*1 SUPREME OP COURT MISSOURI. jury court enough, did not instruct the but instruction. point that it instructed them on a on which possession there was evidence, no to-wit, Todd and carefully Dan.” have We examined the instructions given by they correctly court, and hold stated the law of the case. necessary pursue
VIII. We do deem it inquiry posses further. The defendants found in intosicating’ liquors in violation of law, sion Conclusion. punishment only they received hands a fine of each. We find no $100 legally error the record which can defendants com plain. judgment accordingly Hig below is affirmed. sitting. bee, notG., opinion foregoing
PER CURIAM:—The of Railey, adopted opinion isC., All as of the court. of the judges concur. Appellant.
THE v. EMMET STATE KINNAMON, Two, May 28, Division 1926. Filed, APPEAL: Motion for
1. New Trial: in Vacation: Corrected. Transcript: Having Reinstatement. declined the bill of to consider exceptions appeared' because it from the record that the motion for vacation, appearing a new trial filed in the error was. proper, judgment was, reasons, affirmed, record these and it being subsequently transcript shown a corrected the motion seasonably days verdict, during filed within four a recess court, court, upon- motion, jus- its own in furtherance grant rehearing. tice, will a young Failure of 2. MURDER: Evidence. that a man was Evidence prompted, goaded 'incited even defendant to enter down, robbery as the restaurant of deceased and shoot jury may motive, find defendant fact from which the murder, although actually present when homi- he was not robbery cide and were committed. APRIL TERM, 1926. Yol. 314] Kinnamon. Conspiracy. necessary conspiracy -: between It is to show young man shot the absence of defendant and who deceased defendant, prima-facie showing Thereafter the is sufficient. jury. A its actual existence is for the *2 robbery may by murder, motive, cir- be commit with as the shown alone, reception evidence cumstantial evidence and in the of such great latitude allowed. n — n -: Occurring young -: after Crime. man Facts Where 4. the plea actually shot and robbed deceased has entered who by sentenced, is used the State and he as a witness and been prove conspiracy the between him and defendant to commit crime, purpose made and' acts done him after the declarations objectionable; accomplished, but where he the are relating questions the to such declarations acts answers tending negative, no statement and testifies to act and makes crime, eliciting questions them the defendant with to connect are harmless. Hearsay: Conceding Exclusion: Rebuke. -:-: that it was
5. prejudicial witness if he had had a conversation ask a defendant, shooting young absence man who did the robbery participation defendant with reference .the deceased, yet if the trial court sus- which resulted hearsay objection for and was called tained an ques- asking improper, for and was asked rebuke counsel more, nothing tion, was no have done and therefore could reversible error. Alleged prejudicial TO Motion for New Trial. JURY: ARGUMENT
6. prosecuting attorney argument in his to the remarks of for the trial court the motion be called to the attention of should they trial, if is not done are not consideration on a new appeal. 226, p. Juris-Cyc. Conspiracy, J., Corpus 12 Section References: C. 1037, 545, Law, J., p. 47; 634, 633, p. Criminal n. 49. 16 C. Section n. n. 1590, 31; 1570,p. 766, 86; 78; 15'66,p. 762, 73; n. Section n. Section Section 2291, 93; 929, 930, 98; 2290, p. p. 779, p. n. n. Section n. Section 91, 3352, 79; J., p. 932, 17; 2294, p. C. Section n. 17 Section n. Section 3537,p. 308, 66; 3655, New; p. 309, p. n. Section 33 Section n. 40, p. 1068, 9; p. 1069, 12; Homicide, J., n. 29 n. 30 C. C. Section n. 90. Witnesses, p. 11, 12, Cyc., 548, 302, p. J., 40 n. 33. n. Section Cooper Henry Circuit Court. —Hon. J. Appeal
Westhues, Judge.
Affirmed.
664 SUPREME COURT OF MISSOURI.
Elmer
appellant.
E. Martin and Dmnm & Cook for
(1)
support
The evidence
insufficient to'
the ver-
justify
dict and to
the conviction of the defendant. The
requested by
demurrer offered and
defendant
close of the State’s case should have been sustained.
Prisby,
State v.
204 S.
3; State v. Larkin &
"W.
Harris,
250
234;
Mo.
State v. Crabtree, 170 Mo.
v.
642; State Gor-
King,
561;
Mo.
State v.
don,
647;.
Mo.
v.
State
Scott, 177
665;
Mo.
State v. Fiancis,
R. S.
v.
Robert W. FI Otto, W. Attorney-General, respondent. for Assistant (1) proper. is here on the There case record This exceptions (a) no is bill of here because: is exceptions; entry showing filing record a bill (b) exceptions clerk. bill The certified is judge Appended signature of the bill below stating a certificate of the filed clerk, bill was August proper on record silent on point. Ricketts Hart, 68; v. 150 Mo. 248 State Little, v. W. 926; Daniel, S. Bower v. sec. Mo. R. 317; Riley, (2) Appellant’s 4103; v. State Mo. 433. de- properly murrer to the evidence was overruled. Evi- conspiracy, only dence of a in the first need instance, prima-facie, show, that the existed. There- question conspiracy is after the of actual existence Roberts, to determine. State v. v. 728; 201 Mo. 347; Mo. State Kolafa, Bersch, 414; 276-Mo. State v. Hill, 273 Mo.
Fields,
murder the first County; 1923, in Cole Tritsch on November being charged principal, acces- as an and Kinnamon as guilty sory plea entered the fact. before imprisonment Kinnamon for life. was sentenced to' County, Cooper change where he awarded venue life jury, found sentenced tried appealed. imprisonment, from which a restaurant conducted deceased, John Tritsch, City, blocks three in Jefferson about on West Main Street *5 (cid:127) Yol. 314] APRIL TERM, 1926. y. Kinnamon. Capitol,
west of the State and across the street from the Company, roundhouse of the Missouri Pacific Railroad patronized by employees. and pay days railroad On pay Tritsch kept money cashed their checks, and on hand purpose. for that pay day, 12th November Tritsch had cashed a number of these checks. sixAt p. employees m. twenty at the min- roundhouse had suppers utes for their at eve- this restaurant. On the ning employees of having November 12th, these eaten left the restaurant, William with a revolver part hand and a his handkerchief over the lower of saying, .his up.” face, entered the restaurant, “Stick ’em seriously, Tritsch, did seems, not take this said, ’’ way you going “If play, play are I can too. Gray then inflicting shot Tritsch the side, a wound Gray which Tritsch died 14th. November took money register out the cash and left the restaurant. evening He was arrested that the revolver in his pocket person. in cash on $86.25
Kinnamon had lived short at time in a tent Osage City, village eight City, miles east Jefferson occupation fishing. followed the days prior A few again day to, and on the afternoon of of the homicide, together camp he and had been seen at Kinnamon’s Osage City. City Kinnamon inwas Jefferson on the evening afternoon and of November 12th, was seen persons vicinity several in of the restaurant after morning following homicide. He was arrested City. Osage Gray, boy eighteen, came to Jeffer- City comparative son October, awas stran- ger. quote Kinnamon was little known. We from the Attorney-General: statement of the
“J. D. testified Ooffelt that he at 221 East resided City, Main Street, Jefferson and boarded Tritsch at the evening restaurant; that on just he had supper, eaten came out of the restaurant and started town; about one-half block from the restaurant talking together. men observed two One answered the name of and one answered to the name of Kin- OP MISSOURI. SUPREME COfURT got up namon. As lie feet within ten one said them, said, ‘That and the other, work,’ won’t other one got *6 ‘Work, Cod damn it, it’s to work.’ Q, “On this same said: cross-examination, witness Gray. one ‘It Q. Which said can’t be done?’ A. did What Why say? the other1man ‘It work? said, A. won’t Hie ’ got God damn it, Q>. Then did it’s what- work. say? get A. said,‘It He will us both in bad.’ The Wit ‘Gray something, ness: I didn’t hear said what was yaller and son said, Kinnamon, then he called a bitch.’ recognized Q.
“This further You testified: witness preliminary being morning them the two that as you night men saw A. sir. before? Yes, ‘‘ immediately This witness further testified that aft- hearing er this he went on to the sta- conversation fire which was about tion, five and when arrived blocks, he shooting. he there heard of the Osage living Kremer “John testified that he in City on November and had there for 12,1923, lived sever- years; prior days killing, ap- al that a few to the he saw pellant Gray together City. Osage and William in ‘I appellant Osage City morning met the next killing my boy and he to me, said “This took smoker up City pulled and there went Jefferson off eight or stunt.” He about made me statement morning.’ o’clock the next nine night “Witness Guental testified I am follows: as plant go duty watch at the sand o’clock on at five evening morning. in the and work until six o’clock in the plant about sand one north of block the Tritsch pistol kept a .25 restaurant. I had Colt’s I automatic plant. Ap- a drawer in desk the officeat the sand pellant Kinnamon had been in the office several times pistol lying and saw this on the desk. I Kinnamon saw day on about five o’clock the afternoon yards killing, about hundred from I work, where one plant police- saw him at the at seven o’clock when the slept plant there. He men were the office the sand TERM, Yol. APRIL 314] killing, night of the o’clock
until about twelve on going looked got up I home. then and said he day my midnight on the revolver about you A,’ gone. Exhibit I hand ‘State’s it was Q. you if looks plant that being to state ask revolver, Colt you in the sand revolver like the Colt it. like Yes, sir, office. A. looks “ father he and his that Geo. F. Wallau testified re- Colt plant. He identified sand owners in evi- introduced volver that was taken the revolver that it was dence at the trial and testified night plant. at the sand He further watch had night that he furnished this revolver testified that he knew the number it was watch and serial further revolver. He testified that had seen same appellant plant. around the sand *7 he, officers,
“Albert testified that with other Schatzer appel- appellant. some clothes found at arrested ‘We belonged Gray.’ camp Bill Brennan lant’s said that Gray the revolver testified that he took “William plant shot at and afterward office the sand anything Tritsch that Kinnamon with it. He denied had killing. Gray to do with the testified that he further was Osage camp City near about with Kinnamon his ten day on o’clock a. m. shot Tritsch.” I. Kinne It is since it is conceded that, insisted present th'ere homicide, at the is
mon was not support the verdict. evidence to substantial sufficientevidence say: counsel Learned tend- evidence that the sum total believe “We degree connect this defendant ing the remotest in days prior few That a follows: crime is as with was who Kinnamon, the defendant November City, Osage fishing with Wil- camping seen near was and City; Osage next Gray that, on in on the street liam morning, A. Kremer, said to John the defendant my up City, boy went Osage smoker and took ‘This pulled stunt;’ City that Kinnamon off a Jefferson SUPREME OF MISSOURI. COURT Kinnamon. night a friend of Guental, watchman at the sand plant, frequently visited there; that Kinna- City mon vicinity Jefferson of the plant at five sand o’clock in the afternoon of the said day again committed, crime was at seven and eight evening day; o’clock in the of that that, about six day, evening o’clock of said the witness Coffelt two whom he men, observed afterwards identified as engaged Kinnamon, on a conversation street cor- er near restaurant; the Tritsch said, ‘It won’t ” work,’ said, and that Kinnamon ‘It won’t work.’ strong true, It is as contended counsel, that sus- picion support guilt sufficientto conviction for appellant charged in accessory crime State. being weight an before fact. The and cred- jury, ibility of the for evidence is if there is sub- guilt, stantial evidence of whether there is sufficient guilt ques- evidence of submit case to the is a Frisby, 3.] tion [State of law the court. 204 S. W. In that case the conviction was reversed because the rec- solely ord showed the defendant “was convicted upon hearsay evidence of divers witnesses who told alleged accomplice what her had related in certain con- upon preliminary hearing fessions had sworn his justice peace.” before a just Here there is substantial evidence that fewa minutes before Tritsch was shot down in restaurant Gray, Gray William and Kinnamon were seen within engaged half a block of the restaurant earnest con- day, pay versation. This was and was well known *8 kept days money that Tritsch in his restaurant on such to which cash boarders’ checks. In that con- ‘‘ ’’ Gray versation It can’t be work. said, done; that won’t Why, “It said, it, Kinnamon work? God damn won’t got Gray get it’s to “It will us said, work.” both bad.” Gray The witness did not hear what further said, ‘‘ ’’ s— o— n b—. yaller Gray Kinnamon called urged Gray to The evidence is clear that Kinnamon Gray’s opinion get do act that in “would both us some Yol. APRIL 314] 671 TERM,
State Y. Kinnamon. Gray and that once bad,” went into the restaurant money Tritsch shot down stole from register Osage City. Gray cash fled towards That prompted, goaded was incited and even into the commis felony by robbery sion mo of this Kinnamon with for the -finding tive, is a fact which warranted in the evidence. The facts and circumstances evi strongly prove conspiracy dence tended between necessary and Kinnamon. It is true was to show that it prima-facie conspiracy showing that a existed, but a sufficient. Thereafter the existence of actual jury. such is for the consideration of the may positive That no direct was or evidence indispensable. proof be A con but direct true, spiracy may by alone be evidence shown circumstantial great reception latitude and in the evidence such 702, 728, 201 Mo. 100 S. W. [State Roberts, allowed. v. 236 302, 84; Kolafa, 340, 347, 291 Mo. W. cited.] usually makes “The crime
cases nature of the Corpus susceptible other proof.” 634, Juris, See citing, 568, Fed. States, v. United alia, inter Radin upon go “Conspirators out do not it is said: where They public proclaim highways their intentions. purpose methods sinister accomplish dark and their ’’ cited judged by cases See other acts. be their must prop the evidence 49. The demurrer Note erly overruled. the State witness was offered
II. as questioned; His'competency is not as a witness the trial. 273 Mo. Hill, [Sec. R. S. erred court 58.] that the however, insisted, It is S. W. testify conspirator, alleged permitting Gray, him, done made and acts as to declarations accomplished, alleged conspiracy
purpose had been attorney said ask prosecuting permitting the and in pleaded he time if had not at the witness certain made information charge contained in connecting defendant and declarations statements charged. with the crime *9 SUPREME OF MISSOURI. COURT support not The record does these contentions. Cray unwilling trial court ruled that an
learned was wit prosecuting attorney might that the ness and ex cross rulingthat amine him. There was no error in was a so largely matter the discretion of within the court. that he testified stole the revolver from the sand house p. day about four on the he shot that he Tritsch; m. up” “stuck the restaurant Tritsch about six- and shot p. thirty register, m. and robbed cash and then went Osage City.; down track that he railroad toward pistol pocket; money had the he was that arrested the entrance to the railroad tunnel four miles City, pistol east of money Jefferson were taken from him that he taken was back to Jefferson City. He plea was if at asked the time he entered his gave he gun. said that Kinnamon him the This objected was to as imonaterial and the say answered. The witness was if he asked did not also time that he that and Kinnamon both talked about‘‘ stick ing up” together. it expressly This the witness denied. He that testified Kinnamon did not tell him what to do. testimony His tended to exonerate Kinnamon com plicity in the commission of the crime. While some of questions propounded objection to the witness were assigned by appellant, able for they the reason negative. answered testified to or no act statement tending made him after he shot Tritsch implicate connect or Kinnamon in the commission of the questions crime. The and answers were, therefore, harmless. [Kuenzel v. St. Louis, 278 Mo. 277, 282, 212 876.] S. W.
III. J. S. penitentiary, Crawford, warden of the was sworn as a witness for the if asked conversation with the witness then confined in penitentiary, partici- with reference to Kinnamon’s pation robbery in this which resulted in the of John objection Tritsch. improper An that this was and called hearsay evidence was the court. It is sustained APRIL 314] TERM, Yol. Pool. highly prejudicial. may
claimed It that this con- be attorney prosecuting was, ceded quóstion. asking been rebuked for should have But *10 objection the the court sustained and was not asked to nothing counsel, and could done more. rebuke have There complaint. in no merit the is Appellant complains prejudicial
IY. of of remarks argument attorney closing prosecuting in jury. not The of court was called attention it before in the for new trial and is not us for motion consideration. alleged all
We have considered errors discussed appellant. brief counsel in the filed learned carefully considered record We have read and appellant. prejudicial The error therein find no upon all on instructions ease was submitted necessary questions arising case for their in the of law judgment giving is, their verdict. information Hailey', concurs. C., affirmed. therefore, opinion by foregoing PER CURIAM:—The Higbee, is'adopted opinion All court. as the C., judges concur. Appellant. POOL, v. HERSCHEL
THE STATE May 28, Two, 1926. Division charging with assault Assault. An INFORMATION: information 1. language weapon, which deadly under the statute 1919), (Sec. R. sufficient. drawn Affidavit. is committed OF No No error VENUE: CHANGE 2. prejudice change application based’ denying venue on for a an conformity the statute judge, where no affidavits support 1919), 3973, 3993, p. filed are (Laws R. S. Secs. allegations. such (Laws -; the statute of Circuit. Under Other Counties mandatory, directory 206), affidavits are p. where which is 314 Mo.—43.