*1 conflicting testimony right from the bad to draw this conclusion express argument. and to it in ground
Appellant’s sought trial on motion further a new assignment newly go this discovered evidence. We need into since case to be for a new trial. remanded given judgment
For the are reversed reasons and sentence the cause remanded. All concur. (2d) 98. v. Walter H. Appellant.
The State McGee, April 25, Two, 1935. Division *3 Kwight appellant. James M. Bader and Lillie *4 General, Attorney and Frank Boy McKittrick, H. Assist- Hayes, Attorney respondent. General, ant
10.86 *5 BOHLING, C. Walter McGee guilty kidnaping H. was found Mary McElroy jury' for ransom. The his verdict of the assessed punishment judgment death. appeals at from thereon. He Henry
The McElroy Judge members household consisted of McElroy, daughter Henry F. Mary, Jr., his son and the F., housekeeper family (cid:127)They Heda Christensen. at the home resided May in Kansas City, County, Jackson Missouri. about On daughter eleven housekeeper o’clock in the forenoon, at daughter bathing alone a home, bathroom on the second floor of the The open residence. front door was but screen was locked. Answering doorbell, housekeeper informed (she man at the door identified him as trial) at the package McElroy. that he had a Miss There parked residence, man, an-automobile front another Stevens, later housekeeper identified as Clarence wheel. conveyed message McElroy, accept to Miss who refused to - package. Upon being McElroy accept informed Miss would not package, appellant gun and, took from a underneath his coat threatening through to shoot the door he opened, unless was ’ Stevens, flourishing guns, Inquiring each entered the house. a’sto Whowas McElroy, home and the Miss house whereabouts of keeper bathing. housekeeрer informed them she They told the they were kidnapers, wanted Miss' house forced the McElroy,’ keeper to accompany :them upstairs. hearing McElroy, Miss' Commotion the‘approach jumped of man’s footsteps, out *6 just as locking door and succeeded bathroom bathtub
tbe threat appellant Stevens knob. After and hold of the someone took ob McElroy a robe was through kill Miss door and ened to shoot was informed she McElroy came was Miss out. She and tained and (appellant kidnaped ransom, permitted was to dress being for room), ordered doors her and guarding the two Stevens be compelled floor to lie on the waiting automobile, she was where her. a blanket over front and rear with seats, tween the spokes- McElroy dressing, appellant, who acted as Miss While Judge Mc- inform housekeeper to instructed the throughout, man police out of $60,000 keep press and Elrоy they wanted “Mary.” $100,000 and would not return they or would demand identify them. any attempt made to death if be He also threatened Judge the automo- as soon as McElroy of the events was informed arrange- made immediately, proceeding home departed, and, bile any delivery necessary and the immediate ments for the funds mail him. addressed to McElroy twenty Miss was taken traveling
After minutes about small fruit cellar located from a the automobile and confined Shawnee, Kansas. This house basement of near a house former wife occupied by Cates, Click and Lucille Clarence left McElroy’s placed Miss appellant. Here a handcuff was ring an iron wrist, and, by chain, a was made fast to means of short Soon cellar. thereafter thumb from the wall of the fruit protruding and, us- McElroy pieces paper, three prints of Miss were taken on Mc- Miss ing sheet, аppellant first instructed one of these for the kidnaped Elroy advising him had been father, write her that she ransom; being $60,000 re- if the matter was and was held for that $100,- be police newspapers the demand would ported to the killed; thumb 000 and be that letter without her she would currency, money counterfeit; be that should be prints would that, twenty bills; ten five twenty, each in dollar thousand Henry money her and her brother would if the father marked, McElroy killed; hear further. Miss be and that he would wrote letter, using Mc- Appellant her words as instructed. told Miss own Elroy gang twelve; they planned he was the leader a that him; they had kidnap her brother but were unable locate might avenge any gang caught, an taken oath to be who get although they might get gang, they never some of the would Mc- all had Miss five-thirty appellant of them. About and Stevens her Elroy letter, instructing her to write second tell morning they get touсh father be home the would next currency; him; they have that when he should used called alone, again him to meet them he should car and to in- come given story they if the police press form her father would During McElroy’s all bd she killed. Miss confinement was under guard practically time, George acting. all the McGee so Her one captors weapons were armed their in her presence, and exhibited including they gun. what said was a machine
Judge McElroy daughter’s received his first seven- letter about *7 thirty evening in the the later. second about two hours About and nine telephone o’clock the call. next he received the first morning, kidnapers ransom, conversation related the to amount of $60,000 asking Judge arrange- McElroy and stating he make could $30,000. ments for their terms if He was informed he must meet expected he daughter again. A telephone to sеe his second con- place resulting versation took ing o’clock, eleven in an understand- about $30,000 paid McElroy’s A was to release. third be for Miss (cid:127)telephone McElroy call Judge o’clock, came about one in which go instructions; was instructed certain to a mail box further and, upon Judge McElroy’s permitted to ac- request, his son was- company Judge McElroy $30,000 taking him. his son, and with them currency, composed $25,000 $100, $50, $10 $5 and $20, bills, $1,000 directed, and five bills, the mail box and drove following after typewritten places, received different instructions at finally parked just on Road, City, Munice out of Kansas Kansas. McElroy again In meantime, appellant and Stevens had Miss informing they agreed accept $30,000 write her father, her had instructing and money her tell her if be father marked or the story given press police they all killed. would be
Judge McElroy’s had only car been or thrеe minutes parked two appellant Judge when up. Appellant and Stevens drove came to MeElroy’s (son’s) car side, part on the driver’s his face lower dropped covered with a handkerchief. handkerchief down soon This appellant Judge McElroy and put up. Appellant did not handed daughter’s bearing his letter, third After some print. her thumb $1,000 concerning calling discussion bills, appellant Stevens to car, guns, money accepted. Appellant and Stevens had Judge McElroy and was warned, he had been in letters and tele- give phone conversations, newspapers not to the matter or the police; they gang were a number of men in the and there and, although might get them, long plenty weapons, they so some avenged by killing as one living, remained his en- the others would be family. tire afternoon, appellant
About three o’clock thаt informed Miss Mc- Elroy blindfolded, placed she to be released. on the She traveling floor of seats, and, an between the after automobile, minutes, about ten released near the Milburn Golf Club house. everyone to appellant
Lucille Cates testified that instructed wear glasses they smoked when to the basement and stated that went n they ransom; holding McElroy girl in the basement for McGee; that, just only George that she went to the basement but saw o’clock, afternoon about three left in the appellant and Stevens
before among things, the feet observed, other she in the looked basement Click woman; appellant, Stevens, hem the skirt company was while present at house George McGee were currency the $1,000 in gave ; and that her the basement day girl was released. At Texas. Amarillo, 2, 1933, appellant was arrested
On June apрroximately arrest, appellant possession had in his the time ‘of weapons. $9,000 currency, several Appellant offered no evidence. in the will mentioned pertinent facts,
Other the issues raised, opinion. course of the jurors. action assignments .Several of error
I. relate con pro and hearing for new trial evidence On the of the motion introduced these issues-. w.as Ann., (Mo. p. Stat. Section Revised- Statutes *8 . . . may sec grant a new trial 3272), provides: "The court court, ond, jury separated without the when the has been leave of guilty verdict, retiring has been upon to deliberate their after tending fair of prevent a and due consideration of misconduct to (Mo. . Stat. 3678, case. . .” Section Revised Statutes the 4021, "In Ann., 3226), 1925, 196, provides: p. Laws section page motion, re felony may, its or when cases trial court of own all the place defendаnt, quested by the for -the State or for the attorney competent to in trial of jurors .by to be sit the all found the court the an officer or officers of the court until custody the cause in the of challenges peremptory up have made and the panel entire shall been . . .” try jury made sworn to the cause. shall been and the have trial, permit is with discretion to the court vested Under this section cause; and jury try the jury separate the sworn the until objections notwithstanding of counsel a de held, have the we any showing capital case, prejudice in of of in the absence fendant a resulting challenges separation are panel the until the from the properly exercised made, we the court properly must assume that Sec 820, 821(5).] 300 S. W. (Mo.), its v. Fox discretion. [State (Mo. Ann., p. 3235), pro Stat. 3682, tion Revised Statutes attorney prosecuting "With of the de vidеs: the consent the adjourn may separate fendant, permit jury the 'the court felony, during in the trial all cases ment or recess of the court jurors the except capital Under this section cases.” their "may several homes or about disperse go to their ... 67 W. 380, 352, Shawley, 334 business.” 924(3), 47 W. Todd, 146 Mo. In 88.] box, challenges, entered the peremptory jury, trial after the the prior giving but to their the usual admonition court, upon and the. being try them, sworn to the ease, excused without consent of the d with, defendant, mingled many for about hours, they two an people objections of the rule, notwithstanding interposed town. The upon jury, return of an affirmative absence showing upon part jurors-, of the State that were not sub ject (which improper influence the cause remanded be would separation during jury has “reference to a progress ef before”) the trial, apрlicable. Orrick, and not held not 106 Mo. leading one (Secs. interpreting eases supra Sections 1879). R. S. The issue in the respectively, Orrick case re pending prior lated to the trial and misconduct deliberation. stating separation After Missouri had followed the that- the rule jury, a case, a criminal was not sufficient authorize a re judgment, versal of a appeared improper- unless influence had it exerted, just ground suspecting been there such influence (106 l. and, c. 125), applicable that now Section 3682, capital cases, declaratory law, common and the effect of separation upon a the verdict final submission of the before case to jury by (106 must be determined some reasonable rule Mo. l. 127), discussing (l. 128) c. the court, rules, the several c. : holds forbidding inasmuch “But, separation jurors, rule capital eases, statute; and, view, has been by too, declared changes other effected to, other sections referred we stringent feel the more applied, satisfied that rule should case 3682) requirements (now disregarded, of Section Sec. are separation jury upon and that before the retires to deliberate their grounds will be affirmatively verdict for a new unless be shown trial, jurors subject by the State that improper influence.” *9 alleged As the part jury misbehavior of on the the in the instant- prior upon case to occurred their retirement for deliberation their verdict, portion (Mo. that of Section Revised Statutes 1929 Ann., p. 3236), relating jury, Stat. the as isolation of well Asbury, cases like State v. and 919. , Hayes, 883, 886(2) S. (holding, under Sections 3683 and 3734, supra,.that “where the jurors separate, of permission court, by without the the unattended deliberate, any officer, -after cause been the has submitted to thеm to verdict, was upon opportunity where an afforded for outside or any “inquiry influences” sinister to whether outside forestalls. them, requiring sinister influences on was-asserted thus the courts to, do; govern.the grant trial”), presented defendant a new not issues - by' fall under record, 3682; the instant which -Sections 3678 and supra, decisions'applying interpreting and said : sections.. (a) During progress jurors the of the trial, some the cigars desired purchase accompanied to and one of the officers them quartered they cigar lobby where were to in the of the hotel the stand distance between others. The while another officer remained with the forty feet. jurors twenty-five from groups was estimated two desiring any purchases make charge group in The officer the time, At another jurors at all times. all within his view the families their jurors telephone the court some of the permitted the court. occurred instructions of clothing, etc. This under the the room a corner they telephoned was The room from which the twenty feet of jury box and courtroom, within feet of the five the room inside judge’s deputy A was stationed bench. sheriff deputy at telephoning another sheriff where the occurred and entering the room. prevent from others entrance the courtroom at telephone room one jurors enter the permitted The were anyone in within observation of a time. The occurrence jurors each instance the appears the courtroom. it that in As thus and custody supervision were at all and under the times separation court, an as the issue of a surveillance of officer of the and (State v. jury by reasonable rule of the is to be determined some jury as separation think such of the supra), there was no Orrick, we Shawley, prohibition of statutes. falls within the [See (2d) 74, 88(31).] 379(14), 380, 334 Mo. cigar jurors alleged at the in that while the were (b) Error A newspapers. party reading the two them were observed stand hearing of lobby hotel on the motion testified looking knowledge jurors were new trial that to his best two of they say papers cigar stand; that he could not down at on the it reading paper what issue of the paper; that he did not know juror any evidence of was; picked up paper. no charge newspaper no jury that there was officers of the trial, during cigar stand, juror, no time any newspaper. appears It permitted to read thus evidence, arbitrary hearing the act an manner after did not court, circumstances, stand; permitting and, the verdict under such fact, following rule with to matters a well-established reference 161(e), v. Taylor, will not interfere. 134 Mo. this court alleged separation “Relative to the 92, 105(12e), states: forming alleged jurors misconduct, previous and other enough say by them, expression opinions several of paragraph of this was examined the lower that the whole matter having upon pro con and that court ruled that court affidavits ruling with such stand, should we will interfere verdict upon grounds the most clear and reasons most manifest.” unless *10 43(3b) 127, ; 136 24 Howard, (3), 118 Mo. S. W. 41, State v. [See 464(34); 144 Rasco, 535, 587, 449, 239 Mo. S. W. v. State State ; 114 531 522, (4) 215 88 W. State v. Sebastian, (4), Mo. S. Cushen-
1093 berry, 157 Mo. 56 737, 743(6), Howell, S. 117 23 Mo. S. W.
(e) assigns Appellant deputy ground error on the sheriff the jurors telephoned should have families of the tele the such as used jurors phone telephone. permitting instead of In addition the incident, facts the heretofore set forth in with this connection testimony the well of, showed that the officer at the entrance as as inside, jurors; roоm officer could hear conversation of every very personal conversation was and related short matters, request clothing, They such as a not hear clean etc. did party juror assignment whom the talked. think ¥e not well among taken for several reasons, are: which,
First. The affirmatively record does not did appellant show that knowledge full have been of entire It held transaction. has showing essential an affirmative appellant made that an ignorant his counsel were part jurors misconduct on the until after the trial where presented such misconduct is in the motion first trial, for new is in the the situation instant case. State v. Bar rington, 198 “Upon 235, 257(6), Mo. S. W. this states: assignment of (misconduct jurors) error of one of will suffice it say knowledge the record fails to at what disclose time the of such complained misconduct appellant of came tо his counsel. urged by This appellant upon propo contention this fatal ours.) (Italics sition” Speaking of a remark made one panel peremptory challenges being while made and unknown until counsel after the State v. Burns, 47, 50, Mo. states: trial, “If himself, objec heard by defendant and constituted Taeke, tion guilty negligence then defendant was of inexcusable communicating steps counsel, proper fact to his so that could Trainer, be taken.” State v. Mo. 80 W. [See cited; Gilmore, and cases there 336 Mo. (2d) 431; 326, 337, State v. Richardson, Rasco, 449, 464(33, fully rule Seasons for the are stated in the 34).] cases cited knowledge referred to. The that the court of the incident fact duty did law timely not relieve under the make showing and proper objections, alleged or a that information of the acquired after trial misconduct first reason failure present duty respect, think, to earlier the issue. The in this we timely objections making is the same as for the exist saving evidence, timely exceptions to the admission or exclusion of giving or the of instructions. observations here made with necessity showing knowledge reference of a time when part jurors acquired by ap of misconduct on was first an pellant applicable case, to all such issues we instant *11 showing informa- any appellant’s as to
are unable find affirmative record, any before us. tion on issues the appellant, for jurors telephoning, counsel the Second. While were from prevented room, for it and was who left hat the came had hat counsel’s entering deputy entrance, secured by at the who the within occurrence was by testimony, the If, for him. the disclosed jurors were anyone courtroom, and the the the observation of deputy only time, the one at a outside pеrmitted to enter can suc be conversations, perceive do how able hear the we jurors first cessfully alleged of the this misconduct maintained that return knowledge for after the came the of counsel oc of the had information verdict into court. If counsel the delayed presenting verdict and prior the of the currence return trial, point the motion new filing the until the of the issue waived, supra; supra.] v. Gilmore, Rasco, considered [State jury were Upon court, the of the verdict into Third. the return the Although first request refusing, at polled appellant. at the among inquired jury, other court, request at of the appellant, the anyone case court- things, if them about outside the talked to juryroom hearing in the they room in case while were juror any Appellant, no. in deliberation at time. Each answered any requested having jury, absent contradic- the information of tory by testimony, should be bound the answers. On
(d) jury the second day. trial selected until admonitions, including giving day the first after the usual court, jury sepa newspapers, permitted instructions not to read assigns daily Appellant newspapers rate. error in that day city said first carried articles with headlines con issued on jury prejudiced cerning trial, reason thereof against jury prej appellant. Appellant also asserts against appellant by being permitted to hear news reason of udiced the hearing over the radio On of the motion for new trial flashes showing any juror any there was no read of the articles com of; jury plained and, evidence was that the trial the uncontroverted any any did not hear news flash over a time after their radio discharge. assignments prove until their As the selection do not they Yowell, are without mеrit. themselves [State might Other ad 722(8), reasons against assignments; such as that morn vanced appellant,,on ing day, .not, but have, inquiry of the second could did make array: complained of; concerning' matters no there is acquired showing appellant and his affirmative when counsel first n such, knowledge matters. necessity precautions part While we.need not stress the. prevent separation courts ;of courts and. officers or mis- part jurors, practice, possible, conduct on the the safer wherever jurors requests.in the court to have the make their would be for , carry request, if open court then" have some official out the possibility of prejudicial and avoid the error. proper, Malone, Mo. 594, 602,609, although disapproving telephone passing a brief conversation off ón *12 issue; (2d) v. 334 67 352, 378, another and State Mo. S. W. Shawley, discussing jurors 87, numerous 74, actions of delibera their during upon tion their verdict.] assignment Appellant’s challenging jurors
II.
array
account
affiliations is without merit for a number
political
on
challenge
among
Any
which
reasons,
array
are:
to the
should be
timely
in writing This was
done.
Garrett,
made
v.
285
[State
S.
279, 288,
4, 7(5),
cited;
Mo.
226 W.
Brennan,
cases
State v.
65
487,
325,
164 Mo.
504,
proceeding
W.
After
with
329(1).]
challenges
polls, appellant
precluded
to the
from thereafter
challenging
134
Taylor,
109,
State
35
143,
v.
Mo.
array,
S. W.
99(i);
Clark,
v.
92,
500, 513,
566(3);
State
121 Mo.
III. Two appellant’s firearms taken from possession at assignment the time of his arrest were introduced as exhibits. The against taken, their admission evidence is not well because: The. arresting positively officer gun; identified each and testified that appellant guns had person one his and the other in. his arrest; suit case at. the -time -of and that his was. slow complying with “get up command them and keep up.” them They were then admitted exhibits. All as without this occurred objection. objection lodged The against admissibility thereafter preserve of the exhibits failed issue for review. [State 242 (Mo.), 931(5); Glazebrook 928, S. W. 237 Reed, State v. Mo. 224, Ferguson 140 229, 909, 910(6, 7); S. W. 183 State v. (Mo.), 336, 337(3); S. W. State v. 329 Sinovich, 909, Mo. S. W. 916, 46 (2d) 877, 880(10); State v. 324 23 Stogsdill, Mo. (2d) W. 22, tending The were competent exhibits as 29(17).] attending, show the appellant’s Hart, circumstances arrest. 89, 388(8). 309 Mo. 274 77, 385, See, also, S. W. Mangercino, State v. (2d)
325 Mo. Ball, 30 S. 802(3), 763, 794, Mo. 1171, (2d) 14 S. permitted (a) Appellant assigns
IV. in that the court error Judge telephone McElroy identify the voice heard over the he con Judge McElroy telephone appellant. several and talked a thereafter met party versations with short time telephone voice over the appellant. positively He identified evidence, founded appellant. admissibility as that of of such depends upon identification of hearing, upon sense of has weight witness speaker; upon opportunity and value its Berezuk, 626, 633, had for the identification. recognizes “If the voice the witness states: person calling him, course, telephone conversation ” Milling App. 224 Mo. v. Strohfeld, admissibile. Co. [Meyer rel. State ex quashed, certiorari Trust (2d) 462; 30 S. W. Dorchester Cox, Strohfeld v. L. R. note Casey, 167 N. E. A. Co. v. Mass. l. c. IVa.] lodged against McElroy’s identifica
(b) A Miss comрlaint like appellant. door that of tion of the voice outside the bathroom *13 to her stepped appellant bathroom talked As soon as she out of the The with him a. conversations thereafter. and she had number of 300 W. (Mo.), S. clearly admissible. v. Bell evidence was 1004(2); (Mo.), 1001, 7 Hall S. W. 504, v. State 13 A. 14 L. R. 706, 78, 54 Fla. 44 Cas. 55, Mack v. So. Ann. State, 20 S.) 364, Pac. (N. note; Vanella, 326, 106 40 373, State v. Mont. for review issue not here 398, Ann. Cas. This is note.] question objection timely object to failed —the issue coming on this the had answered. See authorities after witness supra., III, under assignments of certain
V relate to the introduction Several photostatic objected photographs as exhibits. The exhibits to were s where of the basement -copie photographs of certain letters and McElroy Miss was confined.
(a) assignment of the is that the An common a number exhibits identifying photograph presence in of the witness was not made the represents the witness’ photograph exhibit. The the the fact observation, photograph than the witness made the rather determining factor it the essential present when taken, 148 Hughes State, 40, 68, admissibility. v. 126 Tenn. its the collating some 1913D, 1262, Ann. 550(3-6), Cas. by proven photograph cases, “The the states: fact it was immaterial. photographer the who made [Citing cases.] may by the accuracy proven anyone who knows photographs in They when shown fact. are admissible evidence [Citing cases.] thing in place reasonably representation to be accurate understanding testimony the help jury question,
1097 They belong witnesses. law of evidence [Citing eases.] plans. the same models, class as does affect maps, and It admissibility it representation, a if such it be shown that only particulars, weight. incorrect some but its [Citing casеs.]” Jones, 505, 520, Mont. states: “That Pac. may ais correct be shown photograph] representation fair [a by by person any made it or witness.” In State competent who v. (Mo.), McBride found photograph a stated, by defendant’s room and witnesses to resemble State’s (also the woman with defendant at time identified offense as the photograph of defendant one of defendant’s the wife witnesses) 1528; also, was held 16 C. admissible. J. sec. [See, Wigmore (2 Ed.), sec. Evidence
(b) assignment Another common to several of the exhibits is to change Photographs effect the conditions existed. diagrams purporting surrounding to reconstruct conditions the time of an in particular, offense are admissible in evidence. [See, O’Reilly, 597, 603, 577, 578(3); Mo. Cummings, 189 706, 712(9).] 88 S. W. Inaccuracies therein, questioned, generally such as properly are here are more impeachment, matter going сom weight, rather than the petency holding of the evidence. In in ex error was committed cluding photographs automobile, of an explanations change condition, Young Dunlap, App. changes.necessary 1044(10), states: “There were some get home, points machine but of differences could be these enabling jury
made give the basis for cross-examination, thus proper weight changes developed by evidence.” The testimony in the instant For case related to instance: When details. McElroy Miss identified a fruit cellar in which she photograph of the confined, had been she stated she had not shown noticed a window *14 r . photograph the premises The owne of also identified the the ring same but exhibit, protruding stated a certain iron from shown subsequent the wall had placed prior been there to her visit last kidnaping. the building The owner of her the limited identifica tion of photographs certain permanent of the basement to the struc knowledge ture thereof and personal disclaimed property of certain shown photographs. in the circumstances, photographs Under such the being by object identified witnesses familiar photographed, with the accompanied by necessary explanations concerning details, the the exhibits properly also, Louis, were admitted. Hunt v. St. [See, 278 Mo. City 224(2), Johnson v. Kansas (Mo. App.), 272 703, 704(2, 3); (Mo. Smith v. Wilson App.), 296 S. W. 1036, 1040(7).]
(c) photographs The by identified building the owner of the as representing the previously construction of basement had been the of representations fair reasonable by Miss and
identified Cates admitted confined, and McElroy was where Miss the basement prior of the time occupied the house at Miss-Cates evidence. The apрellant appellant’s companions. kidnaping with one of differences, inaccuracies or her to establish did not cross-examine Miss things while have condition any, might if existed conditions disclosed McElroy basement and confined knowledge In view the witness’ photographs. by were identity the exhibits photographs,- her premises made. admitted under the record properly instructions written under the (d) photostatic copies of letters The properly were admitted. appellant by McElroy Miss to her father together Judge McElroy question, delivered the letters testified he by appellant him from received all other communications request appellant’s at the time companions, appellant, at and his upon appellant, served paid appellant the ransom. Notice was ho originals. in In one presence cоunsel, produce in the of his never had the letters. appellant’s appellant stance counsel stated originals as impossibility produce He also stated it was an McElroy photo identified the appellant did have Miss them. McElroy by letters Miss copies copies static as exact written by Judge McElroy. exhibits were offered received ob McElroy’s testimony, at which time the connection with Miss Judge jection McElroy interposed. Thereafter, while was on original letters, and concerning receipt of stand he testified they presence. in his counsel photographed Thereupon, objection asked, no appellant, upon being stated he had appellant issue. Further: If exhibits. We think waived the this testimony been concerning them would have never had the letters as “a proper demand, produce without a formal fоrmal notice . any purpose.” . the letter could not have served [State W. If Koch, 16 S. 210(3).} Judge originals McElroy and failed or refused received the from secondary request, produce them a sufficient basis evidence S. of their was established. v. Smith contents (Mo.), Barrington, 198 Mo. In suggestion by at 235,W. a letter written a witness by lost, copy it was held that a thereof made accused was police from they time a statement the witness and obtained by copy him as an the letter written him identified exact circumstances, admissible. Under similar the same rule should equally applicable copy to a Fuller photostatic letter. [See Robinson, 343, 353; C. J. sec. 1528.] *15 Judge VI. McElroy money that exhibited testified certain him
to him money by and was. of appellant delivered ransom like kind and denominations. did undertake to further He identify money. ground This is attacked on the that the exhibited money was not identified.
Judge McElroy daughter’s letters, received his written at currency appellant, instructing only dictation of procure him used money in denominations of ten twenty, dollars, and five and have the piackages $1,000. in “$25,000 of He testified that of the ransom money in hundreds, fifties, $5,000 was twenties, tens' and fives and bills;” was in $1,000 money five $30,000 that ransom he delivered and appellant $25,000 currency $5,000 told “there is in small and $1,000 bills;” appellant Stevens, objecting that and after $1,000 bills, finally accepted that, money. McElroy Miss testified just prior to her . appellant told “. . that Dad release, her included five one thousand . .” dollar The fore bills. going objection evidence exception. Judge went without Mc Elroy personally money; also stated that he did not handle the that it request; was handled requested taking at his that he numbers; serial was much time; he distressed and that the at the every $30,000 serial numbers currency bill at was taken his day money home in the forenoon of the delivered appellant. testimony Judge We think the inference from this is that McElroy, although personally money he did not handle the and take knowledge the serial bills, numbers of the of the kind de and nominations, given by information him others, outside of of the currency appellant. he delivered to This the extent of his money; identification and such identification has been con 429; Gady State, sidered admissible. 83 Ala. 3 So. [See Clark, Utah, Pac. It is not essential the ad 119.] identity missibility persons things on the of evidence positive long identification be so as it based oh within facts knowledge. the witness’ Blackmore, appellant’s At time cases cited.] Texas, $1,000 at Amarillo, arrest June he had bills five $3,000 luggage, approximately currency hidden in in a money money person. belt and other on his The serial numbers Judge currency taken, mоney, this this Mc exhibited to Elroy, money from ap was identified officers Amarillo as pellant’s possession .upon Appellant stated his arrest. to the officers question money kidnap and one money, Amarillo witness, although opinion was of the- clear, stated subject Judge money. ransom, McElroy kidnaping matter was the knowledge money McElroy’s developed was not fur by appellant; and no ther on cross-examination motion to strike the *16 1Í0Ó weight
testimony in appears exceptions. bill We think of jury. testimony value of on was for the and his this issue testimony assigns in the Appellant VII. error exclusion of Judge witness. credibility McElroy as a asserted to affect the of inquire concerning his knowl Appellant sought this witness to of City and au edge operation of in his slot machines Kansas thorship news pertaining of a certain article thereto one purpose inquiries shоw that the papers. The was to evident and, in the event operation of machines is in violation of the law slot offer the article of an affirmative answer to authorship, ’ Practically the in evidence show the views thereon. witness distinguished from expression opinion, an entire article is. history. relate witness’ statements of fact. The article not did question that he Thereafter, stated response witness party opera in the partner as a with another named interested inquiry counsel, machines, upon appellant’s slot and, tion of questions along line. there other court informed were no Assuming affirmative, would insofar the witness have answered not have expressed opinion as the article of the witness it would 744, 222 283 Mo. S. W. competent. Nave, v. been [State gen 263 745(1); (Mo.), S. W. The 178, 180(2).] State v. Aurentz attacking purpose credibility, a witness’ he eral rule thаt for the though tending may be on irrelevant matters even cross-examined disgrace long does not expose expose him so as the examination subject charge, the nature him to a criminal limitation that largely rests within the dis and extent such cross-examination Bowden, 647, 698, v. 250 161 cretion of court. Mo. the trial [Wendling Barraclough 157, 789; Co., Pac. 331 Mo. 774, S. W. v. Union Railroad (2d) Baugh 998, 1000(1); 52 v. 163(1), (Mo.), W. State 217 S. 427, 276 207 277, 281(5). 439, see State v. Mo. Stegner, And cited; 826, (Mo.), State Loahmann S. W. cases v. 830(15-17), Sayman (Mo. (2d) App.), v. 282 58 S. W. Asadorian recognized This limitation to the rule is 100 S. W. 644, 657, v. and State Long, Potts, 6), ap 239 Mo. S. W. cited v. 498(5, were, inquiries matters, in the case collateral pellant. instant The bearing upon tending disprove having prove any or or no direct case, or the importance upon of vital witness’ attitude issue defendant; trial merits of the- case or toward court’s rightful its exercise of action was within the discretion. assignment improper relates to VIII. Another remarks of jury. argument The record in the fails counsel the State objections exceptions issue, made saved. to show there 191 Mo. (State DeWitt, waived fore, must be considered being preserved for review. Seward 79), 90 S. W. (Mo.), 150, 154(12); S. W. Copeland, 746, 751(8); Mo. 1239, Eason, 71, 76(8).]
IX. Appellant
penalty
contends the
is excessive
assessed
and the
passion
result of
prejudice.
no proof
pas
We find
sion
prejudice
record,
penalty imposed;
unless
it be the
*17
allegation
trial,
the motion for new
unavail
proof,
absent
is
ing.
v.
94
Golden,
784, 792(5),
(2d) 91,
Mo.
51 S. W.
[State
(5); State
Preslar,
v.
687,
S. W.
689(9).]
4020,
Section
supra,
ranging
authorizes a punishment
from five
years’ imprisonment
to death,
jury
“at
option
of
court or
assessing
punishment.”
Copeland (Mo.),
In State v.
71 S. W.
(2d)
752(11),
746,
Leedy, J., said:
court
held
repeatedly
“This
has
fixing
that the
punishment
of
legislative
for crime is a
judicial
a
function, and when,
casе,
as
punishment
in this
is
assessed within the
prescribed by
limits
be ad
cannot
statute,
judged
.
to be
.
.
excessive.
to such
ob
holdings,
Adherence
viously sound, disposes of
question
raised,
thus
so the point
against
is ruled
appellant.”
Alexander,
And
v.
315 Mo.
202(4),
The foregoing disposes assignments all of for new the motion trial briefed appellant, assignments and some in said motion of a like nature not briefed.
X. jurisdiction The of Circuit County, Court of Jackson Missouri, questioned theory on the the crime was consummated [Re prosecution the State Kansas. of The under Section 1929 (Mo. Ann., vised p. reading: Statutes Stat. 2827), in part, . any person “If . . shall willfully, authority, without lawful kidnap . . . carry by any or abduct or away take or means what ever, attempt . do, any so . person or . . at . . . tempt person cause . . . secretly or such to be con against will, fined their or abducted purpose for the and with the in causing tention ... of the father person of the so abducted . . pay pay any . or offer to as ransom . . sum . for any the return or . person, release of . . . person such . said guilty ... of so the above act, shall, mentioned or convic acts. ours.) tion, punished.” (Italics be disjunctive Or “is a particle marks an generally corresponding alternative to ‘either’ as ‘this or ” 1; that.’ C. J. sec. State Combs 273 S. (Mo.), [46 Independence Dodd v. S. & F. Co., Mo. 662, 671(8), 51 coordinating (2d) 114, conjunction “A disjunctive regarded as
two or more words or each one of which turn is clauses Dic- excluding consideration the other or others.” [Century tak- material Section insofar as here denounces tionary.] ing causing such carrying away any (a) person or will, (b) against her or person secretly confined his or causing purpose such and with person be abducted for the causing person intention of sum pay father such gist The person. ransom for the such return or release of taking away evidence es- carrying place. or unrestricted away Missouri, taking carrying in Jackson County, tablished causing purpose release pay the father a ransom for daughter. given Alleged XI. instructions errors reference review, ap because are before the court in the instant case any in objection exception giving interposed no pellant 22 S. Mosley (Mo.), court. in the trial struction 311 Mo. 784, 786; Hedgepeth, State v. Ex 8 S. W. 742(6) ; Brannum, 19, 22, 219.] *18 objectionable amining we all instructions assignment, find this effect that the by statements to the grouped clause, in followed one alleged require in the jury the facts fail to find instructions evidence, too are agruments, are are on the information, comments assign Such misleading, peremptory. and an prolix are long, and separate particularity detail not set forth in and ment does grounds for a specific new trial. paragraphs the causes numbered Ann., p. 3735, 1929, R. Mo. Stat. S. 3275.] [Sec. pos he into the Appellant’s assignment
XII. that has “come will which evidence previously of some new undiscovered session ” prove . itself ., not materially does aid him his defense 1026(12)); (2d) 1023, 24 734, 741(7), S. W. Parker, 324 Mo. (State v. showing record, is and, by any insufficient. unsupported required showing and 112, stating McLaughlin, 27 111, Mo. v. (Mo.), Smith approved in State v. therefor, and followed reasons cases; (Mo.), 64 S. Sherry v. citing 154, 247 S. State 157(2), W. W. (Mo.), 19 S. 240(13). (2d) 238, See, also, State v. Maness 1251(9), 18 S. W. 1239, 630(7) ; 322 (2d) 628, State v. Mo. Eason, (2d) 71, 77(11).] jurors
XIII. their Appellant’s assignment on voir dire that the opinion ap- they fact an on concealed the formed examination allegation pellant’s guilt-or without merit. does innocence is showing supporting it. prove no itself. whatsoever There alleged showing such There affirmative when information of is no 1103 I, (c), first reached or his opinion counsel. Point [See supra.] XIY. Assignments of error to the that court refused effect requested quoted certain trial, instructions, the motion for new setting (State without forth why the reasons error was committed v. 320 278, Mo. Bailey, 271, (2d) 57, 59(6); Vigus 8 W. State v. 66 (Mo.), (2d) 856(5, 6); S. W. 46 854, (Mo.), v. Fisher State (2d) S. W. 555, 556(2); Shuls, 329 v. Mo. 44 S. (2d) (11)); 97 that the court admitted irrelevant, imcompetent testimony (State and immaterial 335 71 Copeland, v. Mo.
(2d)W. objectionable 750(3)), pointing without out the tes (State timony Wampler v. 58 (2d) 269(6); (Mo.), S. W. Aguelera,
v. 326 905(7)), Mo. (2d) 901, S. W. assigning incompetency (State Buckner, reasons its (2d) cited); S. W. against law, cases verdict is against weight Francis, (State the evidence and the the еvidence (2d) 552, 554(1); Mo. S. W. Smith State v. (Mo.), (2d) 696, 697(1); Copeland (Mo.), supra State v. (1); Goodwin, 168, 169, State v. Shawley, 86(24));
State v. 67 S. W. passion prejudice that the is the result verdict part (State jurors supra); Smith, supra; Copeland, erroneous; support the verdict record is insufficient to judgment; punishment general and that the is excessive are too preserve anything subject for review. Some of matters alleged foregoing in con errors have been heretofore discussed specific assignments. nection with more alleged
XY. Certain in appellant’s errors are time first assignments brief filed this court. As such are set forth appellant’s upon trial, motion for new trial court was not called disregard the issues, to review its action on such and we therefore *19 complaints only appellant’s brief. R. made S. [Sec. p. 3275; Ann., Harlow, Mo. Stat. v. 327 Mo. State (2d) 419, 421(3); Nichols, v. S. State Mo. 1237, 39 S. W. Gillman, v. 146, 149(9) ; Whitener, v. 329 Mo.
44 S. W. (2d) 579, charges 4020, supra, information under Section an offense guilty. proof sufficiently All substantiates the verdict of assignments appellant’s error for trial been motion new have proper Accordingly, error. reviewed. The record discloses no judgment Cooley CC., is affirmed. concur. Westhues,
n adopted C., foregoing opinion by PER CURIAM:—The Bohling, judges All the concur. opinion of the court. May Execution set for 1935. Rehearing.
On Motion for
PER
ap
CURIAM: Counsel for
this court did
ap
pear
Alleged ineompeteney
this cause
the trial
court.
pellant’s
assigned
remanding
ground
trial counsel
as a
properly-
cause. No such
presented
issue was
in the trial court and
preserved
disallowing
for appellate review.
Additional
reasons
may
contention
found
Dreher,
in State
567, 569(2).
also,
Ill.
People
[See,
Anderson,
185,
The motion for is overruled. City Missouri Relation of the State of Excelsior Springs, Relator, W. (2d) 37. State Auditor. 82 Smith, Forrest Banc, April 29, 1935.
Court en