*1 evidence, is since there substantial evidence record trial must be and granting plaintiff a favor the order new plaintiff’s Barrett, GG., Bohling and concur. hereby is affirmed. C., The foregoingopinion PER CURIAM Westhues, judges All the opinion as the concur. court.
adopted Appell alias Cotton Conway, Conway, Kenneth David (2d) 677. 38215. 171 S. W. ant. No. Two) March Division Rehearing Denied, June Pulley appellant. L. A. B. Alexander Frank *2 Roy McKittrick, Attorney General, Hewitt, Assist and R. Covell Attorney ant General, respondent. for BARRETT, C. Kenneth David was convicted of degree
murder in the first and sentenced to suffer the penalty death.
By irrefragable an set circumstances the state’s evidence shows an habitual Conway, criminal, shot and Curd, killed Cecil filling station and attendant, question presented by appeal this is the proof killing whether shows the to have been “deliberate and premeditated” compelling a verdict of degree. murder in the first R, A., Mo. S. Sec. 4376.
The state contends that the defendant’s motion for a new general trial is too to point save the review this cоurt. eight paragraph But of the motion for a asks new trial “because premeditation there was no evidence of or deliberation on part defendant” we do see more could be said call the to 128 pre- It existence of trial court’s attention. matter disting- defines, which delineates deliberation meditation types murder kinds and degree other murder in the uishes A., penalty. Mo. R. S. death assessment permits (2d) (Mo.), W. 4378; Eaton S. State v. Secs. assignment (2d) Reagan (Mo.), 108 W. S.
767; particularity greater detail and points sрecific and out is more than any,' case accurately vice, if state’s even more sub- "there is no case assignment a first murder comply which was held the verdict” support evidence stantial trial "set motion for a new statutory demand with the grounds specific . . . particularity with in detail and forth Goodwin, 61 W. Mo. S. State v. or causes therefor.” Consequently we are confronted A., Mo. R. Sec. only that the not the whether or evidence such problem of *3 Conway’s killing that of Cecil could draw jury was inference the and, therefore, murder premeditated and Curd was deliberate .in under only degree permitted to find jury the degree, the the first the court’s instructions. a "com- theory the evidence shows is that homicide
The state’s . . rob- attempt perpetrate . or to perpetration mitted in the therefore, killing murder bery” and, is "deemed the first the premeditation of deliberation and degree,” dispensing proof with A., 4376; accepted sense. R. S. Sec. State v. usually Mo. their 377; 340 Schnelt, 241, (2d) Barr, 341 Mo. 108 W. State v. Mo. S. 1199, (2d) Moore, v. 326 Mo. 33 738, (2d) 629; 102 S. W. State S. W. position defendant’s is that the state hand, 905. On the other the failed to proi^e a homicide in the perpetration a robbery a murder and for reason thereby premeditated deliberate and new he entitled a trial. is to against practice indict or inform de approved
The is to a charging degree as done murder in the in the fendant, here, first specific he then there language that "did criminal usual deliberately, wilfully, unlawfully, preméditatedly, feloniously, intent aforethought” deadly his malice purpose, on and of assault with a prove and then weapon and kill Cecil Curd the homicide occurred though charged during a even fact is not in robbery, in the though dictment or and even there no information, other evidence is jury distinguishing which infer the essential and the could premeditation. Nasello, elements of deliberation State v. 325 (2d) 442, 132; Messino, 743, 30 W. State v. 325 30 Mo. S. Mo. S. W. " (2d) premeditation’ 750. ‘deliberation and formula, on ’’ statutory felony-murder hand, named rule, one on the other determining may hand, perform the function of be what homicides R. punished. 701, 37 L. new are Col. "No capitally offenses by perpetration of, with relation to murder in the created statutes
129 felonies; common- felony a or named attempt perpetrate, to or degrees only. having into same, been divided law remains the offense committed punishment when murder is They only a prescribe severer enormity felony, a attempt perpetrate account of in the usually absolutely degree offense, and fix offense, Wharton, Homicide, 118, Sec. degree.” p. murder the first that the murder if shows was committed Consequently, the evidence robbery statutorily a other named perpetration felony, or murder in first and the could find then the crime is diets; “only namely, ver conviction murder one of two Kauffman, degree,' 611, 335 Mo. 73 acquittal.” or an State v. S. W. Hart, (2d) 217; 74, 473; Jackson, 292 237 S. W. State v. Mo. State 612; 102 12 748, Yeager. (Mo.), 340 Mo. S. W. State v. W. (2d) 30. theory even fact remains that if the
But so .the state’s robbery killed Cecil Curd in the of a by the state show upon was incumbent direct circumstantial a perpetrated evidence that or аttempted. “On trial during perpetration of, homicide committed attempt for perpetrate, felony, another engaged in fact defendant felony hilling commission at time mtost be estab lished, beyond every doubt, reasonable element offense established, must be so but need not be demonstrated to'an absolute may certainty, shown circumstantial evidence, or J., 549, statement 30 C. p. 303; See. v. Wright, df defendant.” 441, (2d) 7; 337 Mo. Wharton, Homicide, S. W. 614, p. Sec. 952; 353, A., the annotation in L. R. 397 398-399; State v. Donnelly, Greenleaf, 130 Mo. S. W. State v. 71 N. H. 54 Atl. *4 Pliemling State, Wis. 1 N. And, W. 278. therefore, question the for our determination is whether there was evidence Conway party an attempted was a or accomplished robbery during course which he shot the and killed Cecil Curd. people Conway
Several identified and his accomplice, Don strangers Stephens, as the seen in during Gower the late afternoon early evening and of October 1939. Some noticed they were driving a black Ford automobile Avithan Oklahoma plate license on They it. Averenot seen in the D-X filling station about íavo and Highway one-half miles from Gower' on 169 AvhereCecil Curd was lulled, Stephens but was shown to have been there because finger found on a coffee prints cup Conway and admitted they Dalrymple were there. Mr. OAAuied the station and lived upstairs. Between eleven and twelve o’clock he upstairs Avent to bed leaving charge. alone and in Cecil Some time later he was conscious of the fact that there was someone the station asking for coffee. He sleeр and awakened went Avas the sound of someone running r a starting and car across the floor and driving away. When got he lying downstairs he c, floor counter found Cecil on the behind the Curd neighbors ?ad. He aroused the and soon officers and others arrived. During night teacher, acting Strange, William a school was night watch for his father in the town of Smithville and while he as garage driveway through was in 3:15 car a about a drove in garage up for and turned around. street some distance They stopped appeared with а car and tampering parked to be Strange standing the time the car came back was at the corner of the bank building able to write the license number building passed. plate car the side of the as it The license Though Strange personally was Oklahoma 39AE037. observe it he occupants knew that the a the Oklahoma car had stolen doc- highway. Strange tor’s later automobile abandoned on the which called City Department Kansas Police and notified them that Ford with an tag Oklahoma licеnse headed that direction and that one of the two men had stolen a car in Smithville. At that time he did not know of near homicide Gower. police
Two officers saw the entering described automobile- Kansas City at a speed sixty of about an hour through miles chased it City the streets of twenty Kansas about blocks. On Fifteenth occupants Street jumped out of the ear and it crashed into parked cab. driver of the car ran north and the other ran south. Officer Johnson went after the man who ran south but was unаble to catch him. Officer Hiles followed the man who ran north and lying found him down on a concrete walk back an apartment house at Fifteenth and Central Streets. man This Conway just away a few'feet was a .380 pistol automatic under (Later some leaves. expert ballistics identified pistol being the same one that fired the shell from empty an cartridge case found in Dalryrhple’s filling Conway station. had stolen pistol in Okla- City.) Conway homa was then taken police headquarters where questioned by he was Mr. Rеed of police force, Highway Patrol- man Baxter agent and F. B. I. During Farland. progress examination Stephens’ revealed hiding place and he and a girl were arrested there about 3:45 o’clock in morning.
Officers Hiles Johnson, policeman who chased and caught Conway, cap, found a flashlights two and a sack in the automobile driving. had been they But said nothing found his possession except his clothes and pistol under leaves, al- though they Only looked. one arresting officers Stephens and *5 girl testified and he was not asked and did say not what, any- if thing, was found in possession their or in apartment they occupied. Dalrymple Mr. testified that when upstairs he went to bed he forgot and left his billfold containing ninety-five to one hundred dollars bills on a shelf back of stairway and that the next morning gone. it He eight also said he left was. or ten dollars for change with usually Cecil and that money Cecil had of his own which kept he in a billfold in however, said, overcoat. He further he did not money know how much after was found Cecil money murder. He knоw he when had last counted his own guessing money he was said at to who took the out the sum. “As your you? it you No, billfold know do said was not, sir.” He of the while thing people usual in and out station to come asleep he was and he would not be aware of it. agent, Farland,
Mr. the F. B. I. conducted the examination Conway “hour police headquarters. at He to him an first talked attempted He intend- two” later several shorter conversations. paragraphs ed written after three had to take a but statement two Cоnway been written with the As refused continue statement. present during parts a result Farland and who were others only .testify examination were able to oral such admissions Conway chiefly Farland with made. was concerned the Ford auto- 'Conway driving, Beaumont, mobile was which had been stolen Texas. He was also in Buick Stephens interested automobile Conway had another state. stolen When examination first began it would seem Farland did not near know the homicide but Gower learned he after had started his It examination. when Conway he accused murder that he refused to con- tinue the written statement. questioned
Farland said Conway he with reference to murder man he gun. this denied it and denied had a that he Later Conway living Shortly “The man he said: was still when left.” “They he fired one After Farland told afterwards said: shot.” Conway shooting they fingerprints knew who had done the suppose “I electric chair for me.” cups he this means the on the said: - Conway Stephens had robbed Curd to whether reference With any make “Bid he at time statemеnts question: he was asked this was: “1 regard in the station”? Farland’s answer believe he did.” don’t if not find he asked he did cross-examination
On he had without something like, means something and answered: over eleven hundred dollars “To contrary he said put Later information away for defense.” he said: “The obtained (a lawyer) had thirteen told that he hundred that he Graf dollars (Here interpolated it should trial for his defense.” court lawyers represent who the defendant, three and that appointed the manner, against great duties in commendable performed their they . compensation.) response In odds, question to the without found to be without hadn’t means he Farland whether got a few on them “They brought dollars when answered: Stephens no However, when searched had additional money, in. Q. money . . Now he had no him, did the woman. nor ... *6 aWell, A. few dollars? few you you, except knew that didn’t a. — say, you would Iiow much Q. (interrupting) dollars, I don’t Possibly A. something that? dollars, like or or to ten five six five Whether it was dollars. eight nine had or so. I know one of them through going recall without just I can’t him fellow or the other you much as through your notes as you may go Q. Yes, the notes. your say of you the best Would matters. to to these want as five ten dollars Conway or didn’t have over impression now that say custody one ? A. I wouldn’ taken into him at time he was very Q. What much. Yes. think he had way I don’t or other. forty say much, A. when I by very Well, you much ? do mean something dollars, had five or ten fifty probably I think he or dollars. Q. had You don’t think he as Q. More or less. like that. Yes. A. Q. You no sir. forty fifty so, A. I don’t think much or dollars? as you, police othеr did him, suppose, I didn’t search officers Q. they did, I . . Yes. You knew he I didn’t. . that? A. believe ' very you? A. money limited amount didn’t person had on his or no any money. he had I talked him he didn’t have Well, when to If away took it him.” they before from “beyond not show opinion It is our evidence does this Stephens shot and reasonable doubt” that killed Cecil attempting perpetrate robbery. “Eve- perpetrating while or to Curd ry feloniously taking person property who shall b'e convicted of person, presence, against will, his or in his anоther of by person, by putting him in violence to his or fear of immedi- some injury person; feloniously ate to his or who shall be convicted of taking property person servant, of another from the wife, of his agent, clerk or . . ... violence . shall robbery adjudged guilty degree.” of in the A., first Mo. E. S. statutory grade robbery Sec. 4450. is our definition of the That this supposed committed, possibly defendant is to have with the added fact robbery supposed that the to have attempted accomplished been or dangerous dеadly weapon. A., means of a E.Mo. S. Sec. robbery 4453. “The in the crime all includes larceny elements of with the added acts of putting violence or the injury immediate person.” victim fear some to his Lasky (Mo.), (2d) 334, 133 W. v.
Assuming permitted should have been find the robbery presence all the other elements of from the circumstances yet detailed, there was no evidence from which could infer or accomplice guilty or his “taking find that prop- erty another,” which is an essential element of the crime. Mo. 4450, A., J., 167, 168, Sec. C. E. S. though Secs. Even charged robbery not be need the indictment or (State information Nasello, though and even supra) may necessary not be for the degree (State court to define the first v. Messino, supra) mur- theory that the crime is yet, indicated, when we have degree, because committed der in the first by direct prove, must robbery the state attempt perpetrate *7 every doubt, ele- beyond a reasonable circumstantial evidence penalty. may the death inflict before the ment of thе offense Kansas of the and Mr. Reed highway patrol Mr. Baxter of the was time Farland part of the City Department present Police any Conway them was asked or testified questioning but neither of that concerning robbery specifically and Farland stated admissions under- robbery. have Conway of We any make admissions not money dealing with the evidence part scored that of Farland’s in found first on either place, Conway, Stephens that what he had to or the say girl on the subject it hearsay. obvious, gave In the it that evidence as he place, second is doubtful such robbery' subject justly or guilty on the tended to show of money alleged that came from the crime. found on either of them Compare: (Mo.), Annotation 3 A. L. R. 1213 and State v. Williams any who arrested and S. W. 308. None officers searched any finding any money near parties testified to sum of on or only people possessed them. And were the who the best and n subject. Construing liberally information on the all the evidence nothing there is in it accomplice to show or his admitted any a or an attempt rob, nor is there evidence to show any money either property of them had or which could have or' did filling come from the D-X station near Gower. course, any
Of if is not conclusive there is other evidence from which it could be found defendant accomplice that the or his took money filling station, or other valuables from the but we are unable from this record it. Dalrymple forgot to find Mr. said he and left money billfold, shelf, in his a stairway some on back when he morning went to bed at -eleven and that gone. next it was It is not clear whether both the billfold and the were gone only the money money. Nor is the time next fixed as to morning when it dis- money missing covered the -was and between the time it was left and having great missed and after Cecil’s been murdered there were a many people in and out of station. reasonably
The most that could be found from Mr. Dalrymple’s through property larceny. evidence is that he had lost his a people, including Dalrymple, Several Mr. lying saw Cecil on the Starks, floor neighbor behind counter and Dr. Allen Hawkins, boy, patrolmen highway two and the coroner closely examined him fully yet what, anything, missing no one testified as to if by way money found or valuables. Neither was clothes, there evidence as to the condition of his such as his pockets being turned out or an indication that his clothes had been (Mo.), 738; W. (State White, rifled. v. McNeal 237 S. State (2d) 520.) Page (Mo.), Mo. 51 S. W. State v. 130 S. W. Though money Dalrymple’s Mr. it was said he had of his own and well, certainly evi- it was shown that was such missing not. dence available. out, making a homi pointed
As
have
statute
purpose
we
felony, murder
robbery,
or other named
cide
the commission of
absolutely
degree
fix
of the offense and
is to
facts
thereby
penalty.
death
assessment of the
permit
of a rob
a homicide
the commission
the instant case do
show
draw
bery
jui'y
permitted
such that the
should
are not
previous
all the
cases
there was.
In
inference
.them
that the homicide
beyond a
doubt
evidence has shown
reasonable
statutory
robbery or other
was сommitted in the
an ad
every
cases there was either
felony.
In
one of the
named
felony
statement)
or a
(such
mission
as a confession
rob
positively testify that a
could and did
or a witness who
accused
*8
usually
identi
has
been
bery
homicide and the defendant
preceded the
murder, or the evidence
robbery
con
as a
participant
fied
in.the
and com
clusively
have been committed. See
robbery
the
showed
Brooks,
420,
696; State
Wilson,
72 S. W.
v.
pare :
172 Mo.
State v.
239, 22
Mabry,
Mo.
S. W.
353;
324
220
119 W.
v.
74,Mo.
S.
State
Nasello, suprа;
v.
Messino,
State
639;
supra; State v.
(2d)
v.
State
Mo.
Glover,
901;
330
1205,
(2d)
S. W.
State v.
Aguelera, 326 Mo.
33
Jefferson,
White,
1049;
supra.; State v.
709,
(2d)
50 S. W.
State v.
80,
929;
Powell, 339 Mo.
95 S.
v.
57,
(2d)W.
State
334 Mo.
64 S.
612;
748,
(2d)
S. W.
Jackson,
Mo.
102
340
(2d) 1186;
W.
v.
State
Barr,
653; State v.
680,
(2d)
102 W.
Richardson, 340 Mo.
S.
State v.
Schnelt,
241, 108
341 Mo.
738,
(2d) 629;
v.
340
102
State
Mo.
S. W.
384;
(2d)
108 W.
377;
Kennedy (Mo;),
S.
(2d)W.
v.
S.
State
King,
315;
v.
(2d)
State
Morefield,
1059, 119 W.
342 Mo.
S.
State v.
.showing in the
no such
1067,
(2d) 322. There is
342 Mo.
119 S. W.
theory
proof
that the
and is
state’s
instant case and since was
the
thereby dispensing
robbery,
a
commission of
of a homicide in the
en
deliberation,
defendant
is
premeditation
evidence
engaged
the defendаnt
suspicion that
titled to a new trial. Our
strong
time, regardless of how
robbery
perpetration
of a
at
tablishing
327 Mo.
feeling
299,
may be,
36 S. W.
necessary
cannot
elements of the
914;
supply
v.
take
crime. State
Davis, 337 Mo.
place
of evidence
404, 84 S. W.
v.
Pippin,
es
(2d) 633.
was confined
murder he
for
Before
was tried
returned
Leavenworth, Kansas, and was
Penitentiary at
United States
di
prosequendum
corpus ad
habeas
County
writs of
to Clinton
of Mis
District
the Western
Marshal for
to the
States
rected
United
by the
at Leavenworth
penitentiary
souri and the Warden
appointment of.
arraignment,
County for
Clinton
Circuit Court of
135
counsel, and trial. The
contends
is no authority
defendant
there
for
acquire juris
trial
procedure
such
court did not have or
person
by getting
diction of the
of the defendant
him before the court
point
in that
This
we need not
manner.
decide. But see: Ponzi v.
254,
309,
42
L.
Fessenden,
607;
258 U. S.
Ct.
66
Ed.
Pettibone v.
Nichols,
192,
111,
148;
Jur.,
203 U. S.
27 S. Ct.
51 L. Ed.
14 Am.
Sec.
22 A. L. R. 886
62
notes in
and A. L. R. 279. There is a
vast
in the criminal law in
court’s not having juris
difference
subject
having jurisdiction
diction
not
matter and
of the
waived,
of the accused. The former is never
as the cases
by
cited
indicate,
appellant
the latter is waived when the
while
defendant enters
plea
guilty
objection proceeds
of not
without other
to trial as
Compare:
Jur.,
214; Henry
was done in the instant case.
14 Am.
Sec.
Henkel,
Lamar,
235 U. S.
L. Ed.
Ex parte
S. Ct.
GG., concur.
PER foregoing opinion Barrett, C., adopted CURIA M: The judges opinion as the the court. All concur. Rehearing. Motion For
On PER rehearing motion CURIAM: In its the state does object prinсiples applied to the but that we contends have over looked purport evidence; effect from which evidence certain did and should permitted engaged find that attempt of or perpetrate when he shot and killed position Cecil Curd. The state’s is that circumstantial discharged evidence it obligation its proving beyond a reasonable *9 accomplice engaged doubt that his and were in the commission attempt robbery. of or commit a to again points state Dalrymple’s especially
The to Mr. his evidence, upstairs forgot that testimony before he to bed he and left went stairway” $95.00 to in his $100.00 billfold “on shelf behind the morning gone. and the next He that he also testified left eight making change ten dollars of and purpose with Cecil for money kept that Cecil had some of own. He said his Cecil the station money in money up his overall and own “in here pocket his a billfold in principal opinion pointed his overcoat.” In our we out the ob- why jections the weaknesses all to and of this evidence and indicated thought we theory it insufficient sustain the state’s of A to its case. changed re-examination of the record our views but there is has strongly one corroborative have further circumstance of what we already said. twenty-fourth assignment in his motion a new appellant’s
The testimony to the effect trial is as follows: “Because state offered money that was missing body (Curd) shortly from the of deceased after the homicide by Dalrymple, thereby implying witness de- that fendant had money, moneys taken said when in in truth and fact said had been taken from the body by the of coroner of Clinton deceased and County by appears also the undertaker, as affidavit of Dr. A. D. Templeman, Coroner, attached hereto. And said facts came knowledge to the of defendant and his counsel after verdict of rendered, although diligence due defendant’s coun- sel they was exercised in attempting facts, to learn facts these which ’’ not at the time know. “I, attached of D. Templeman affidavit Dr. is as follоws: A. Templeman age residing Cameron, County, of lawful and Clinton Mo. and after being state, reg- first duly sworn on oath that I am a ularly Mo.; during licensed and Cameron, at practicing physician year 1939 I held the County, Coroner officeof of said Clinton and performance that in the my duties I point as Coroner went to a near filling station, response call, Gower to a telephone to a Curd, there body viewed examined of one Cecil who had been shot and killed. I took from a bib pocket of his overalls (I be- from an pair overalls) containing lieve inside a pocketbook’ sum of four brother, Mr. me Paul, dollars. Curd’s told 45/100 belonged the pocketbook Cecil, murdered so I brother, gave custody money, receiving Curd the pocketbook Paul of the receipt for the same. At the establishment, Daius, Dearborn, Mo., undertaker’s one Lucís forty-five dollar and through cents was pockets found scattered several money of Cecil given custody Curd’s and this clothing also receipt Paul Curd and a was taken.” agree Dalrymрle’s We do not that Mr. subject evidence is to all appellant’s it, constructions counsel attribute to neither do we appellant indicate or was not entitled to a new trial newly because of discovered evidence if the but facts stated money true, motion affidavit with reference to the are and there every are, indication they only strongly are not corrobo- rative of have already principal opinion what we said in our sufficiency respect to the proof robbery aof but also indicate availability actually of evidence as to what became of some money supposed to have been taken from presence. Curd’s slightest evidence, circumstantial,
There is not the either direct or attempt robbery of an any commit the circumstances —if percnissive are inference in the state’s favor it is that accomplice engaged and his the actual A., is, as defined Mo. R. Secs. 4450 rob- *10 degree. out, bery (4376) in the first As we pointed statute dis- absolutely penses proof premeditation with and deliberation and degree, per- fixes' the the offense as murder the first mitting penalty Considering assessment of the extreme of death. evidence, knowledge all weighing purpose statute, strong present it does not set effect of the of circumstances obligation beyond discharge of proving the state’s required to every particularly element of the offense doubt reasonable .perpetration he engaged when shot Curd. and murdered rehearing Tipton, JJ., is overruled. Ellison and' motion for J.,
concur; Leedy, dissents. Roy Rizor, Appellant. 38191. 171 W. No. Two,
Division June appellant. &
Collins Oshorn for