*1 442 (2d) 132. S. W. Appellant. Nasello, State v. Carl Two, June 1930.
Division *4 Tipton appellant. Edward J. Curtin E. M. for *8 Shartel, Purt&et, Attorney-General, and Assistant Stratton Don Attorney-General, respondent; & for Otto Potter counsel. *12 Court filed in the Circuit C. In verified information
DAVIS, attorney, defendant County prosecuting of Jackson killing degree with the charged with murder first others were taken, Upon severance James H. Smith. one guilty murder jury. jury to a verdict tried information, punishment charged in degree, the first as trial, unsuccessful motion for a new assessed After an was death. judgment De- accordance with verdict. the court entered appealed. fendant *13 find- of warrants
The submitted behalf the State the evidence on County in Jack- ing that, 14, 1928, City, Kansas the of on June at Street, operated 1117-19 Company, Walnut son, the Home Trust at nine-twenty a banking Between and on nine-thirty institution. banking employees institution of morning, while the officers and the duties, six revolvers men, were about masked and with their five appeared once a shotguns, foyer in of the institution. At and the holdup.” up! real heard, “Hands This is a command president floor, on face and officials were to lie the other ordered foyer. a down, in partition behind One of the men a the went to money. observed, cage kept When in which a teller he first eyes by face cloth, from his down was covered a mask of but his immediately hung his fell from his face and around thereafter it employee neck, An the with his face observable. of the bank in deposit cage making teller’s and a customer a identified this man during gathered up money trial as defendant. Defendant the the cry being cage, upon they gassed in the and the were due foyer by employee explosion gas of tear-bomb the an a into leading below, departed steps on-the from the basement the men $19,000 money, Liberty- forthwith. Over in and in addition some coupons, On bond were the street in front of taken. the institution robbers, leaving in a Buiek coach. upon confederates sat which company, trust coach in their boarded confederates awaited them, proceeded which north on Walnut Street few then some blocks n until discovered was later for nonce. The coach trace of was lost it in used garage was. identified as by Messino. It in a rented which was street, by found in the escape a door-handle broken testi- sign. Various witnesses knocked off traffic by contact with a a leaving the‘holdup, ran at fied the scene- of coach on thirty-five As the miles an hour. speed rate of from fifteen to of shotgun revolvers, a and ran, occupants ear its brandished sawed-off along At Eleventh the street. gun, machine and fired in the air charge of Smith, in police officer H. and Walnut streets James Buiek north. traffic, occupant of it some as went shot the_ right of his side bullets, buckshot, penetrated Small to be said day. hit causing Bullets also neck and the same chin, him to die firing. of car woman in the line As the young and wounded a acquainted sped north, were witnesses, two who occupant
by sight, Buick. One of the him an of the identified as Buick, front of the witnesses men were in the seat said that three right-hand door, with a revolver and that defendant sat next to the police Capshaw, hand, shooting. in At and Walnut officer his uniform, Tenth leg. in in was shot city detective 15, 1928, day succeeding
On holdup, June Browning City, bungalow a vacant in southeast Kansas searched Municipal gun, near Farm. a machine He there discovered shotgun, revolvers, for masks burned ammunition, material coupons taken coupons. charred The charred were identified as There 1928. robbery from the of June company trust bearing 552981. revolver number was also found a Smith & Wesson from passed 26, 1927, It was shown that on December revolver this manager possession Theatre of the assistant of the Main Street possession defendant. to the participate show that did
Defendant’s evidence tends to he not company, he an oc- robbery in the of the trust and that was not getaway. cupant Buiek which the robbers made their morning robbery tends to show an alibi. On the It war- eight- finding family, he ate breakfast with his at rants the children. thirty, presence brother, sister and her two his *14 eight-fifty Defendant his about left his sister’s and brother M. A. Avenues. and father at Fifth and Troost The
home met their Walnut, Fifth three of them then to and defendant walked where his and went into a barber shop, left father and brother given barbers, or in haircut, shave and shine. four a three negro there number, and the bootblack testified arrived he shortly nine-thirty shortly or their after, about before or but m., a. definitely.' testimony rather the than fixed it Other estimated time germane raised, if to facts, any, issues will adverted the be to ,. opinion. * 3230, 1919, killing I. Section Statutes Revised defines a 458 first robbery in the during perpetration
occurs degree. of a murder an killing admissible under Proof that so occurred is usual and or information indictment 107, Meyers, 99 form. v. common Mo. [State 527, 516; Brown, 12 S. v. 119 State Mo. W. Foster, 200. 1027, S. 25 v. W. S. W. State 136 Mo. 653, 38 S. 292 237 W. 721; Peak, 249, W. State v. Mo. S. 466; State v. 316 289 Adams, 157, Mo. S. Proof W. 948.] together conspired defendant and unlawful others to commit an act and killing conspiracy carrying occurred while out the may also be shown under such an or information. indictment [State Carroll, v. 406, 288 232 392, 699; Mo. S. 296 Parr, W. State v. Mo. 246 W. S. 903.]
II. evidence, It is said that under entitled, defendant directed acquittal, verdict of because evidence the 'State’s second, establishes, first, Smith; that defendant did shoot kill not conspiracy that no between and others defendant hill Smith shown. instruc According to the theory tions, trial suc that, the State was ceeding robbery, the bank executed an others understanding design anyone or common appearing to shoot and kill to be a escape. menace to their adequately The evidence adduced sustains theory prosecution. the trial developed The evidence an conspiracy unlawful to rob company, the trust which included design common the any escape kill the loot and to shoot and person appearing to escape. interfere with their Thus homicide of conspirators Smith occurred while the participat were ing robbery (State of the bank Turco, v. 99 96, N. J. L. 122 844; Atl. McMahon, Francis v. 175 State, 675; N. W. v. State 145 672, Wash. 261 639), Pac. resulting that de instructions fendant acquittal submitted for properly were overruled. In this connection, in v. Lewis, State 518, Mo. W. 531, l. c. 201 S. say: the court “We hold all the evidence in in case, cluding the killing clearly circumstances of the of Dillon, shows conspiracy to murder whenever necessary in the de course of stealing.” fendants’ business of III. only place in the robbery instructions that a is mentioned 1, defining is in Instruction degree first murder. reads: “Mur- It der in degree wilful, first is the felonious, premeditated deliberate, killing of a human being and with malice afore-
thought, or any homicide perpetration in ’ ’ attempt perpetrate any robbery. However, Instruction shows the cause was not on tried the theory that killing during Smith robbery. occurred
459 de- others and defendant theory State was The trial of the their menace to Smith as a together MU liberately conspired to that he submits escape. On of record defendant this state the first, grounds: second-degree-murder on two instruction entitled to a second, unless the it; requires 3232, 1919, Section Revised Statutes per- Mlling in the theory occurred cause on that the was tried the pre- 3230, the petration stated in Section of one of the crimes degree. in second sumption any homicide is murder obtains in “Upon trial of an (a) 3232, part, in reads: Section inquire, jury must degree, for in dictment murder the first court, ascertain, instructions of the and their under the verdict murder in the or second guilty whether the be of first degree.” fifty years pre period ruled for of We have a second-degree- ceding require a may section not be construed to evidence to murder whole tends establish instruction, when the nothing degree v. in innocence. except murder the first or [State 118; Merrell, 71 263 Hopper, 425, 430-431; Mo. l. c. v. S. W. State 518, Lewis, 273 Yeager, (2d) 30; 12 S. State v. Mo. State v. W.
(b) attending homicide depends upon circumstances It de whether the shown in first or second crime is to be murder 1037). (State gree 262 Hayes, 1034, W. l. c. In v. v. S. State ruled 518, 80, 201 W. the trial court Lewis, Mo. S. degree, facts in limited the instructions murder the first ruling. attending circumstances
and this court affirmed nothing others, escape show that defendant with less than and any conspired person ap loot, their kill deliberately to shoot and they pearing escape. to hinder in their The facts show that them and deliberately planned killing in cool of state blood justify carried an instruc it into execution. The evidence did not involving degree. tion in second murder found, IY. Williams, 434, may In State v. 274 W. l. c. be S. In reproduction some of the State’s changes, immaterial you connection, in struction 2. are part: It “In reads this find from evidence you if believe structed that understanding agreement be existed an case there Tony Man Nasello, Messino, John defendants, Carl
tween other them, aid and assist each any others, or gercino, information and in the in the mentioned crime commission ” for a to be vicious instruction is said . . . evidence. proceed to determine. we reasons, which number of contention, 427, disposes 274 W. Williams, S. (a) v. State erroneous because instruction is defendant, adverse further con- law. We need not proposition abstract mere a is question. sider the *16 , It
.(b)
that,
is said
because tbe evidence shows the commission
-of
other
hilling,
crimes
confederates,
such
his
as a
and
robbery,
a
carrying
the
weapons,
firing
.
concealed
and the
of-
of
-
street,,
in the
jury
per-
the -instruction
and
confused the
firearms
n
as,
mitted them speculate
to
the
informa-
to
crime mentioned
the
tion and the evidence. We do not think so. The instruction directed
the attention of
jury
only
the
to the
crime mentioned both in the
information
killing
and the evidence,
conspiracy
the'
Smith.
of
A
any person
kill
unlawfully,
if
necessary
convenient,
deemed
or
to.
coupled
killing,
though
with the
even
particular person was
unknown or
of,
unheard
is deliberate murder.
did
The instruction
jury
not confuse the
permit
or
it
speculate, as
to
to the
in-
crime
tended.
directly
It
referred
killing
to the
of Smith.
(c) The instruction is
to be erroneous because
referred
.said
it
the, jury to the information to determine the crime committed.
juries
Instructions
that have referred
to the indictment or
in
formation to ascertain the facts and issues have
been condemned.
v. McCaskey, 104
[State
Mo.
511;
16
W.
644,
S. W.
Constitino,
State v.
181 S.
1155;
However,
jury
16 C. J.
as
must have understood
the.
968.]
killing
that the crime
mentioned
referred to
information
Smith,
of
jury
we do
think
per
were confused or
not
misled or
speculate.
scope
mitted to
think
We
the matter falls within the
of
rulings
397,
Murray,
found in State v.
91
3
Mo.
W.
S.
.
Nevitt,
and
v.
State
one of the “or one them,” meaningless, qualified others,” it words, unless “and By immediately preceding it. it did we think That so is evident. compelled Messino, jury Nasello, the instruction the Mangercino were to find that any conspired and one of others to kill Smith. greater necessary, burden placed instruction a on the than State finding required Nasello,. Mangercino a Messino for it that and were might conspiracy others, prop- members in addition to when it finding erly a required Nasello, hand, on Mes- have the one and Mangercino, both, hand, conspired together. other sino or on the permitted properly jury instruction Another to find defendant guilty if, acting either alone or concert with another, Smith regard, conflict, killed. While instructions in seem in yet greater placed a as Instruction burcLen on the State than bear, becomes immaterial. required any to the conflict In .was jury they think understood that before event we could convict doubt beyond they a reasonable defendant, compelled find were to conspirators. that he was one of the be- error
(e) contains Defendant contends that the instruction come robbery had unequivocally cause the evidence shows finding that end, justify to an because the evidence does not conspirators have agreed escápe. We to each aid. other con- escape was a held heretofore of the gestae res within the tmuation fur- have company.- We robbery trust any appear- one ther kill conspiracy held existed shoot ing each other escape, to aid and thus interfere with their say .assignment escape. further than to We need not discuss the *17 of prior the act that is moment that -to it immaterial and of no suf- escape company was asportation trust property of of the bring robbery existence: ficient to into offense (f) fired show that he Defendant avers that the evidence fails to consequently, shot, by Messino, and, fatal fired but that it was lacking conspiracy between defendant evidence is a existed that defendant Smith, Officer or that
and °^ers
necessary to
knowledge that
intended or
it ivas
had
contemplated
robbery plans
Smith,
that
or
shoot
deliberately,
feloniously, unlawfully,
shooting,
such
Smith was
or that
brandish
aforethought
The
shot.
premeditatedly, or
malice
with
by
shooting
defendant and
promiscuous
ing of firearms and the
conspiracy
a
Buick
occupants
other
coach were evidence
of the
interfere,
appearing to
with their
any person
kill
to shoot and
shot
fired
fatal
escape.
necessary
defendant
It was not
that
con
for,
a member of the
if defendant was
guilty,
to render him
conspirators
by any
spiracy,
responsible
any
of the
he was
for
act
particular
conspiracy,
or not the
done
of the
whether
in furtherance
Parr,
defendant.
v.
act
contemplation
[State
'de
show that
The evidence tends to
406,
Mo.
(g) criticizes the instruction Defendant In ignores of alibi. thorizing guilty, it the defense a verdict acquittal defense separate if an the- instruction court directed sub by On this sustained Avas alibi evidence.. say: ject 691, 694, l. c. Glass, v. 300 S. W. we in State civil.,cases in ought That an apply: “The rule authorizing without case, a verdict- whole covering struction error, support, is there is evidence to Avhich defense reference to given embodying that instruction be cured, if another is but they if believed the fully understood jury defense.” they acquit must defendant,- him. alibi of: evidence sustained argued phrase, “in the manner 3, V. Instruction It is information,” per-mitted im hy the means mentioned some of facts find essential jury determine the issues and
from the facts stated in the information. We think the instruction was favorable to defend- ant, jury they for it told the must find beyond defendant, a reasonable doubt alone, knowingly acting others, either deliberately, etc., in concert with another or l\~toreover, killed Smith. the information was read jury. charged, form, to the It in the usual and common degree killing with first murder for the of Smith. The manner killing alleged and means of the as in the information was with charged gunpowder firearms and leaden bullets. The instruc- jury. Analogous support tion did not confuse or mislead the cases ruling. Murray, 397; [State our v. 91 Mo. 3 S. W. State v. Nevitt, 337.] 270 S. W. (a) theory killing VI. of Instruction 6 is not that of a occurring during perpetration robbery, of a which Section 3230 degree murder, theory defines as first but the is that of a deliberate killing. oniy Defendant not denies that the evidence deliberation, shows but denies that it shows that de- killing tenctant was connected with the of Smith. In view of these premises, he contends that the instruction constituted error. We preceding paragraphs opinion have determined in of this *18 killing evidence establishes that defendant was connected with the through conspiracy of Smith the of which he was a member to shoot any person appearing escape, and kill to menace their and that the conspiracy to shoot and kill shows calculation and deliberation. questions We need not discuss the further. (b) concluding portion of the instruction reads: "And upon prove wilfulness, while it devolves the State to the delibera tion, premeditation aforethought, and malice all of which are neces~ sary degree,, yet to constitute murder in the first proven by evidence, these need not be direct but may be deduced from all the facts and circum~ attending killing, jury satisfactorily stances reasonably the and if the can and evidence, they infer their existence from all the will be finding guilty warranted in the defendant of murder in the first degree." consistently We have ruled that an instruction on circumstantial proof develops evidence is not warranted if the direct evidence of charged, [State the offense kraus, as it does in the instant case. v. Stein- 877; Crone, 316, 244 Mo. 148 S. W. State v. 209 Mo. 555; Lowry, (2d) 469.] 108 S. W. State v. 12 S. W. Notwith- standing, defendant contends that the instruction is erroneous be- A correctly cause it did evidence. read- not define circumstantial ing of the was not intended as a instruction establishes that it instruction; consequently definition circumstantial-evidence Wilfulness, such necessary or warranted. evidence was not de- concepts liberation, premeditation aforethought and malice are mind, ordinarily only by the which are shown deductions from the purport facts cover and circumstances. The instruction did not kill- conspiracy the attending facts and circumstances the and the ing, merely jury wilfulness, etc., but told a state of the that may mind to facts acts, be deduced from deduced from be and purport circumstances evidence. As instruction did not defining cover evidence, the field of circumstantial of it required. fairly not jury they fully It and understood advised purport its meaning, we think. (c) argues require instruction did Defendant that not
jury wilfulness, beyond etc., doubt, to find a reasonable but permitted satisfactory jury merely find them from rea impossible It is seemingly evidence.
sonakle instruction, every phase of case in cover one whole, instructions which and, reading as a they fully that, done, jury understood before must be we think the defendant, they must that he find were authorized to convict Ross, 300 beyond S. W. guilty doubt. v. a reasonable [State 785.] regard jury unequivocally In 3 informed this Instruction guilty charged they murder as find defendant before could produced to they find from all the evidence information, must alone, doubt, defendant, either it, beyond reasonable and that wilfully, others, knowingly acting in concert with another or purpose on intentionally, deliberately, premeditatedly, aforethought Smith. malice killed hypothe- an
VII. assailed. It is instruction Instruction is informing jury After sizing defendant’s defense of alibi. place if in another and different guilty
defendant was not he was alleged was committed at time than that at which the crime “in committed, was, said if it it then tells them that crime you if you a reasonable this connection are instructed have presence place the time and where of the defendant at doubt ’’ committed, you was, you acquit will said crime was if believe it him. *19 places instruction is that the burden on
The criticism of this it beyond a prove defendant to reasonable doubt he not was present place was at time and where the crime committed. De- the 747, 256 Hayes, S. W. his fendant cites State sustention of v.
position. reading A of the in that case files shows that in- the structions are not all similar. there condemned at The instruction any jury if have criticised directs that the here reasonable doubt question, they must occasion in on the presence as to defendant’s fully protected only proper,
acquit but him. was not instruction regard. in that defendant gone “D” should have says his Instruction Defendant also presumption jury. The involved instruction to the an(^ fully As the court reasonable doubt. i-nnocence error subjects, not these it was jury on the instructed the instruction offered. to refuse objections Practically all the of assailed. VIII. Instruction is against contentions
urged the were determined this instruction to not we need Instruction of of defendant in our examination it, concept again them. But settle Smith, is attacked alone killed defendant neither contains ground that record on the fired personally that defendant nor circumstantial evidence direct with does show evidence not Smith. The the shot that killed Buick shot coach occupant of certainty particular occupants certainty of Smith, that some one it but does show right as it of coach shot to the and killed him. Smith was right- northwardly. only had door on the traveled coach one to band sat it. The evidence tends side and defendant next to door show had foot outside that the man that shot Smith one right-hand running board. This was sufficient to on the evidence justify jury finding Smith, and killed even that defendant shot certainty. may, though was that as he not so identified with Be understanding design pursuance Smith of an or common killed any person appearing conspirators’ menace shoot kill escape. Taking dilemma, guilty horn of defendant either degree according first murder to the State’s evidence.
It conspirators is asserted Smith if another shot from spite ill-will, purpose or effectuating and not for the their escape, responsible the others cannot be held for the evi- act. The nothing dence does premise. not warrant It tends to show than else that Smith shot conspiracy in furtherance of the conspirators’ effectuate escape. IX. called father, Defendant to the witness his stand Joe Nasello. testimony, defendant, ITis on examination, direct was favorable to alibi, tended an show to the effect that could
n°t have occupant been an Buick coach at time Smith was On shot. cross-examination denied he living at 1105 Tenth East Nelson, Street as Joe paying thereon, rent place. but that he often admitted visited keeping He denied under woman there the name of Mrs. Nelson.
465 de- ruling', question an repeated, whereupon, was adverse question objected not' answered. excepted, fendant and but the there admitting going eating’ sleeping there, also He denied and but (his because deceased), often J. wife to see Mrs. A. Nelson objection she was ill and needed assistance. There was no stated questions. being cross-examination, he latter On recalled for together occasionally specified that Mrs. at a he and Nelson dined Mrs. cafe, employees but Mr. denied that the' knew them as Nelson.
If admissibility specific tend time, not- too remote in of acts ing testimony largely impeach disparage of a witness is n within in the discretion of trial court. stát'ed The rule is (af Muller Hospital 390, v. St. 5 401 Assn., App. Louis l. c. Mo. in 242), reading:
firmed 73 Mo. “When cross-ex witness is amined, may, questions in he addition to referred hereinbefore questions to, any be which asked tend to test his accuracy, veracity,- or credibility, injuring may by or to shake his credit his character. He any compelled, question, be such to answer however irrelevant may disgraceful be to facts in issue, and however the answer may might himself, expose be to him except where the answer ato 319; charge.” criminal 250 Smith, 350, v. Mo. 157 W. S. [State v. 201 Long, Moreover, State Mo. 100 W. S. witness 587.] ground did not exemption might claim his answer tend on Long, supra.] to incriminate him. -v. [State
X. Subsequent testimony Nasello, to the of Joe detailed in as preceding permitted paragraph, the court three State witnesses testify objections de- rebuttal, exceptions in over the
fendant, dined occasionally that Nasello and Mrs. Nelson together College Cafe; they supposed at the he they Nelson; husband; her Mr. not called him that he did deny although they his Nelson, name was did not know whether name, nothing; he understood the as he said they and that were in infrequently. the restaurant testimony
As Nasello’s on direct examination as to his relations matter, by Mrs. Nelson -was collateral the State was bound permitted the answer of the witness. court should not have testimony in the introduction such rebuttal. rel. ex Horton [State However, (2d) v. 9 Clark, 635; Cox, S. W. v. State S. W. 215.] cross-examination, Nasello admitted on least, effect at all matters rebuttal, except from the they elicited witnesses known were in the as Mr. Mrs. Nelson. proof cafe The record contains no anyone Nelson, that defendant told that his name was he or that recognized employees understood or the cafe called him Mr. testimony
Nelson instead Mr. Nasello. The rebuttal did not impeach fact or discredit the evidence of the witness. are We rebuttal influenced jury were unable to surmise that them actuating The influence reaching evidence in their conclusion. *21 de- of cogent to the identification strong the as and evidence coach Buick during and in robbery fendant the in the bank the prej- erroneous, not subsequently. evidence, while rebuttal The udicial. owned (a) if he
XI. asked cross-examination, On defendant was inquired whether answered, an "No.” The State automobile, and he belongs to replied, "No, sir; now it coupe, he Buick owned a and he let not that his would stated father iatfier.” He it may have driven it, said that he him drive but driving the Smith day denied or twice. He once suc day In rebuttal day before killed, or before the that. the Maddi, Victor Buick was sold to cessive that a witnesses testified it. purchased with him when he that and others were defendant later still Hupmobile, and Later Buick Maddi traded the for a had a One said he Hupmobile for Buick coach. witness traded the him although driving Buick, had seen never seen he defendant show proof driving a sedan. rebuttal tended to Hupmobile repossessed, that the payments, Maddi failed to make that Buick was title and that Nasello came the transaction and obtained Joe into coupe. Buick to he While the Hupmobile, which traded for a foreign any rebuttal immaterial, was so issue evidence was it any on defendant case or to connection of the with the offense trial as have non-prejudicial. Certainly jury to be could not by determining guilt. been it in influenced defendant’s (b) objection Higgins, In rebuttal Officer over defendant’s that it was immaterial, testified that he had seen defendant several driving Certainly times Hupmobile car. this immate evidence was it
rial, but, impeach as did not tend to defendant, it can- held, (a) for 110^ reasons stated in subdivision paragraph, prejudicial. Higgins this Later was asked question, you "Did talk with him at either time?” and he re plied, "Yes, sir, I arrested him in this car.” On motion evidence it, jury disregard was stricken instructed out and the but discharge jury was denied. The statement the officer arrested him did not establish that defendant was arrested for turpitude. an may offense of moral It have traffic been for a city violation may, speculate of a ordinance. it Be that as we cannot jury disregarded the court’s instruction. Lacey XII. recognized witness State’s testified de- that he during occupant escape fendant as an coach. On Buick cross-examination, objections inquiries were sustained to defendant’s respect Lacey’s wife to a divorce obtained
Avith women, ground on the with he associated lewd respect and with his with association lewd women prior to the divorce action. The court stated he permit would respect witness to answer to his association lewd with prior women action, the divorce but defendant did take not ad- vantage petition it. As .to the substance of divorce decree, objection seemingly the court sustained an parole as to they evidence of showed, ground what on the was not gave best evidence, and produce time to the records.
The record fails to show that defendant offered any records of kind regarding petition decree. Under the error circumstances, as to assignments these was not sustained.
XIII. assigned Error is give because the trial court failed to *22 converse instructions to the jury, none, but as defendant offered the court regard. did not err in that Moreover, instruc a converse given effect, concludes, tion was in for Instruction 2 ’’ you and find, you acquit unless so will
‘‘ the defendant. 82, v. 287 Mo. Dougherty, 228 S. 786;W. State [State 279 Cardwell, 140, v. 312 Mo. S. W. 99.] at- opening XIY. In his jury prosecuting statement to the the
torney “They charged said: ‘Happy’ are all with the murder of Smith. A taken. of severance was Two them have been and tried defendant, Nasello, this Carl one is the third gang
°f that bandits . up held . . that objection The trial sustained court defendant’s discharge jury. to the statement, but refused to It asked the was then attorney prosecuting inquired, that reprimanded, the be and he “Referring “What have I done?’’ counsel answered, Defendant’s reprimanded to him as I a bandit. that and admonished ask he be again not prose- to use word the ‘bandit’ in that manner.” The cuting attorney replied: certainly “I will the use word ‘bandit’ ease&emdash;there way in the trial the it is no can be without tried using objection it.” The court overruled an the statement and to request discharge jury. a Defendant pre- the asserts that the ceding prejudicial occurrence constitutes error. alleged
On only before us the record errors to be reviewed are prosecuting attorney “bandit” by use of word and discharge jury. prosecuting the refusal of the court The attorney should not refer to a its the defendant as “bandit” or equivalent, by Henwood, a C., “robber.” It was said in State v. 397, Harmon, 354, 296 language Mo. S. W. in forceful that: unbecoming epithets “Applying names or to a man or on woman dis- always looked with trial is never This has excusable. court in prosecutor and favor of a part on this kind conduct on the con- many prejudicial sufficiently such instances held conduct in must, question which However, stitute reversible error. this is each nature of the connection with the instance, be considered in in- all of the case, all in the facts and circumstances evidene referred cidents of A trial should be the tidal.” defendant on that defendant, by as understand man, person name. We preceded usually English by name trials defendant is a reference to by appellation However, context “Mister.”- shows prosecutor descriptively and with merely to defendant referred cogently was proof decorum. tended to show in- jury Consequently bandit. we cannot believe that only defendant, fluenced the statement to convict but .considered regard. Thus, opinion, our statement evidence in prejudicial. nor was neither harmful Meyers
XV. Smith a certain deponed State’s witness posses- & Wesson revolver, evidence, passed introduced in from his 26, addition, sion to that 1927. In of defendant on December revolver tended to show from in a loot taken discovered cache testimony Meyers’ robbery. bank in the presence in the bank admissible, with defendant’s in connection partici- tending was a that defendant coach, the Buick to show as Competent, pant to kill Smith. relevant conspiracy held trial, cannot evidence, offense on be material correlated to the guilty of another inadmissible, show defendant tends to because 264 Mo. 175 W. Sherman, S. and different crime. v. 73.] [State *23 his permitted testify to XVI. was to as “Happy” wife Smith’s City, in place years he resided Kansas birth, the number of age, police on employment of his arM that, tend to show record does not The force. by her stand or on the witness presence her prejudiced in this case. inflamed testimony, jury were testified defendant examination, brother of XVII. On direct question weight. cross-examination this lost On had defendant that weight&emdash;-howmuch say “Q. your brother has lost You asked: ^13 kas ^een year Mre tlle Mme ^Ml?” question with objection defendant’s On to not consider jury instructed and the drawn charged persons that knowledge common matter It is a question. occurrence fails to The show jails. confined are offenses obtained. error that
1930] question. XVIII. On cross-examinationdefendant was asked the your question coupe pur
"Isn't it by car'?" The related to a Buick repossessedby Maddi, chased Victor which wa~ the vendor and purchased by later defendant's father. It was not coupe shown that the Buick waa used in the rob bery escape. of the bank or the The defendant objection objected attorney arguing said1:1 prosecuting and us he case, him; for wants “Alibi this point is the essential think to account for morning, to on that and he walked on crutches driving he time; coupe, we Buick that show, will as to the day and driving day, day seen in it it, and was that it.
before, it and.we have it, nobody him, but that he and owns and owns him right by asking him, and let .lay first, to the foundation In jury prove him.” it to talk, bring witnesses before the to to opinion produce any tending our evidence State failed to coupe he Buick was ever show that owned the or that defendant prosecuting attorney, driving if seen it. of the The statement it to any against effect, to State because failed tended react prima-facie show which would be established. was said nothing than of what the State statement was more a statement expected sustain, which prove, which the State failed (2d) 24 S. prejudicial. Rowe, v. W. cannot be held be [State 1032, l. c. 1037.] - “Q-. following
XIX. On the cross-examination the occurred: you Yes, Q. fugitive Do know Victor Maddi ~? A. sir. He is a from juStice, oljected, isn't he'?" The defendant and the court said: fugitive justice "Unless the matter that he is a from up way, part can be connected in some is if knew entirely You can ask him he immaterial. attorney connected said: “It will be man.” The
the up; prosecuting produce because witness, him a why cannot as will show we state-ment, objected justice.” fugitive The defendant from he is present “That stricken out for ruled: is the court jury’s consideration.” We need and withdrawn from the time only question that the court say further than to not not consider the defendant failed to save asked, but all did court. exception ruling of the an to the objected portions argument XX. The defendant to certain of the prosecuting attorney. portions complained of are too *24 lengthy However, to recite i~ lzaec verba. we will re- gist sufficiently intelligible cite the of it to be to the reader. guilty would penalty he said that he be asking death as the
(a) In fatal shot if he did fired the not believe pf any man that as murder beyond in not if know mind, his own heart and in his own he did of gang that this doubt, guilty; a reasonable is that defendant stopped or murder highway robbery up, bandits cannot be broken juries, by being easy of them; help with the aid and that County very short banditry up in in would be broken Jackson argument time. no portion To this the defendant made of- objection nor not exception, saved an and the matter is therefore open to consideration. (b) argued attorney jury prosecuting Thereafter the to the that if they left, families; when it up to them to face their that they him innocent, duty acquit believed but him, it their to they ^ him guilty, it was for believed their then wives, explanation
conscience make the to their to neighborhood citizenship families, their their county. argument opini'on of goes This no in our than further telling jury guilty, then they if is believe the defendant duty Moreover, any it is their error to convict him. if there was by argument, ruling in “The it was cured of the court: jury discharge duty, explain will any- their and do not to have to ’’ body.
(c) exception argument objection defendant, Over the of you was resumed: right, gentlemen, “All if is believe this man you guilty and do I penalty not assess death won’t have to explain anybody that to I have on the face of the earth. will not explain to it to Jackson people County; will of I not to have explain my God; explain to I my it will not to it to wife; have I explain anybody won’t to room, have it in court I this because punishment everything have done in my power to mete out the ought this defendant be him, only meted out to not on his alone, doing my account but on the account of others. I am all in power, these detectives have been here have all done power-&emdash;-somebody their pointed sitting out the chief a while here now&emdash;he ago&emdash;I him stop don’t see has done all in his power, to banditry City, murder and stopped&emdash;and in Kansas and if it is not it&emdash;if weigh my I say you words well I stopped, when it is not responsible (The twelve men are not being it for done. objected attempt an jury as to intimidate asked overruled.) be withdrawn, which the go court You out your and do duty you you telling as see it. I am thing it, about this Ias see say I at it, again, as look and I if guilty, loose; he is not turn him if is, bring he kind of verdict that red-blooded American ought citizens of the Heart America bring in.” phase argument One prosecutor, provided they be- urged guilty, lieved the defendant penalty the death war- ranted only evidence as he viewed Moreover, it. he not informed responsibility them that them, rested on but advised
471 duty they them to saw it. If jury do their as believed duty guilty, verdict, was their to return such they urged, that was all if prosecutor asked, except that he found, any so penalty. the death ¥e unable to see vice in are argument, urging for he in it. was warranted phase argument suppress
The other of the assailed relates to the ing responsibility banditry of murder and City, Kansas and the of jury argument to relative thereto. The effect of the prosecutor evidence jury believed the
advise defendant, of and that warranted the conviction banditry rest responsibility suppressing of murder and guilt produced cogent to them. upon juries, evidence of ed when 139, (2d) Lynn, 23 S. W. subject, in State v. said, on this It was right urge jury up 141, prosecutor l. c. has the “The of inferences as to the effect law, proper hold draw Marshall, uphold law. v. jury to the failure of the [State appears respect error 413, 297 W. No Mo. S. 63.]” prosecutor. argument of assigned paragraphs XXI. cover the errors preceding record addition, have examined the In we the brief of defendant. for assignments motion of error an<^the
Pr0Per> un and, consideration, due we trial, after are new therein. any error discover able to ordered. is so Eemwood affirmed. It judgment must be Cooley, CC., concur. C., adopted foregoing opinion
PER is CURIAM:—The Davis, judges All concur and date opinion court. as the July 1930. 25, on and for execution ordered City Smith, Executrix of Estate v. Fredericka of St. Louis Henry (2d) 729. Appellants. S. W. M. Smith et al., Two, June 1930.
Division