*1 (2d) 478. v. Claude 21, 1937. General, Boy Attorney McKittrick,. HornBostel, and James As- L. General, respondent. sistant Barton, Stephen amici curias. Wilkerson W. P.
BOHLING, appeals imposing C. Claude a sentence of death-for W. T. the-murder of Carlton. *2 870, 98
The instant 339 Mo. case and case of State v. the W. (2d) 572, of In ease the defend arose out the facts. each same change ant served notice and of venue based application filed an for a upon against prejudice the county of de the inhabitants of the the Ann., p. 3630, 1929, fendant. Sec. Mo. Stat. R. S. 3194.] [See by supporting application accompanied McGee’s affidavits. was five August 12, 1935, respective applica On the trial court overruled the changes venue; duly preserved tions for defendant the of and each issue for our review. facts and the Smith case are so in this rulings. position similar on the instant call for like issue as to by taken supplemental learned General brief in the his case, the his position instant ease is identical with in the Smith any grounds which case did point he not undertake to for sustain ing court; the trial for filed were it not an amicus curiae brief by represented counsel the State the trial court further dis only objec cussion of issue would with. dispensed be While the the interposed (abandoned tion of here) appli record below to McGee’s was (in cation prosecuting attorney the timeliness of his notice to the srifficient), curiae, Smith seizing upon the ease held counsel amicus affidavits, the of supporting first secured the five to contend it failed compel state facts to sufficient removal. If or more of a two supporting the five the affidavits stated facts sufficient authorize granting of a change (the of sufficiency venue of the facts stated in four of the unquestioned), application five affidavits was is ground not to denied on the facts be the affidavits failed to state (counsel curiae questioned amicus admit even the affidavit stated facts), facts; or one of the the affidavits failed to state sufficient reception application sup statute authorizes proof the of when the ported by or, affidavits, alleged two appli sufficient if the facts knowledge judge, cation are within removal the of the trial court or proof filing affidavits; without formal re supporting or the of the resting moval under such circumstances the exercise of a sound Goddard, discretion. 3630, supra; Sec. [Consult Liston, 48 S. W. State v. Mo. 780, 782(2);
1229 (2), (2d) Pierson, Mo. may 642 (1,2), the not commend 121(2).] models; they Reading instant affidavits facts. as but do state the questioned affidavit as a whole—the statement of facts therein well as only legitimate as the stated conclusions—the inference drawn to be conversations therein therefrom is that the mentioned the were to not, guilty punished, be effect McGee was and should as counsel might been, was possibly curiae state that amicus expressly innocent, such facts. etc. The other affidavits stated Under made, rule, case, Smith record as we ruled defendant’s we n Faced granted.
application change been for a should have of venue grave responsibility with momentous solemn affidavits liberty, counsel, preparation Client’s assiduously venue, supporting change applications should for a n inadvertence; may tendeavor to eliminate issues that arise affidavits, which, we think accompanying when we read' situation in the instant ease. detailing Appellant it was admit contends error to Floyd Smith, at the scene coconspirator, the acts and statements of wounding of subsequent the mortal deceased the homicide Schaeffer, citing, scene; departure appellant from the 518, 520, applied settled 335, 344, W. which well 72 S. general by conspirator are rule that narratives of a transaction one coconspirators. distinguish clearly inadmissible facts estab instant issue from that of Schaeffer case. The evidence *3 others, lished: information the Carltons having McGee and hand, con money kept had cash and Mrs. Carlton considerable on spired armed, rob the Carlton They, Carltons. motored to evening question and, ascertaining was at home on the in no one home, engaged in burglarizing place and McGee were —Smith house, keeping the auto another stationed as lookout another and McGee mobile in readiness—when returned. Smith and the Carltons ready Carltons, presence made to rob the who became aware of the Shooting intruders. when Mr. house. started Carlton entered the gun “jammed” and he ran because “he didn’t any more;” chance departed and the lookout and driver Carlton, daughter neighbor captured the scene. Smith Mrs. her and a down; scene, or two who to the had them ascertain Carlton came proceeded Carlton, insisting money to rob Mrs. than she had more up, automobile, finally departed was delivered and in the Carlton instructing sight. Mr. captives not until to move he was out Carlton about after him. died fifteen minutes his wife reached We testimony competent think several reasons. Smith did What .for statements of past and the he made were not events. Smith narratives shooting coprincipals were Carlton. Section (Mo. Ann., “every p. 2778), Stat. makes Revised Statutes perpetration any . . homicide . . committed . . [of] robbery, burglary . . . degree.” . . murder the first [or] perpetrated tended establish This homicide burglary robbery. shooting of a commission Carlton was although incident, paramount offense, it became the an of the robbery; acts and burglary and the statements of McGee’s co-' conspiracy, although of the furtherance conspirators made in evidence. need presence, were admissible not discuss admissibility. Ptatt, reasons for its possible [Consult: Reich, 293 Mo. 566, 567 (4) ; 566, 572 (4), 26 S. W. Wall, 415, 424 (6), 1319; 661-663, 36, 39 (6); J., pp. 96 W. 16 C. secs. S. laws (Mo.), 114(11-13.)]
see State v. Strait also of crime and impartial accused a fair and' trial to one vouchsafe an un victim of citizens, law-abiding personified accord instigate unlawful act, protection that offenders lawful like not of the property escape attacks therein. of their bedfellows bed make or the acts Cooley and remanded. cause is reversed and'the Westhues, CC., concur. by Bohling, C., adopt- foregoing opinion
PER CURIAM: The judges All the concur. of the court. opinion as the ed 480. (2d)W. McGee, v. Thomas 1937. *4 appellant. P. Smith for B.