*1 Londe, Appellant. 501. v. Isadore The State Two, Ocober 1939. Division *2 Hough Sigmund
William J. appellant. M. Bass for *3 Roy McKittrick, Attorney General, Hyder and Robert L. re- for spondent. charged, and convicted tried
BOHLING, Londe C. Isadore 4424, R. S. City bombing’in of St. Louis. of the offense of [Sec. twenty-five He was sentenced Ann., p. Mo. Stat. 3043.] years’ appealed. He imprisonment. change of venue. the refusal a predicated Error is I. to, change from the of venue petition, a. sworn for Appellant’s cannot have City alleges that “he of the of St. Louis Circuit Court Eighth City inor a fair trial” in the of St. Louis impartial City of St. of the entire “because the inhabitants Judicial Circuit him, against the defend prejudiced and said circuit “are so Louis” City” by had him in ant, impartial trial cannot be a fair and nothing judicial affidavits add supporting or said circuit. The two petition petition. contends said allegations in the The State facts, and are insuffi supporting conclusions, not affidavits state Ann., p. 3194; Mo. cient. R. S. Consult: Section Stat. 2683; Ann., Hancock, p. R. S. Mo. Stat. Sec. 254, 256(II), State v. London (2d) [4, 5]; Broadly: “Pleadings are dis (Mo.), 917[6]. tinguishable under from affidavits in that affidavits must state facts allegations oath, may of conclusions of pleadings whereas contain may necessary.” C. fact, pleading and verification [2 S., p. 924, (2d).] J. sec. 1 prior negro A
b. On short time trial the merits: State, Baker, assaulted St. name L. witness Lee City *4 of St. County newspapers Louis and shot of the twice. re published covering and Louis articles the occurrence articles ferring appellant public well calculated to sentiment to arouse Meyers against appellant. Appellant’s-brief upon relies v. Cad walader, 36; Ogden, 371, 373, 49 Fed. v. 105 Fed. United States (2d) 254, 256, Montgomery, v. 42 Fed. eases United States during publications, jurors, progress wherein accessible to the a of a trial were of nature as to have an influence considered such They holdings, upon jury. this Our mentioned are not case. infra, in certain trial courts over disclose wide discretion vested testimony. Appellant this factual issue. We shall detail Practically all offered nine witnesses the issue. of approximately subsequent referred to the witnesses occurred to the discussions by ap upon Baker. Of the nine called the assault witness witnesses another, pellant, discussed; reporter had case one never heard the discussed, although one he had heard it had papers, for formed another, reporter assigned investigate to opinion; the Baker Sikeston, assault, Missouri, around had heard the ease discussed City County, and also in the of Louis. He around Louis St. esti St. many fifty half them people,
mated bad talked witb as of thought appellant guilty, but on it was ascer cross-examination city he in the Louis people tained had talked to about twelve of St. they possibly appellant four or five of them had stated believed
guilty. opinion. He stated he had formed no Three or four wit they twenty-five fifty per nesses estimated had talked to between expressed sons who had an opinion appellant’s guilt, and others only Among persons had tallied to three or four. thus established shooting police have discussed the Baker or the instant were case officers, deputy sheriffs, newspaper reporters who were more or professionally interested, less people. and colored called State testimony, they seven witnesses. Their up, summed was to the effect guilt they had not appellant’s discussed; heard or innocence had persons guilty heard it discussed and opinion some were they and others innocent; that he was and that had not formed an opinioii appellant’s guilt as to innocence. or One stated he did not city know what 800,000. case was about. St. Louis is a of over The record does not establish that trial court abused the dis give cretion vested it and if we consideration to voir dire ex amination of the disqualifying veniremen-—-the court was liberal in large for they number of veniremen cause who stated had formed opinion, being appellant some reach favorable the same —we Barrington (Banc), result. (III), 198 Mo. 95 S. [State 235, 254(3); Rasco, 535, 549(1), 239 Mo. 144 S. W.
453(1); Hudspeth, 12, 22(II), 483, 484(2); 150 Mo. Dyer, (II), 769(2).] Appellant
II. space qualification devotes of individual veniremen.
a. A number portion had read some or the headlines or a of some newspaper concerning upon articles the assault witness Baker referring or articles appellant, they opin stated had formed an reading. ion from their Appellant’s broad contention that the court disqualifying erred in not for merely cause veniremen on ac impression count of their opinion or finds no support existing in the Missouri against law and is ruled appellant. We have said that a venireman who an impression opinion, has formed or which will re quire testimony remove, guilt as to the or innocence of an ac cused from newspaper both, rumors or reports, disqualified is not if satisfactorily cause his voir dire examination discloses he can *5 and will render a verdict on the law and the evidence free prej from udice and 3671, R. 1929, bias. Ann., S. Mo. Stat. p. 3221; [Sec. (Banc), 270, State v. Walton 274-284, reviewing 74 Mo. authorities; (Banc), 491, State v. Core 70 492(1); Poor, Mo. State v. 286 Mo.
644, 655(III), 228 810, reviewing S. W. cases; State v. 814[5],
190 v. citing cases; State 266, (2d)W. Wampler 58 S. (Mo.), 268[4], 810, (2d)W. 68 S. (Mo.), Stanton 813[8].] ap permit the court refused interposed, Upon objections b. formed thus who had veniremen inquire of several pellant required to not opinion whether or evidence'would impression or alleges appellant’s and brief opinion, impression remove that such to make ground appellant was entitled error therefor on Ap challenges. exercising peremptory his inquiry preparatory 1066, [5], S. McKeever, 339 Mo. 1077 pellant cites (2d)W. Goffstein, 499, 509, 116 S. 342 Mo. (2d) 22, v. 27 State [6]; holding eases, The supra. Wampler and Stanton 70[9], McKeever indicated above. in the and Stanton cases is Wampler involved, general observa far here contain cases so as Goffstein on limits, liberal is allowed that, reasonable latitude tions within challenge favor. purpose voir examination for the dire v. They We are mindful of State do not rule the instant issue. King, 174 Mo. (Banc), 595-599; Mann Mo. 83 207 655-659, (Mo.), v. Miller 627, 629, 630; W. and State 74 S. record, against, but, issue 798 on the instant rule the [1, 2] appellant; because: The,voir appel- veniremen answered 1. dire examination of said Giving scope, it embraces inquiry. appellant’s point lant’s its widest Orthwein, Parrish, the examination of veniremen Adams Schmidt. has opinion” and, course, point Parrish “no had formed respect factual venireman. stated foundation with to said Orthwein naturally opinion that one an article from read- reading formed some ing it, opinion that he had would not color his verdict. but such as presumed appellant each that he Orthwein and Schmidt stated severally proved guilty. be innocent until and Schmidt stated Adams opinion necessarily opinion, that such each not a fixed had was court, and each, questioning under could hear stated he solely evidence and the instructions of the court base his verdict upon solely so, opinion law. upon that evidence and If such required as each of said veniremen had was character that testimony to it. remove assigned ground alleged
2. mo appellant’s for the error in leg tion for new trial was each of said veniremen “should have ally challenged been disqualified for cause the court because ” indicated, opinion. (This, of his appears so far as to have been appellant’s theory pending dire the voir examination. Consult State McCord, 245(I), 886 [2]; Collins, (I), 516, 518[1].) The issue presented thus presented is not appellant’s issue brief. As pointed above, assignment appellant’s motion for new trial is not sustainable. For the trial reasofi court was not called upon to presented appellant’s brief, review its action issue
191 holdings only (not appellant’s issues in brief our presented by appellant’s trial) properly motion for are not being covered new ground our preserved appellate review afford- an additional for 3735, R. 1929, Ann., p. 3275; State v. conclusion. S. Mo. Stat. [Sec.
Rogers (Mo.), 566, (2d) 568[4]; Williams, 102 W. 335 S.
Mo. Mo. 336 3. Other 1082, 234, 362, 237 1103 reasons 375[4], 377[6], [1], (XV), 71 may 83 W. S. exist. For instance. (2d) 732, 80 W. S. (2d) 98, (2d) 733 111[50] [1] ; If the State State 873[9, ; 11].] McGee, Barbata, peremp 336 torily challenged questioned appellant was not veniremen required any striking to peremptory challenges exhause of his in list; said veniremen from jury prejudiced by appellant was ruling, court’s if legal proof error? There is in the instant showing record challenge peremptorily State did not said veniremen or that appellant required any exhaust of his was peremptory challenges removing trial said veniremen from jury. Davis, (II), See remarks in State v. 237 Mo. 240 140 902,W. Nevils, S. (III), 330 Mo. 904[3] (2d) 47, 50[3]; Wells, Parlon v. 1001, 1012, 528, 533[3]. charge against that, appellant did was on June he bomb,
. . set and exploded charged cause to be a certain with explosives, the construction and make and contents of which "said grand bomb is to these jurors unknown, in the entrance to a certain building Avenue, located at No. 2600 Franklin did then and thereby there and cause a person, to-wit, Otis placed Gordon danger of injury . .” . bodily
To establish charge, this might differently which well have been phrased, the State testimony following adduced effect: garment Howard Cleaners, cleaners, place had a of business at No. 2600 Avenue, City is, Franklin St. Louis at the south- —that west corner of Franklin Twenty-six-hundred and Jefferson Avenues.
and 2602 Franklin parts Avenue are building. The Acme same Mutual Insurance Company floor, upstairs, had leased the second of 2602 Franklin Avenue. Gordon, employee Otis of said insur- ance company, permitted and, 2nd, occupied on said June portion west upstairs sleeping the front room quarters. Appellant was the owner of a sedan, 1937 Buiek black or blue-black in color with white side wall tag tires and license He No. 625-643. kept this at the garage, Enright automobile Donaldson Court Avenue. About 5:30 a. m. appellant June au- took his tomobile from garage. Lee L. Baker testified that he arrived at the northwest corner of the intersection of Franklin and Jefferson Avenues between 5 way :30 and 5:45 2, 1938, a. m. on June on his work; that a black sedan with white occupied side wall tires suits, two men light colored up drove and came to a sudden of the How- in front said intersection comer of southwest stop at by detectives thought occupied ear cleaners; that witness ard driving, got appellant, who was stopped; *7 lid, got trunk “some- raised back, the automobile, went the the the automo- the front of around to trunk, walked
thing” out of the automobile; that witness the leaned over into bile, and stopped automobile; appellant that coming the up in a smoke then little saw cleaners, got back door the Howard the of “it” toward then threw moving departed, rapidly automobile and the into automobile the later corner; about two minutes turning and that the next and at by large of black occurred, accompanied a volume explosion the “cruising Powell, Greenspan, and Wilder were Police smoke. officers testimony that city.” Greenspan’s Wilder’s was between the and they vicinity in of St. 5:45 M. June were 5:30 and A. they Streets; a 1937 blue-black Buick and Twentieth that saw Charles 625-643, tag occupied No. wall tires and license with white side sedan shortly light hats; by wearing colored and straw men clothes two they police car Franklin Avenue approached and thereafter as explosion about and arrived the scene of the explosion heard an at they falling; dust When debris was still a minute later. arrived glass building, walks, on and inside on both side were scattered corner, running parked of at and top and boards taxicabs streets; had been out in the door of the Howard cleaners “blown both ’’ in, directly glass in an over the entrance to the Howard and was office building an glass upstairs and a of window of a bank cleaners across floor the Howard cleaners’ the street. The tile of entrance they diameter; had a hole in ten inches in it of between and twelve powder. operators smelled the odor of black One of the taxi testi- shaking fied Appellant’s the noise and of taxi awakened him. his garage automobile was not returned to the Donaldson Court until day placed June on which he was under arrest endeavoring officers who been him in had to locate the meantime. Appellant offered no in witness his behalf. sufficiency Appellant questions
III. of evidence stat testimony ing establishing (a) explo there was no substantial distinguished charged a sion of bomb as from some with other device powder explosive (b) or and placing other of Otis Gordon danger bodily injury distinguished possibility of as from the might placed danger bodily injury. have been of
a. Appellant insists that to determine what a constitutes “bomb” under the Missouri law must an page we refer to Laws act making an possession, it etc., offense have of a “bomb or bomb- enacting shell” that said terms “. . held mean . shall be any object containing dynamite any or explosive device or or other highly fuse, combustible or substance chemical with a connected whereby explosive such or substance device dynamite cap or other may ignited or ex- or chemical be substance highly or combustible bodily injury persons, or death to or causing capable ploded, . . .” The evidence estab- to property damage or destruction exploded object was, it and caused or the device whatever lished that its a purposes, makes Law of property. Said damage to “object” speci- the nature there an “device” “bomb” testimony or appellant set There was substantial identical. fied object containing an bomb, device, or a or exploded to be caused explosive ignited fuse, whereby such connected with explosive point, presented, etc., within said definition. exploded, against appellant. is ruled Ann,, 3043), (Mo. p. Stat. 4424, Revised Statutes
Section . . ... or causes to explode shall . provides that “whoever charged powder device with other any bomb or other exploded be danger bodily any may explosive, whereby person put is or *8 guilty bombing ., of . . .” The injury . . be deemed shall military to its employed, is to be restricted term as there “bomb” by dropped significance; a mortar or from such as missiles thrown “Any larger are: aircraft, grenades. or Broader definitions hand or device; dynamite bomb.” New In- as, similar missile or a [Webster’s Dictionary, Dictionary, 2nd See New Standard ternational Ed. also Century Dictionary Cyclopedia, “A hol- Ed.; 1936 1911 Ed.] explosive box, shell, gunpowder, with or other low basket or filled , . by a or other device . . term is set off means of time-fuse by contrived applied designate to the infernal machines common also property.” of accomplish criminals to murder destruction [The Encyclopedia Americana, political upheavals have 1936 “Modern Ed.] packages explosives, a in which have been christened induced traffic of Dictionary, Encyclopedia 1895 From bombs.” American Ed.] [The the appellant that leaned over into auto- witness Baker’s narrative may smoke, it inferred and the then saw some be that mobile witness testimony they appellant ignited fuse; a. that and from officers’ may gunpowder powder inferred con- detected the odor of it be ingredient stituted, part, explosive in of the substance. Measured by definitions, testimony, believed, if the broader warranted finding had a “something” appellant that the threw fuse connected package. explosive with some of container or substances within sort explosion asleep At of the was on the b. the time Otis Gordon building second floor of the about two feet from the west and six from the is 2602 Franklin Avenue. feet north wall over what known as testified, speaking upstairs, that 2600 and 2602 Franklin He connected; regular partition, plas- were that there Avenue connecting wall, doorways; with awakened him tered that the noise glass falling investigate; get up he heard did not but things him, thought not to tried let excite and that he there had 194 sleep. Stressing- his an automobile accident and went back to
been showing- testimony argues was no appellant there substantial danger bodily injury. Only put in two witnesses Otis Gordon briefly) damage (each to narrate the extent of the to the undertook State, building. however, photographs offered in evidence two H) by correctly (Exhibits identified different witnesses as G disclosing building appearance from Franklin —-one and the other from the Avenue side—after the Avenue Jefferson explosion. were to the photographs submitted triers of facts These They may preserved presented below but are not in record here. verdict, very bringing about With have been instrumental us, position all the are in evidence on the issue before we no jury upon probative hold the did not base its conclusions substantial Shepard, (2d) 91, evidence. 427 [2], [State Ross, (Banc), 423; Fritterer 93[3, Mo. 4] (2d) 293, Our narrative of 295[9].] testimony doing explosion oral discloses a severe substantial damage building. “Danger” generic term, including ais peril, jeopardy, risk; -hazard and as used the statute refers exposure liability injury. The extent of the destruction to building, doubt, by the throwing appellant’s haphazard was influenced stopping
of the bomb and its fortuitous A few place. inches way may one or the other have effected a vast in its de difference building’s struction of the structural work. The should de issue alone, termined not from results but should also embrace manner, method and employed. means Appellant’s
IV. motion for coinplains separate new trial paragraphs specified appel the refusal of instructions offered *9 alleging, instance, ground lant in each as therefor: “. . . for the that jury reason said instruction advises the of material matters necessary of law jury’s information, for the and is an instruction pertinent the issues and facts in to. the case to which the defendant is entitled under the law and the in evidence case.” the These assignments merety general state the specified conclusion that the in struction proper was a instruction and that the court erred in re fusing They it. do not set forth in detail and particularity with the specified ground required by for error as Section Revised Stat (Mo. Ann., 1929 p. 3275); utes Stat. position and the State’s that assignments comply and, therefore, do not with said section failed to Reagan (Mo.), preserve any 909, 915, Kelly (Mo.), 434[VII], issue 85 S. 107 S. W. S. W. appellate (2d) 391, (2d) 1, (2d) (2d) 19, review is well taken. 6 [8] 395[6] 880[9].] ; and, 21[7] ; ; by Sinovich, State v. way of Ward, [State analogy, 337 v. closing argument Appellant V. attacks tbe of the State’s attorney. generally He us to certain Missouri cases without refers of the cases issues not developing applicability. their Some rule by presented the record. instant
Appellant’s that to than Gordon complaint others Otis reference being vicinity jury they in the of led explosion the the to believe might they danger put convict if found that had been in of others bodily injury finding of an factual irrespective affirmative on the danger against jury ap issue of to Gordon the prejudiced Otis by pellant, is not the the supported record. court and State’s attorney specifically jury to be told the that conviction was had only upon finding put danger. This, that was in in Otis Gordon quote addition to explicit the directions in the instructions. We one Jury: consider, instance: “The Gentlemen the You will Court. of to' point endangering someone, the of of question the life the of injury or the life of one Otis Gordon and not someone else.” testimony operators established that two taxi in their cabs at were curb, the shaking were awakened the of the explosion, noise the shattering glass of their cabs and of on the running cabs and boards; proceeding along and that a woman was at sidewalk just immediately prior of the explosion. the time Eeference being vicinity to others in gestae-, was within res and cases prosecutor goes wherein the controlling. outside evidence are Further, of the record face discloses statements ob jected reply arguments to were in direct advanced behalf appellant, legitimate argument reply and we have ruled is not improper. Reagan (Mo.), (2d) 391, 108 S. W. 397[18, [State 19] (Mo.), 1083[4]; State v. Smith Lynn (Mo.), 141 We take the specific most instance [1-4].] Hough you of record. “Mr. asks to consider Mr. as a Londe human being. anybody bomb, gentle Did he he consider when threw that Did cleaning company? consider that aside. Leave men? Did beings? he consider human Did he consider those colored people in neighborhood? consider Did he Otis and the Gordon taxicab drivers? Did he consider woman This there?” argument rebut on behalf appellant; jury and a of rea it, men would so construe especially sonable is this true with the attorneys informing finding court and the them that Otis Gordon put in danger was essential to a conviction. remaining Appellant’s complaint attacks a statement made con- community good clusion: is a say “St. Louis which I to live and you eyes community, only community, of this *10 this but away maybe State of and that, Missouri farther than you country, tonight.” whole are on . The Court appel- sustained objection disregard lant’s directed the jury and the statement but refused to a mistrial reprimand Speaking declare counsel. a 111, 480, 147 S. W. Dipley, 242 Mo. v. remark, State similar jury- to the appeal rhetorical it as “a mere characterized 117[22], cases;” and said: criminal trial of commonly made is
such as tion App. Strait error.” We think “'Without hesitancy [that 373, 376, 35 W. (Mo.), prosecutor passing upon 279 S. holding stay (2d) 969, 971 ruling applicable within the question 114[16-18] remark [12] record] as to did not constitute ; State v. here. Consult whether deserved, we have Frost Coffee, 225 Mo. such admoni (Mo.), 289 reversible State v. 897[3].] our proper and the record question does not Appellant’s brief opinion was error. This reversible thereof has not disclosed review Judges and several Commissioners passed written judg- day to affirm ago. this filed motion days Appellant has mo- opinion, and also stated in the ment. For the reasons CC., Cooley Westimes, concur. tion, judgment is affirmed. by Bohling, C., adopted is foregoing opinion PER CURIAM: The judges opinion court. All the concur. as the L. Executrix of the Estate Yeats, Yeats, Rhoda Edward C. Ralph Dodson, Attorneys in Fact for Sub Bruce Dodson Reciprocal Casualty Represent scribers to Exchange, Casualty Reciprocal ing Exchange, all of the Subscribers to said Association, Unincorporated Appellants. ange, Exch 652. One,
Division November 1939.* Opinion Term, September April 1939; *NOTE: filed at mo- rehearing filed; tion for and to to Court en transfer Banc motion overruled May May Term, 1939, 2, 1939; filed; modify, at opinion motion to motion overruled; opinion opinion modified on motion Sep- Court’s own filed at Term, 1939, tember November 1939.