*1 1921. TERM, OCTOBER Yol. 290] Ellis.. THE Appellant. STATE v. CHARLES ELLIS, Two, 19, 1921.
Division November Assignments. appeal judg- or APPEAL: No Brief On an from 1. filed, assignment felony case, of no ment in a no brief where is judgment made, no is motion in arrest of filed errors below, Supreme trial alone looks to motion for a new the the Court reversal occurred error sufficient to warrant to determine whether at the trial.
2: felony A IN CRIMINAL CASE. defendant in a DEMURRER proper posi- no his own behalf in is introduces who challenge overruling the of demurrer offered at the tion case; if hm motion for a the State’s of close sufficiency challenges on the whole record of the evidence presented conviction, for review on is to sustain appeal. conspiracy may be to commit murder CONSPIRACY: A 3. Murder. in evidence. If from the inferred facts circumstances sufficient to authorize the inference are facts and circumstances pursuance companion acted in a common and his that defendant murder, guilty upheld, purpose will be al- verdict of to commit shooting. companion though the actual did Degree. Second Where the Murder in INSTRUCTION: 4. degree, is con- and defendant first to show murder tends complain degree, he cannot in the murder second victed of given, degree proper second on murder in the degree. gave on one first the court murder nor that statutory duty Evidence. It is —-: Circumstantial 5. evidence, inference circumstantial to instruct court circumstances, for then guilt facts and inferred from to be is information) necessary for the is an instruction such reaching verdict. their attorney Cross-Examination. The AS WITNESS: DEFENDANT 6. right defendant, State, has cross-examination go questions examination. his direct into for Review. To attach JURY: Preservation ARGUMENT TO excerpts from new trial the motion for a SUPREME COURT OF Ellis.' which, attorney State, part in- made tbe for tbe no exceptions, corporated preserve tbe sufficient to bill is not complain appeal. any basis them for Nor is there review *2 appeal exceptions if no to them were saved of such the trial court. appeal Exception. complaint OF
8. WITHDRAWAL JURY: No A be to withdraw cannot based on the refusal of the trial court jury pending upon competency thfe of certain testi- decision mony, request ruling exception if there was no on the no and by appellant. saved by 9. INSTRUCTION: error Refusal: Covered Others. is not requested by refuse an but a instruction defendant where it is fully repetition given it are of others and the matters embraces by such others. Assignments. 10.MOTION FOR General An examina- NEW TRIAL: transcript disclosing actually tion of the entire no error committed by court, judgment adjudging guilty of defendant the trial J., degree affirmed; BLAIR, in the second but JJAVID E. is murder J., part opinion HIGBEE, and announcing not concur with that P. do assignment general for a that a in the motion new trial passion prejudice of and on the that verdict the result part admission and error committed in the insufficient, express testimony themselves and exclusion of attempting rulings heretofore announced not satisfied with as distinguish assignments civil cases. between such in criminal City Benj. Appeal Louis Circuit Court.—Now. from St. Judge. Klene, J. Affirmed. Attorney-General, Barrett, W. Robert
Jesse Attorney-General, respondent. Assistant W. Otto, passion (1) allegations prejudice pre Mere nothing sent for review. State v. 265 Mo. McBrien, (2) commit The court did not error overrul 604. ing appellant’s of a nature demurrer requested appellant at the close of the testi State’s mony-in-chief. The record discloses there is substan jury. tial evidence submit case to the v. v. DePriest, 83; State 232 S. W. State 234 Mo. 1921. 221 TEEM, Yol. .OCTOBER v. Ellis. State 216 James, 394, 407; v. Mo. v. State State 627;
615, Wooley, Belknap, 221 39. Mo. State v. S. W. 687; 215 right upon his to insist demurrer Defendant waived Ms introducing his own at the close the State’s Belknap, 45; Mann, 221 State S. W. v. evidence. State 230 Mo. State Martin, 700; State v. 69; 217 S. W.
Lackey, 98. Fuller, Mo. State S. W. admitting (3) alleges the. court erred improper, incompetent prejudicial illegal, evidence, timely part ob on the over introduced jections exceptions foregoing defendant. The objection to re the evidence is the court for before complained particular view. should trial. he indicated the motion for Brown, Holden, (4) Whitsett, The cross- *3 improper, illegal examination of the witness was not or prejudicial, attorney guilty nor was the assistant circuit permitting nor did court err in misconduct, him to prejudicial (a) questions, ask A the witness witness good the defendant who testifies latter’s char may, interrogated acter on cross-examination, he toas knowledge. sources information and his although independ character of the other and accused, charged may against thereby ent crimes the defendant Boyd, be disclosed".State v. 107 State Crow, 342.; Mo. v. (b) rulings 178 Mo. 17. 2, The of court as to the admission of are before not this court objection testimony, for review. A mere to the without grounds stating require any will not an therefor, exam admissibility ination into the evidence. v. State Mo. Westlake, 679; 159 669, Decker, State v. 217 Mo. 315, 325; State v. Mo. Bell, 212 v. Ill; State 199 Harris, (5) Mo. 723. 716, Cross-examination the defendant proper. A careful examination of the evidence brought out on cross-examination of the defendant does questions not disclose that he asked which referred to the character and criminal records other de
222
OF
SUPREME COURT
(cid:127)
State v.
indictment. Cross-examination
need not
fendants
tlie
categorical review of the
to a mere
matters
be confined
Meyers, 221
examination. State v.
Mo.
in direct
stated
Foley, Mo.
State v.
190
638;
Miller,
247
Mo.
State v.
613;
(6)
instruct
Goldsby,
Mo.
Pfeifer,
23, 29;
the case. State v.
George,
48, 57;
270;
*4
(10)
Gaultney,
210 Mo.
State v.
221 Mo.
664, 676;
(b)
Prunty,
v.
Mo.
376.
is not
State
276
rever
359,
jury
during
pre
error not to send the
out
sible
liminary hearing
admissibility
to- the
of
as
evidence.
(c)
point
399.
Stebbins,
188 Mo.
This
State
objection
not
this court for review. There was no
before
exception
made or
saved to the refusal of 'he court to
jury.
withdraw the
State
188 Mo.
399.
Stebbins,
(12)
alleged improper
of
remarks
The
assistant
exceptions.
attorney
not
bill
circuit
are
set
of
forth
to whether or
Therefore
not such re
proper will
be reviewed
marks were
court.
this
33, 41;
267 Mo.
State
Arnold,
Brooks,
(a)
Mo.
380.
106, 118;
McAfee,
Mo.
Alleged
improper
shown
remarks cannot be
affidavit.
Welsor,
McCarver,
717, 740;
State v.
State v.
57(3,
(b)
State v.
305.
Lamb,
141 Mo.
It is not sufficient
the remarks
to set forth
of counsel
in his
motion
to the
for new trial.
Bulling,
v. McDaniel,
105 Mo.
306.
_
Appellant
one of four
BEEVES,
defendants
C.
charged
degree
killing
with murder in
the first
Henry
City
night
Krallman at
on the
of St. Louis
day
July,
information
25th
approved
sufficiency
questioned.
form and its
was never
severance,
had a
his- trial the
guilt
returned a verdict of
for murder
the second
degree only,
imprisonment
punishment
and fixed his
at
penitentiary
twenty-five years.
in the
a term
His
.per-
having
motion for
been
trial,
overruled,
appeal
fected his
court,
this
has
no brief and
filed
assignments
has made no
of error.
circum-
Under
judg-
stances
absence
a motion in
a'rrest
we look alone
ment,
motion for
new trial
whether
determine
error sufficient to warrant reversal
*5
SUPREME COURT OF
Maggard,
the trial.
Of of error in the tire mo- repetitions tion for a several were mere and trial, may following: into the be condensed all
(a) conviction; to warrant Insufficient prejudice (e) jury; (b) and of the Error in Passion instructing on murder first and de- second gree, instructing (d) on and evidence; circumstantial' testimony; (e) of Error admission Misconduct Attorney in cross-examination of his the State’s argument; (f) closing witnesses and his defendant’s to withdraw the while the Failure admissibility questions being of certain considered give (g) refusing appellant’s Error court; requested instruction No. 2. July p. Henry m. 25th, 11:30 on Krall-
About shot and killed in saloon man, deceased, was his on McOaffery southeast corner Marcus streets McOaffery City of St. Louis. Street runs east* runs north and west and and south, Marcus Street Ash- being parallel land Street one block north McOaffery, being and Cora Avenue one block east parallel to Marcus. tragedy apparently
At the time of the deceased aloiie in his saloon, east on which faced Street. Marcus family upstairs lived with He his saloon over grocery facing McOaffery. latter- store, the north daughter
Lillian Krallman, deceased, upstairs, ready when she heard down retire, two shots saloon; room, went to the north window she running looked out saw two one men, coatless, north up cottage the terrace and on the across the lawn McOaffery north side of then went down Street. She lying to the saloon wdiere found deceased the floor she with a bullet dead wound in There was no con the head. troversy killing. about two men Other saw witnesses being immediately run north one after shots, the two Yol. OCTOBER TERM, v. Ellis. *6 following man a taller wearing
a short- coatless man a dark snit. prior tragedy to minutes
A an few automobile lights stopped, facing without east on Ashland and on only a feet thereof, the south side and few east of Marcus. This was short block north of saloon. Two men got out of the one short and coatless and car, the other wearing a dark The driver of the car tall, suit. said he place, around meet them would drive and at the same replied, to which one the two “You be sure and be ’’ turning here. The car drove on then east Ashland, and disappearing returning to north on Cora, in a few place. interim minutes to same In the the two men soon two on-Marcus, walked south shots were heard, running waiting then the same men hack to two came taller they man somewhat automobile, front, jumped say, on car man the shorter “I heard proceeded rapidly him.” The then killed car east with Shortly lights disappeared. on and thereafter defendant Timothy and John G-.Ballman O’Donnell, Walter r appeared McCarthy together in o one more saloons together they drank and ate sandwiches. When that he admitted arrested, was Krallman’s saloon with O’Donnell Krallman killed, John when say killing but refused who and futher did the admit McCarthy, ted that he was with Ballman and O’Donnell stopped the automobile that on the corner of Ash place land Marcus block north of the one . tragedy Appellant testifying in his own said he met behalf McCarthy, days prior Ballman and O’Donnell few tragedy; night they that on the fatal started out in p. car Ballman’s about 6:30 m. to a bondsman for find McCarthy’s employees, jail; one that when then they got to Ashland block north of the saloon of the one stop, deceased, O’Donnell to the driver to as he called thought sign he bond; knew fellow “back here” stopped got out, the machine start- and O’Donnell
290 Mo.—15 SUPREME COURT OP MISSOURI, v. Ellis. twenty away down the when feet street,
ed appellant but called go to with him. intoxicated, got walking a ’Donnell, and followed 0 back out feet few got appel- they McCaffery of him. down to When Street got lant “stumbled on rock” and then O’Donnell fur- appellant got ther him. ahead of saloon When the. get door and in, before he could were fired and shots appellant pointing gun O’Donnell toward came at ordering get him and him to back machine, pursued by gun ’Donnell him. did, with the After killing, Ballman 'the were O’Donnell with drinking together McCarthy saloon, Haberman’s re- maining in outside. facts the automobile Other given opinion. will be course *7 question I. The first for determination is the one regarding sufficiency testimony. Appellant the being at demurred the close of State’s but, over proceeded he ruled, to introduce . properly bn bis own behalf Sufficiency of He cannot now Evidence. challenge ruling refusing of the court sustain his demurrer. Martin, Belknap, State 221 S. S. Mann, W. 217 W. Lackey, 67; 707; State Fuller, 98.]W. challenges
However, as the motion newa sufficiency of the evidence the whole record, presented that for our consideration. unprovoked
That a most atrocious and murder was committed stands uncontradicted on this record. On the night tragedy appellant, companions, with three namely, Timothy McCarthy, Walter G. Ballman and admittedly together John 0 ’Donnell,. were from 6:30 evening in the morning, until one o’clock of the next us- ing During Ballman’s automobile. time that their where- wholly appear abouts was not but it for, accounted did they sought that probably at saloon one two bond McCarthy’s for jail. employees, one of who was confined in thq p. containing About 11:20' automobile, m. the Yol. OCTOBER TERM, y.
appellant companions, lights,, appeared and bis without at corner of Ashland and Marcus one streets, short place operated north of block deceased where stopped saloon. The automobile on Ashland near the southeast corner of Ashland and Marcus. The defendant, got with John out of O’Donnell, one the automobile on whereupon said Marcus and southeast corner of Ashland, car driver said drive would around and place, ap- meet them at there the same either pellant or O’Donnell said, “You be sure be here.” directly then O’Donnell walked south on place Marcus Avenue toward the of business of deceased. When arrested defendant admitted that he and ’Donnell together were in the at the saloon deceased time of the say shooting. killing, but he refused to who did the At except the trial all of above facts he admitted he was saloon. said that He O’Donnell called stopped him after automobile had Ashland and in- accompany saloon; vited him to O’Donnell down appellant thought being then intoxicated he would go along get a drink lemon selzer; O’Donnell feet walked ahead un- few they McCaffery til reached stum- Street, over and then 0 ’Donnell rock, lead; bled increased his appellant got open that when door of the saloon immediately he heard two shots and was confronted *8 appellant menacing with 0 revolver, ’Donnell with drawn fright- being ordering and machine, him back to the and pur- ran ened he suing to the machine with O’Donnell back gun. appel- him with his ten minutes after Within they Ashland, lant and O’Donnell left the car on came running Immediately back. 0 ’Donnell after the and shot, McOaffery, appellant running were north across seen cottage up of a the the terrace and across the lawn McCaffery of Marcus. The auto- east north side of and McCarthy waiting with it was at Ballman mobile and agreed appellant place, sprang ’Donnell and and 0 shooting, heard into after the one of them car SUPREME COURT OF say, sped him.” “I killed The automobile then east on Shortly appellant, disappeared. Ashland and thereafter appeared in a saloon Ballman, with O’Donnell and they undisputed together. and drank These were the ate practically and the truth thereof case, facts appellant, although at the admitted he said not in that was the saloon intimated 0 ’Donnell compelled shooting and him to did the then flee at the point jury pistol. right disregard Yet of a had a part appellant’s right and had this only probably the fact of the did, which it mur- consider, under which and his the circumstances der, place tragedy, approached companions ad- saloon, occured in the cir- mission as to what away, they and these cir- which fled under cumstances might ample from inference be were cumstances companions there with and his went drawn that design taking the life of the deceased. the common proper only the court submit the not It was against jury, but its was not verdict case weight Priest, v. De [State evidence. 83.] 232 W. appellant’s companion, though O’Donnell,
Even yet shooting, may had the actual done the have pur testimony, right, to infer that he acted conspiracy. purpose “The law or of a common suance positive require of such not direct does may be inferred from conspiracy. if it It is sufficient in evidence.” circumstances facts Roberts, l. c. 234 Mo. Sykes, 191 Mo. Darling, assignment is the the verdict Appellant’s
II. sup prejudice passion result allegation, and a careful by any ported reason transcript fails the record reading the entire *9 ’ TEEM, OCTOBEE Vol. .
State v. part any on misconduct disclose might any jury an inference act from Passion and or hy passion jury was moved that the he drawn Prejudice. allegation in prejudice, an such presents nothing for review. for a moton new 1919.] R. S. 4079, Sec. McBrien, 265 prejudicial no error to in III. There was instructing murder in the first and second hy degree evidence, as claimed circumstantial in motion new trial. As was said him his for well 615: Instructions. clearly tending prove mur evidence ‘There was stop inquire degree, need not der in and we the first prove murder in tended the second whether it also degree, provided hy 4903, it Section Revised Stat Revised Statutes utes now Section ‘any person guilty found of murder second de punished gree, according . to the ver . shall he although . jury; the case of the- show dict s ” degree guilty higher homicide.’ him be beneficiary this in therefore was it behalf and he can error, and if struction, complain as here, of such not degree. Again first tends murder to show Section provides specifically Statutes Revised judgment shall not he affected “because of conviction guilty to be or him the evidence shows tends show a'higher degree he is of the offense than of which ’ ’ convicted. duty statutory of. the court instruct was the that became evidence, on circumstantial as necessary arising the in law the case verdict, giving [Sec. formation of the their R. S. specify Although mo in his TV. did tion have testi done, for a should trial, SUPREME] COURT OF MISSOURI,
State v. Ellis. mony objections, carefully admitted over his we have parched testimony the record and find we no Objections. produced objections to the over his ap should have been excluded. In view fact that . except pellant ruling, did not to the court’s adverse save greater part instances, few such matter is not [State Snyder, before this court for review. 173 W. S. 263 170 Mo. S. 262 W. 158.] Again exceptions where saved his to the rulings of adverse the court admission testi mony, pointed he out in his motion for a new should.have particular complain trial the about which he entirely ed, otherwise motion is as too indefinite. [State v. Mo. 581.] Holden, Much the' Y. motion for new trial consists of complaint against the conduct of the Assistant Circuit ’ Attorney in the manner of his cross-examination of Appellant witness. and his
Cross-Examination. specified definitely has more in these assignments the character nature of such cross- objectionable by examination, hut .the reference mat ter in the record we find the Assistant Circuit Attor only questions ney into went direct ex right assign This he do, amination. had is without ment merit. v. Miller, 156 Mo. 56 S. W. 907.]
VI.
attached
motion
for
excerpts
argument
alleged
from an
made
Attorney
Assistant Circuit
at the
argument
complains
close of the case, Argument to
Jury.
against misconduct.
We have examined the
exceptions
pait
argument.
bill
no
and we find
of such
only
argument
record of
such
contained
statement attached to the motion
a new trial.
It is
presumed,
no
therefore,
there was
misconduct.
Lloyd,
[State v.
l. c.
S. W.
Schrum,
OCTOBER TEEM,
Yol.
v. Ellis.
Engle,
Miller
164 W. Dougherty App. Whitehead, c. l. 579 and improper prejudicial Again, if even excerpt jury, argu- from such had been made to the did not attached to the motion a new trial ment as ruling single exception was saved show that a to. appears the court sustained of the court. by appellant’s objections counsel rebuked made Attorney, except in one case & ssistant Circuit *11 merely a matter said it was the court proceed. Attorney Circuit the Assistant and directed requests exceptions and no were'made No were saved discharge jury, reprimand and in counsel and consequence complaint there no basis for here. is Complaint against action made is
VII. refusing pending decision to withdraw in court competency of by certain court to the tes trial as request timony. shows that such The record during the Withdrawal of the court examina was made Jury. Sergeant P. John Roach. tion of Detective no exceptions by ruling saved made court No question appellant, not before us by is review. so this Snyder, 173 W. complains court further VIII. give refusing Number Two. Instruction in erred repetion requested was but This Number Six and other Instruction Refused Instruction. given by court, and as the the by instructions fully other instructions, matter same give this one. refuse the court not error it was carefully in the entire record examined have We appellant’s by touching questions raised all this ap- judgment that it 'is our for a motion questions correctly fairly pellant tried sub: appears to disturb the jury. reason No to the mitted accordingly af- it is judgment court, lower of the concur. White, CC., Bailey and firmed. OF SUPREME COURT
State v. Cantrell. opinion foregoing by Reeves, PER CURIAM:—The adopted opinion All of the court. C., separate judges opinion, in Blair, J., D. E. in concur; Higbee, P. J., concurs. (concurring). E. BLAIR, DAVID J. concur —-I by reached Commis this case learned result everything opinion, except sioner and in said in the what insufficiency is therein said reference to the general assignments error in motion for new trial attacking passion the verdict pre as the result judice, rulings attacking of the trial court y . the admission and exclusion of testimon rulings
I am not satisfied with the heretofore made by distinguishing assign- this Division between such ments in civil and criminal cases and' believe in a proper .case a final by decision Court in Banc is desirable. But since the Commissioner has transcript examined the and found that no error was actually regard committed the trial court in to the matters general'assignments, attacked in such with which ruling agreement, I am I concur the result reached Higbee, him. P. J., concurs these views. *12 Appellant. STATE
THE v. ELMER CANTRELL, Two, Division November 1. INSTRUCTION: Converse State’s: Inference. converse instruction, defendant, of the State’s if asked be should given. may be that a will infer the converse of a correct given State, for the' be defendant’s case should not
submitted on an inference. Robbery: charged Conspiracy. 2. -:-: The information Cantrell, Presley gold Coleman and Duboise had robbed watch money. severance, forty granted dollars Cantrell