*1 SUPREME COURT MISSOURI, OP Millsap. Appellant. THE STATE v. R.O. MILLSAP, Two, Division October 1925. Preliminary Hearing. jury may grand

1. INDICTMENT: investi- The gate, although charged felony, and has been one with he indict a examination, preliminary is arrested and held and is a examining magistrate. await the the to action bound Special Judge. Special -: Plea 2. in Abatement: Term: The regular vacation, judge, by clerk, with in written order filed the pursuant special 2348a, 254), (Sec. a to statute haws called p. day, reciting court, term be in the of the circuit to held on said county jail persons order that in two were then confined the having crimes, charged unable with and were committed certain give bond; regular convene to term said would not court months; special and said term called for the trial for two was prisoners, dispatch business and for the such other day jury might grand regularly proper. On was im- be a judge,' charged regular paneled, and and the record sworn regular judge appearing is unable be recites that “it holding term, special clerk continue ©resent judge special proceed a hold an election of this court doth days previously holding a said term of court.” Five to continue ap- committed, days previously and three had been murder accomplice lodged pellant alleged been arrested and his prisoners charged therewith, jail, named were not hut judge special calling special judge’s term. in the order term, special partner, holding of and his to continue elected previously to assist brother of deceased retained had been deceased, partner prosecution, and his a cousin of appointed regularly on said assistant day judge regular was absent after the first date. The judge stead, special presided term, special accomplice alleged charging appellant indictments, with and the grand degree, so im- were returned in the first murder special Held, later, paneled term. at such two weeks plea subsequent timely illegal, things these none of properly overruled. indictment abate Judge: Special Counsel for State. A of Deceased: Cousin -: 3. party, or has been of judge either related to or is interested who preside disqualified proceeding, at the is suit counsel thereof; part but determination in the or to take trial TERM, APRIL Vol. person judge, who is cousin of the

having in the retained to assist and whose firm has heen murdered appointed regularly prosecution partner as- has been and whose *2 attorney, competent prosecuting an indictment to receive sistant is by impaneled grand jury which term over at the returned a impanel regularly preside he did not and which he was elected to charge, although disqualified defendant. at trial of said to sit or Jury: Grand Children of Accused. The -: Witnesses: Before 4. by the fact that defendant’s sense invalidated indictment is jury interrogated grand by subpoenaed be- and children were was found. fore the indictment Principal Accessory. Charged and An indictment -: both as

5. charges deceased count that defendant murdered in the one person crime to commit the and that he incited another in another accessory may charged, the fact be An is not inconsistent. degree, adjudged guilty same of the offense tried and degree. principal manner, punished first in the same legal and the count both the defendant In accessory the second effect crime, principals one of in the commission superfluous. simply is the counts Conspiracy. Motive: Evidence: Circumstantial: MURDER: Sufficient 6. guilt murdering Although defendant’s of evidence to establish night shooting through circum- is him window deceased support stantial, homicide where the it sufficient a conviction is to mouth, positive proof, conceded, defendant’s own is out of is there conspiracy killing of a between him defendant and a motive for- of proof him, positive circum- kill of substantial to another guilt facts, with his and inconsistent which are consistent stantial innocence, he and which if true show his murderer. Rebuttal Witnesses on Indict- of Names of -: Indorsement

7. began Although has sustained ment. the trial the court before require names to indorse to motion although upon indictment, and the State all witnesses for produce objected, wit- in rebuttal offer of the State to it indorsed, the defendant not names are so nesses whose fifty sixty place attorneys from the of the homicide miles are or witnesses, opportunity to secure the attendance had no and have produce permit of such it is error application rebuttal, for makes no where defendant witnesses showing delay countervailing and makes no to secure especially prejudice, surprise defendant has wit- where testimony. such to refute who are offered in attendance nesses SUPREME COURT OF MISSOURI, 8. -: Evidence Irrelevant Matters. Motive: In the trial murder, permit a defendant for is not error to a witness tes- it. tify that, in a with defendant in which .conversation defendant whiskey only said that he make could and that deceased was the man who could make him and his.associate trouble and if it, interfered and was killed the hear witness would whiskey stated to witness he would make and said associate peddle statements, part being would it. Such of the same con- versation, prejudicial rights. are not irrelevant or to defendant’s Degree. -: Instruction 9. Second Where defendant is con- degree, giving victed in the of murder first of an instruction degree, although on murder in the second unauthorized the evi- dence, is harmless. -: No Instruction: Alibi: Evidence. Where neces- sarily plain implications understood of an instruction for the State that if found that the defendant incited and induced necessary another kill shoot deceased it was not that de- present aiding abetting fendant have been hnd should at the time other, *3 the fatal was fired such instruction alibi shot an on should tendency confuse, given, not have since its to mislead and been was evidently but did it not mislead and was' not error. TO JURY: 11. ARGUMENT Admissions. Where defendant has testi- may fied in counsel for comment own behalf the State on his his explain damaging to- him failure facts attributed other wit- .to denied, may say nesses, facts that such are not and especially pertinent showing facts as where such are motive.- Law, J., p. Corpus Juris-Cyq. 103, Criminal 16 C. References: Section 156-8-, 121, 6; p. 635, 18i; p. 764, 54; 1263, n. n. n. Section Section Section 2029, 74; 2240, p. 896, 85; p. 106®, p. 798, 2506, Section n. n. Grand n. Section 2|8 Juries, J., 3691, p. 343, J., n. 8. C. Section 85-: 17 C. 107, 416, p. 189, Section 4.06, 180., 40; J., p. p. 808>, Homicide, n. 30 C. Section Section n. 72. 52; 539, p. 295, 15; 543, p. 299, 83; n. Section n. n. Section 42; 447, 713, p.-1312, p. 302, 11; 559, 54|8, p. Section n. Section n. Section 82; 27, p. Informations, 576, J., Section n. Indictments and C. n. 64. 89, 96; 341, 54; 290, p. p. 666, 740, 182, p, n. Section Section n. Section 22; 100-3, 161, p. J., 159, p. 778-, Judges, n. Section C. Section 3'® n. p. 1024, 204, 200, p. 1022, 45; n. 95. 1006, n. Section n. Section Appeal W. E. Bur- Circuit Court.—Hon. Laclede from Judge.

ton, Affirmed. G. N. Murrell, Geo. Jachson, J. Jachson, W.

G. H. appel- Craig, for G. Irwin Donnelly Wm. Phil J. M. lant. plea have

(1) been should in abatement Defendant’s who acted as Curtis, M. that A. sustained for reason 1925, TERM, APRIL y. State judge during grand jury special of the the deliberations returning employed was as indictment, upon prosecute defendant and entered had employment qualified before he that judge, qualified special judge he well knew at time he first cousin of the deceased and knew that was a investigate being grand jury convened was this grand jury empanelled was de case. Before justice peace, fendant had been given ap killing for deceased, and had a bond pearance. given The fact that after defendant had bond placed jail he was fact that bond, denied important to be children, his two minor known witnesses grand jury, defendant, ordered before prejudiced against judge show that the biased 3870, the defendant. 2345, 2351, 2355, Secs. (2) being theory It of the State R. S. 19191. and that defendant E'rnest Johnston killed the deceased procuring aiding, abetting, assisting present, any that defendant was Johnston, there is evidence place deceased was nearer than two miles of the where night. that Johnston is no killed on that There any place than miles of the where nearer two theory except night on deceased killed the tracks that made of the State that the overshoes any proof from without Johnston, the overshoes pair of overshoes. ever had a source that Johnston for the witnesses This the face of the imprint in the over shoes of Johnston’s been worn shoes the overshoes indicated *4 probative incompetent effect, Johnston and of no Gray, found who when witness Lonnie State’s positive overshoes, made assertion of all in the him. Then face found overshoes testimony sustained of have this the court should discharged defendant’s demurrer to the S, 12 Singleton, 147.; W. 243 the defendant. State v. Welton, Morney, v. 49; O. J. 196 Mo. State 488; v. State v. 642; State Mo. 225 S. W. 170 965; Crabtree, State v. 504 SUPREME COURT OP MISSOURI,

State v. Remley, 237 S. W. 489; 117 Scott, Mo. State v. Francis, 671; State v. Madison, 177 S. 347; W. 'State v. 253 Mo. 500; Racionan, State v. Hollis, 225 S. W. (3) 952.; v. ‘Staats, S. W. 953. The State testimony comparisons offered of tracks found near the house of Silas that of some overshoes produced They in court. offered evidence, over ob jection of the defendant, that the shoes Ernest John compared ston had been with the overshoes and that imprint compared in the overshoes with the soles of the shoes of Ernest Johnston. There is no evidence pair whatever that Ernest Johnston owned of over pair shoes, that ever aworn of overshoes, or that pair he had ever been seen awith all of overshoes, which Gray, party view of the of Lonnie who it is claimed found the the over overshoes, shoes exhibited the trial of case this and used comparisons positively witnesses in the of these shoes not the shoes found himself. State G-oddard, (4) Mo. 198;.State v. Thomas, Mo. 235'. The court permitted Pasley, should not have H.W. or his towife testify day on the last after a trial, motion had requiring been sustained the State list the names appeared all its witnesses on as it indictment, subpoenaed by record that these witnesses had been State, and the State knew at the said motion time was sustained, but waited until for it was too late get county sixty defendant to from another witnesses away. or more miles It is evident that the State held appear these witnesses back did not have them day, prejudicial Lebanon until the all last rights of the defendant. Attorney-General, Robert Frank, and W. F. Otto, W. Attorney-G-eneral, respondent. Assistant (1) Wright term of Circuit Court legally County appellant at which indicted *5 1925. APRIL TERM, v. State p. (2) grand 254. The 2348a,

called. Laws sec. jnry legally R. 1919', was called and S. sec. summoned. App. (3) 195 Mo. 590. The 2350; Brown, State v. in- degree murder dictment first approved Clay, form. State 681; State v. (4) P'erguson, 278 Mo. 292 Mo. 182. Gore, plea properly Defendant’s in abatement overruled. was appellant special term the circuit court at which legally indicted called. R. Sec. (a) regular judge special After the called the term jury special grand term, court ordered at said special judge preside one A. M. Curtis elected day’s special over said after first Com- term its session. plaint Special Judge is made that was a cousin Curtis employed case deceased and was at one time part appel- of the that for State, such reasons plea There was lant’s in abatement should be sustained. proceeding pending special judge no suit or before until after returned. The does the indictment was record any steps special judge not show such took whatever Using language in the case. not of the did statute, “sit on the trial or the thereof.” Sec. determination spe- R. 2345, S. 1919. The record does show such judge grand jury gave cial advice them during presump- or instructions their deliberations. The reg- tion from the facts shown in record is that the posi- judge jury. grand ular The record instructed tively regular judge special shows that called the jury, grand term of court, ordered and regular judge clerk that the not attend shows did day. after court said the first The record also shows trial and term of court was called for the disposition certain and other matters criminal cases pending presumption right in said court. The action judge of a court obtains in absence of evidence contrary. Springfield Real Assn., Price v. Est. (b) Complaint Mo. 117. chil- is made that defendant’s important dren who sub- witnesses for him were poenaed testify. compelled grand COURT OF MISSOURI, SUPREME y. Millsap. prior finding’

This was indictment, done proper. Such statute, matters are controlled such 3870', statute has been this court. Sec. construed *6 Weagley, (5) R. 1919; State v. 286 Mo. 68G. These approved many instructions are such by have been times appellant why reason court, has advanced no any given. all them not have been v. should State Hudspeth, Cushenberry, 159 157 Mo. 178'; Mo. State v. Prunty, 185; 359; State v. 276 Garrett, 276 Mo. v. State Mo. 310;; 68; Dooms, State v. 157 Mo. State v. Grant, fully (6) Mo. 84. Each of the refused instructions given fairly instructions covered other right court. in- to have the State’s “Defendant has (7) duplicated.” 282 Mo. 51. structions State v. Chick, Complaint indorsed were not that witnesses whose names testify permitted well is not on the indictment were Stegner, Bar- founded. State v. State v. rington, Myers, 198 Mo. 225. 68;Mo. evening 23,1923, December

HIGBEE, C. On Moody, company eight nine o Silas ’clock, between seated mother-in-law, was infant child and wife, with his County, Wright Mis room of home in the south his immediately of the south in front souri. He was seated pos up. in this killed The blinds were He window. passing charge from without, a shot fired ition lodging neck and through face, in his the window making no statement. time, He in short shoulder. died gun seized Mrs. fired. No witness saw shot in search house out of the bed, over the ran from pointed Suspicion de to this one. but found no ruffian, on They arrested and Ernest Johnston. fendant January separately on indicted 1923, December This defendant of court. term at a 10, 1924, County, placed Laclede court of in the circuit trial re change The trial venue. where case went on degree on first of murder conviction sulted in his imprisonment, life a sentence count, the second appeals. from he APRIL TERM, charges

The first count of the indictment the defend- principal. ant as The second count that Ernest Johnston committed the murder defendant was accessory an before the fact.

The evidence for the State is that the summer of Millsap working 1923, while Johnston and at Cof- feyville, appellant approached Kansas, one Albert suggested McIntosh and himto that he could sell Ford automobile to E’rnest Johnston; and John- going ston were back to Missouri where he would make whiskey peddle and Johnston would it. McIntosh ad- vised him do not to but defendant that, there but one man who could trouble; cause them Moody; plans man was Sil kill laid him once “we place, before when I lived on for meddling;” Ernest’s making whiskey suggested that he was then. McIntosh pretty poor that it himi would be a man business and *7 might penitentiary. going stand a chance To to the appellant replied; this the it’s damned “Well, hard prove anything you on a man do,” that didn’t see him Moody he added if and that Silas and was interfered (McIntosh) Shortly killed it. he would hear of there- Millsap after Johnston and returned to Missouri. days prior killing, Millsap

A few went to private home of a James Adamson had conversation and up against 'with him, in which am it- he said: I “Jim, running . . a . me and Ernest off Johnston was whiskey evening up. Moody batch and Sil come up. Moody We looked out and seen Silas made come We ’’ up our minds at once do. what to they Millsap In this conversation further stated that up Moody; made their time kill that minds at that they gun get drew a on him and down on his made him promise knees and tell noth- he would and would leave, ing they and turned back; would never come after that they wrap up him loose made to kill his him, their minds body lay top a carry it under sack, hill, it to the gun a tree, fire his him. Adamson remonstrat- and leave stating get (Millsap) ed, into that he would himself SUPREME OF MISSOURI, COURT appellant replied: trouble,

serious he “Jim, but if tbe Appellant don’t leave here we will kill him.” left then Moody, daughter, Adamson and called the latter’s Della into the house and conversation with her which he told her that he E’rnest Johnston had been down making liquor,; they at his house saw hen Silas Moody coming; gun that Ernest took his shot and drew Moody promise made it on him to leave and tell anything on them. He in that conversa- further stated they country Moody if tion that leave the would did not shortly kill In a lEIi him. conversation with McIntosh prior killing, appellant referring said, to the same “Moody up there to his hen house incident, that snuck banking gun it, he under around where gun him and drew on arm;, that Ernest Johnston kill would him hit the hikes.” He said Ernest made Moody. about a Devers,

In a with William conversation killing, thought appellant that he month before the caught getting him and if he Sil his rabbits, they started home after he aimed shoot him. As yet.” get appellant that s — o—b— said: noon, “We’ll Millsap day killing Johnston On they together. Pasley H. and wife testified seen W. again morning passed Millsap Sunday Sun- ’s house Millsap evening; in the' Johnston day saw together house on both occasions. County, Wright testified Grewse,

J. M. the Sheriff Millsap Decem- Johnston, he when arrested Millsap’s together home, with ber found them *8 shotgun single 12-gauge pistol barrel a 32-Colt’s at the house the time. in following appellant met day killing Della

On the the road, the Moody, Devers Adamson and William James not speaking killing, he was he knew and, guilty meeting go killing to Moody didn’t for he up get after sun- night stayed until but and didn’t home to up morning. asked Della the next He then her her say anything he had said what about 50*9 TERM, APRIL y. Millsap. innocent per- some get it liable to home, for was father’s trouble. son into told jail were and Millsap Johnston they

While loose and if were turned they sheriff deputy lull- did show the man who up would they given $500' ing. footprints were following killing

Immediately window through south of the in the mud discovered led around house They fired. gun o’clock, one ten between evening, That nine north. over- from a found a hunt, rubber returning Gray, Lonnie quarter lived about Gray his house. shoe in front of The following morning of the deceased. a mile north gate. near his front mate this overshoe found the Gray Moody’s to Silas that morning He took the overshoes marked them who them to the sheriff and delivered house sher- kept custody initials. were with his They of the trial. until day iff in the exactly footprints fit found to rubbers were These Johnston, arrest Following mentioned. above feet. The rub- taken off his were wearing he was shoes these surface of outside exactly. them bers fitted worn, glossy rubbers been indicated shoes far showing up side surface thereof polished The shoes had rubbers extend. would of the shoes as the and the tacks rubber heeled They been half-soled. the imprints with exactly corresponded the half soles rubbers, the bottoms of the inside of made on on bottoms of the rubber trademarks the winged corresponded exactly visible plainly heels were addition to In in the overshoes. thereof impressions and the the heel made impression the general par- these clearly indicating that exactly, half-sole fitted No ex- worn Johnston. had been overshoes ticular Lonnie left at how offered as to planation the public Gray lived but shows Giray’s, the proof house and that Moody’s north of of a mile quarter road ordinarily would one Johnston’s Moody’s from go home. Gray’s past travel the road leading *9 COURT SUPREME OF MISSOURI, Millsap. testimony tending some There was to discredit this Gray testimony. produced denied that the overshoes at , the trial were ones he delivered to the sheriff. He pro- the overshoes he found were newer than those prosecuting- duced at trial. and The sheriff at- torney, however, both testified that these were the same testimony overshoes. There was other to the effect that preliminary hearing pos- at the shoes were in they session of the defendant and his counsel, that roughly were inside turned out and otherwise handled. spent Sunday The defendant that testified he after- evening noon and at home of Walter arriv- Johnston, ing there between three and four o’clock; that his son got shortly came after he there; that E'rnest Johnston they supper together there the time; at that all ate past eight went home half he between and nine evening. o’clock that he is In this corroborated Mrs. eleven-year- Walter Johnston and Edna her Johnston, daughter. They old all testified Ernest Johnston stayed night retiring all there, about nine o’clock. Mrs. Millsap Julia she saw Williams testified that and his going evening son home that about o nine ’clock.

There was introduced to the effect some Pasley that the witness his wife mistaken in identity parties whom took to be Mill- sap Millsap Johnston at the home date Ralph killing. Pagan Elvin he, Mill- testified Sunday sap Millsap appellant’s home and Scott appellant Ernest afternoon and that the Johnston were not there. defendant offered evidence that good; general reputation law-abiding his citizen was as a that it bad. State offered plea guilty of not The defendant withdrew grand jury plea abatement. filed a It improperly, regular being term there formed been had been L. Vandeventer convened; that W. court prosecut- employed prosecuting assist ing an assistant and was jury, grand appeared attorney, APRIL 1925'. TERM,- questioned grand jury the witnesses and advised the with reference to the case; that two of in- defendant’s *10 known children, fant to be the witnesses, defendant’s subpoenaed by give the State and were to forced grand jury their while defendant jail; although confined that at said term of court, regular judge Wright C. H. Skinker was the circuit County, presided judge A. M. Curtis as circuit and was partnership at the a time a member of firm between W. L. Yandeventer and that himself.; Curtis acted as circuit judge, and is a and was first cousin the deceased Silas disqualified Moody and was for that reason; that illegal indictment is inconsistent and Moody. Ernest Johnston killed Silas It is further al- leged that before indictment found, complaint justice had been arrested on a filed before a peace given appearance of the and had bail for his preferred prevent that the indictment was him from having preliminary justice. examination before said

I. statute, Section 3818, Revised Statutes 1919, requires prosecuting attorney that before the shall file charging person an information felony awith such person right preliminary shall first be accorded the of a grand may examination. But a in- Preliminary vestigate and indict one with a fel- Examination. ony, although been has arrested and is preliminary held for a examination, bound examining magistrate. await the action of the [State v. (2), 525.] appears, 209 Mo. 331 108 W. It Gieseke, preliminary however, that the defendant accorded examination. judge

II. On December Hon. H. 28, 1923, Skinker, C. Eighteenth Circuit, Judicial a written order Wright filed the clerk with Circuit Court of Coun ty, pursuant in vacation, to Section Laws 2318a, 1921, MISSOURI, COURT OP SUPREME special

p. called a term of said court to be day, reciting, held on said inter order, Special Judge: George Oly alia, Stubbs and Oean were Special jail county charged then confined in the of said Term. having committed certain crimes, regular give bond unable to term special court was two months distant. Said term of said prisoners regularly called for the trial of said 'was dispatch might prop- other be such business day grand jury er. The record shows that on regularly impaneled, charged by Judge sworn and by Section Revised Skinker as authorized Statutes regu- appearing that, 1919. It next recites “it that the present judg’e lar ing is unable be continue hold- pro- clerk court doth term, of this of this special judg'e ceed to hold an election of a holding to continue *11 term of elec- court,” said resulted judge special tion of Hon. S. as to continue M. Curtis special whereupon holding court, of said term of said required. and Yandeventer Curtis took oath Curtis by previously had been retained a brother Silas prosecution. Judge Moody, to assist in the deceased, Cur- Moody, related cousin to deceased, tis was Silas appointed pros- regularly Mr. Yandeventer was assistant ecuting Judge 28, on December 1923. Skinker special day Judge was absent after the first of this term. presided re- Curtis in his stead. The indictment was during January turned on continuance 10, 192.4, grand discharged. term, and the- special judge by The election of a was authorized 2441, Section Revised to have 1919, Statutes seems regular compliance [State been v. and in the statute. judge 25.] 133 Mo. 34 Punshon, W. While 50, S. party, who has is interested to either or who related disqualified proceeding, any been of counsel in suit or is (Sec. thereof sit on trial or determination 1919) Judge yet Special R. S. there can doubt be competent Curtis indictment returned to receive the by although grand jury against dis- defendant, APRIL TERM, 513 y. Millsap. qualified to trial of [State sit cause. v. Godd 697.] complaint 162 62 ard, Mo. S. W. The that de subpoenaed interrogated fendant’s children grand jury before indictment is found without merit; it was not forbidden Section 3870, Revised Statutes duty grand jury 1919. It was diligent inquiry sworn to make persons having knowledge all touching investigation pre the offense under and due [State sentment make. Faulkner, 566, 75 Weagley, (2), S. 116;W. Mo. plea properly 817.]

W. The in abatement was over ruled. quash

III. The defendant moved to the indictment following charg- reasons: is It inconsistent in ing the first count that the defendant murdered the deceased and in the second count that defendant incited person ^^her to commit said that de- crime; indictment fendant is not advised indictment against; he is to crime defend indictment vague charge any does and indefinite and crime known to the laws of Missouri. charges stated,

As heretofore the first count principal degree. with murder in the first count Ernest Johnston second with mur- degree killing der the first for the of Silas Millsap O'. murder and that R. the said was com- feloniously, procure etc., incite, move, mitted did counsel, command, assist and abet the said hire, Ernest felony and commit Johnston to do the said and murder *12 etc. in manner form aforesaid, accessory felony any An or other murder upon adjudged guilty conviction, the fact be of shall, may degree, charged, the offense in the same be punished in tried and convicted and the manner as same ] principal degree. [Sec. R. 3687, the in first S. may allege accord indictment either the matter “The ing charge principal or both ac fact degree.” cessory principal [State first v. as Sup.- 309 Mo. —33. MISSOUBI, COUBT OP

514 SUPBEME v. State Sykes, S. W. State 133 Mo. Schuchmann, 125, legal ef count, The second 851.] 89 W. 81, 191 Mo. principals Millsap in the charges as Johnston fect, vague in Neither count is the crime. commission distinctly they Each inconsistent. nor are definite crime the commission of defendant with super degree. One of the counts murder the first fluous. Judge S. W. Reeves,

In State v. said: Williams indictment that reference “It will he seen charge of the the commission the three counts each of principal count each The first crime. same respective- charges each third count and the second accessory real fact. The principal before the ly necessity formally charging as ac- the defendants appear, under since does not before the fact cessories accessory ‘may present be in this State such law punished charged, in the same tried and convicted degree.’ principal But what- in the first manner as pleader, purpose may im- it is of the ever have been the material here.” properly quash was overruled.

The motion to Appellant which is evidence, IV. insists that and that submissihle case circumstantial, failed make overruling insists He court erred in his demurrer. in the record that Johnston ^ere is Sufficient Moody’s house on the two miles was within Evidence, theory except night on the killed deceased was tracks that made the “the overshoes proof any from Johnston, without were the overshoes pair overshoes had a ever source that Johnston Gray, who found . when State’s witness . . Lonnie positive assertion overshoes, made the in their brief him.” 'Counsel not the overshoes found (the say: “They State) evidence, over offered further objection of Ernest that the shoes defendant, compared with the overshoes and had been Johnston compared imprint soles with the the overshoes *13 APRIL TERM, 1925. 515 Millsap. State v.

of the shoes of Ernest Johnston.- There is no evidence pair whatever that Ernest Johnston of owned over pair that he had worn a of shoes, overshoes, ever or that pair he had ever seen been with a of overshoes.” It proof conspiracy also there is contended is be Moody. tween Johnston and the defendant to kill In support of their contention that demurrer have should been learned counsel sustained, Singleton, cite State v. Mo. 243 147, 294 S. 346, W. many other cases where, here, the conviction was sought Singleton on circumstantial evidence. In the Morney, page quoted case, 360, Railey, C., from State 49, l. c. 1117, as follows: W. 1 altogether up- felony “When a conviction for rests on circumstantial as in this circum- evidence, case, ‘the proved stances must be other, consistent with each con- hypothesis guilty, sistent with the accused is hypothesis at the with same time inconsistent every hypothesis .he is and with other rational innocent, except Cyc. guilt.’ [12 that of 488, and authorities cit- ed.]” again, page quoting

And from v. Ruck man, Mo. 161 S. W. 705: “ furnishing admissible, ‘Evidence motive is tending one link the chain of to estab- circumstances, guilt, showing but motive, lish mere uncorroborated other facts inconsistent inno- and circumstances prima-facie showing cence, is not sufficient to authorize ” defendant’s, guilt jury.’ submission Singleton

In Ruckman from aside cases, proof point- fact or motive, there was no circumstance ing guilt.- In toward defendant’s instant case the ample proof homicide conceded. There of motive is is conspiracy. told that he McIntosh going and make Johnston were to return Missouri whiskey; only Moody man that could Sil plans kill “we” him cause them laid trouble; lived, on John- when defendant before; once “that was Moody place;” hear be- ston’s would that McIntosh MISSOURI, COURT OP SUPREME unnecessary ing if interfered. It re- killed peat this feature case. evidence on *14 after the an hour homicide was committed

About Gray an in front of the house, found overshoe his following morning gate. he found mate near front its his Moody’s going or- from to Johnston’s house One dinarily pass by Gray’s would Gray these delivered

house. Crewse, to sheriff on 24th. the overshoes the December put despite initials on them the inabil- and, his sheriff, Gray identify they ity them at the trial of to because did by posi- they him, not look as tively as those found were new Rayburn, by Mr. the the sheriff and identified attorney. question identity of was a Their by jury. fact the The worn for shoes Johnston when imprint had the tacks arrested been half-soled. of imprint in of the heels the soles as well the rubber compari- in of the overshoes at time found That the son. tracks where outside window made these overshoes was established shot were jury. from the Indeed, to the of the citation satisfaction appellant’s brief, from does not to be con- this seem clearly of establishes, tested. The direct evidence out conspiracy of a motive and defendant, mouth Moody. applicable a con- kill Tested the rules where solely felony evi- on circumstantial viction for rests opinion justified are of the that the evidence we dence, finding guilty in the the in The demurrer to count the indictment. second of properly overruled. evidence was assigned permitting re- Error the State in V. Pasley testimony the witnesses buttal to offer the objection before the trial over the court wife, prose- begun require sustained motion cuting attorney all to indorse names UndorsemenU of indict- on the for the State witnesses Witnesses. defendant and his because the ment, sixty fifty where the homi- attorneys miles from are opportunity no secure have cide occurred as- not in did terms Counsel of witnesses. attendance APEIL 517 TEEM, sert these not indorsed names witnesses were They may but true. indictment, on the assume application delay countervailing made to secure surprise. any showing prejudice or In evidence, nor from, testimony fact, heretofore statement of appears set in at- out, it the defendant had witnesses testimony of tendance who offered refute Pasley. ques- Mr. Mrs. have considered this We Barrington, S. W. 23, tion State v. other Lawson, Mo. S. W. opinion are no merit cases and there is contention. Appellant objected

VI. Albert witness McIntosh as to statements made defendant to (defendant) whiskey and Johnston would make prejudicial, peddle would as irrelevant it, *15 Evidence part conversa- defendant’s This was of Motive. tion with witness which the whiskey and he make the conection said that could same Moody only could them the man who make Silas was McIn- killed he and was trouble and if interfered prove motive, tosh hear of it. admissible to would It was Objections Moody. conspiracy kill and threats properly over- other similar witnesses ruled.

n jury murder in the on The court instructed VII. jury degree on case to and submitted the the first hypothesis and mur- killed that Ernest Johnston the defendant dered Silas , „ Instructions. .<? accessory as tact, before the an and that indictment, count of in the second not they the defendant they find should found so unless murder gave on guilty. court also an instruction The by evi- degree. authorized This was the second dence but was harmless. jury de- gave instructions court 'The connecting (50 if there was

fendant: Moody, deceased, killing of Silas with the the defendant SUPREME MISSOURI, COURT OP they other than the threats or declarations in evidence, guilty; (6) find should him not an instruction on alibi; (7) an (8) instruction on circumstantial evidence; an good (9) cautionary instruction on character; in- by struction on verbal made statements the defendant, (10) proof, an instruction on the burden of presumption of innocence and reasonable doubt.

The given, on instructions alibi should not have been notwithstanding tendency but, its to mislead and confuse, jury plain implications understood the instruc- given they tion for the State that if found defend- ant incited or induced Johnston shoot and kill the necessary it deceased was not should have been present aiding abetting at the time the fatal shot was exception fired Johnston. With the of this instruc- alibi tion on and the instruction murder in the second degree, correctly upon court instructed the all questions arising necessary in the case far so for their giving information in their verdict. court refused other asked instructions defendant. One about through near tracks found the window which the shot was fired comment on evidence; one on subject properly alibi, refused; three presumption eight on the of innocence, and on circum- properly stantial evidence. The last eleven were refused already given. were covered those Complaint VIII. is made that at- torney closing argument in his said: “The defendant liquor part something it he here, but the never denies denied.” The prejudicial complaint *16 argument. improper the The defendant took witness making any to kill stand and denied threats by and also de- State, the witnesses for testified any complicity not, He did however, nied the crime. whiskey, making making deny tes- about statements parcel part by witnesses, tified the conversations. argument,

Appellant’s brief and counsel in their say:. reference to submitted with “All APRIL, TERM, 1925.

Bank v. Bank. whiskey the manufacture was submitted with the killing idea it the motive of the of Silas Moody.” viewpoint From their the remarks of pertinent and relevant and prejudicial to the defendant. defendant vol “When untarily in his behalf, testified own counsel for may closing argument on his fail State comment explain damaging by him ure other facts attributed [State 225 S. Murchie, witnesses.” v. W. Prunty, 106. See

Drew, W. also v. S, 91.] W. assigned in the all errors brief We have considered appellant’s assignments in counsel. Other learned merit. The case was motion for new trial are without supported abundantly sub- well tried. The verdict is judgment accordingly af- is stantial evidence and sitting. Railey, firmed. G., not opinion foregoing

PER CURIAM: The ITigbee, opinion adopted All of the C., of the court. judges concur. Appellant, BANK OF

COOPER COUNTY BANK, BUNCETON. Two,

Division October Question: Abandon- 1. APPELLATE JURISDICTION: Constitutional court, is question, ment. the trial raised in a constitutional Where ques- by appellant respondent, appeal, whether abandoned on case, Supreme longer without Court is if the tion is no grounds jurisdiction transferred case must be on other proper appeals. court of defendant, Respondent. Where -: Abandonment/ -:2. $5500 for note the sale a contract for to rescind a suit things, among same, pleaded, securing other deed of trust the note was prohibiting to execute the maker statute upon appears indicating nothing record in the unconstitutional, appeal defendant, ground judgment what was rendered