewed and examined the body of one Cecil Curd, who had been shot and killed. I took from a bib pocket [684] of his overalls (I believe from an inside pair of overalls) a pocketbook containing the sum of four and 45/100 dollars. Mr. Curd’s brother, Paul, told me that the pocketbook belonged to his murdered brother, Cecil, so I gave Paul Curd the custody of the pocketbook and money, receiving a receipt for the same.
At the undertaker’s establishment, Lucis Daius, Dearborn, Mo., one dollar and forty-five cents was found scattered through several pockets of Cecil Curd’s clothing and this money was also given to the custody of Paul Curd and a receipt was taken.”
We do not agree that Mr. Dalrymple’s evidence is subject to all the constructions appellant’s counsel attribute to it, neither do we indicate that the appellant was or was not entitled to a new trial because of newly discоvered evidence but if the facts stated in the motion and affidavit with reference to the money are true, and there is every indication that they are, they are not only strongly corroborative of what we have already said in our principal opinion with respect to the sufficiency of the proof of a robbery but also indicate the availability of evidence as to what actually became of some of the money supposed to have been taken from Curd’s person or presence.
There is not the slightest evidence, either direct or circumstantial, of an attempt to commit a robbery of any degree—if the circumstances are permissive of any inference in the state’s favor it is that Conway and his accomplice were engaged in the actual perpetration of a robbery as defined by
The motion for rehearing is overruled. Ellison and Tipton, JJ., concur; Leedy, J., dissents.