*1 485 guilty not had' testified and asked the direct verdict court'to not if' jury of the instruction’s believed’ The refusal them. by instructions other error. been submitted The issue had ultimate Ledbetter, which fair is to the defendant .said error (2d) 454, 332 is 453, Mo. 58 S. that it reversible 225, W. are the by which defendant, offered
refuse instructions correct in instructions, State’s unless the principal converse State’s on issues clearly converse of structions submit the facts instruction principal which The State’s convictions are authorized: got a (lefendant issue, and the here both sides of the did submit right to He entitled a matter was not converse instruction. and di particular facts severally singling out further instructions if were believed. recting acquittal those facts an jury 18 No. there was no Instruction told struck time his automobile the defendant was intoxicated at the any not be influenced their verdict should deceased, and that and his There was evidence the defendant consideration. such drunk, shop, closing barber had two bottles their partner, after each, Day. police The beer, before on Armistice homebrew noon having he admitted defendant’s arrest testified after the liquor at in the afternoon the home of his friend late two drinks of directly there of the day. drove from scene of that He driving in connection of his These facts manner homicide. . justified instruсtion, afterward, the refusal and his conduct did mention The State’s instructions in our submit opinion. question of his intoxication. approved IV. information a form numerous decisions. is accord- judgment in the record and the proper, find no error We All ingly affirmed. concur. (2d)W. 58. Appellant. S. Richards, v. Tom Two,
Division December 1933. *2 H, Moore, L. ~W.A. Franken and B. H. Moore appellant. *4 McKittrich, Boy Attorney-General, and Powell B. McHaney, As- n - : Attorney-General, respondent. sistant *5 WESTHUES, Appellant Henry Wright by charged, C. Missouri, an information filed in Clay County, the Circuit Court of with the crime murder degree. first application On an change a of venue County. the case was A transferred to Carroll granted. severance was Appellant’s trial resulted a conviction as charged punishment and a imprisonment Ap- life was assessed. pellant’s motion for a new trial was pro- overruled and sentence n nounced in accordance with the verdict. From appel- this sentence duly lant appealed. On the 7, 1932, of March early or morning 8, a of March number attempted burglarize of men Kearney Company Trust Kearney, Clay County, During Missouri. progress at- tempted burglary a Barr, Kearney, man named Ernest a citizen of was shot and killed culprits attempting who were to bur- < glarize the bank.
At the trial attempt did not to dispute the fact that attempt burglarize there anwas made to company the trust or Ernest Barr was shot and billed participating someone in this disputed crime. Neither was questioned it that the evidence was sufficient to show that the homicide constituted murder in first degree. The appellant was, sole contention of is, this is identity; he, case of mistaken appellant, participate did not the crime but was at his home in Springs, Missouri, Excelsior had no connection attempted whatever with the burglary or murder. fifty-seven There assignments áre of error in the motion for new trial, covering thirty-two pages Many of the abstract of the record. assignments duplications are attempt and we will not them, enumerate but will points preserved treat the properly various assignments for our A review. number of pertain to the admis- rejection sion and will,' therefore, of evidence. necessary n detail some of the State’s evidence.
49Í to Thompson, testified night Kearney, A Joe watchman at named was following 7, Thompson of March the state facts: On the shop no- he warming a in the barber shop in barber himself. While Company Kearney Trust stop ticed a car across the street near the engaged building. apparently A was stepped man from car and the left examining gas Thompson, who had tank. When he saw the get he some him where could shop, the barber he called to and asked the according evidence, was gasoline. man, Thompson’s This to filling station, where he at- appellant. Thompson them a directed to selling men some tempted purpose of to unlock the station for the man identified gas. Just as he was about to unlock door body said, “Stick against Thompson’s and appellant held a revolver eodefendant, car. Wright, stepped from the up.” em Then the car securely hands, placed him the Thompson’s two men tied A parked. man where a ear was then drove the railroad station to being held parked Thompson to car in which was from ear came exclaimed, gun. Thompson he saw- he and asked for a machine When was Thompson “Why you got him blindfolded?” in the hell haven’t Thomp- a shop tied in chair. blindfolded, then to barber taken keys bank-building having son and denied was asked for the to they that appellant made the statement them. The man identified as Thompson further going burglarize company. the trust being shop barber he prisoner held a in the while he was téstified sufficiently permit him to managed blindfold so as to to shift the him appellant kept watch over see the men about him. He testified go shop. barber On several occasions and would in and out shop. Thompson held Wright barber was thus made visits to the going He had in the habit prisoner a several hours. beеn for appear midnight for when he did not at the home lunch about deceased, Barr. appointed time his wife became worried and notified look for This two o’clock a. M. Barr dressed- and went to was about According Barr have encountered Thompson. to the must near the burglarize bank when he came attempting to the men building. Im- shop barber which was across the street from trust shop. shooting the barber mediately had--lеft ptior in rapid shots a number of Thompson voices outside then heard ' refuge in Thompson managed himself and took to free succession. gunshot a shop. óf Barr received number the rear the barber Empty place which near the wounds from he died. shells were found lodged shooting in the walls of the and a number of bullets were gave had buildings. These .38 caliber revolvers been Thompson from A .38 was taken police special used. caliber building entered the crime. The bank had been perpetrators and a hole burned vault. following progress' A there was a trial week this homicide Wright being for the Missouri, Henry tried Liberty, wherein weapons. This trial had no connection carrying offense of concealed present Thompson requested been except with the ease attorney prosecuting trial be on look-out to attend the burglarize comрany at the trust attempted men who had Kearney. Wright’s present bondsmen and was Appellant one of *7 attorney Thompson the prosecuting in the court informed room. Kearney on Wright appellant the at that and were men he had seen Wright appellant the were arrested and of the homicide. and warrants, jail. Immediately two were lodged in thereafter search Wright ap- directing the of and issued the officers to search homes pellant and certain believed to concealed property seize stolen was property The warrants therein. stolen described search being revolving pistol, police special,” description .38 a “one caliber Thompson nightwatehman. of pistol taken from the the pistol find or The made a search but did not the revolver officers find, home described in search warrants. The officers did at the the At Wright, money bag, rag a .38 caliber of a a black and revolver. sheep in a appellant’s the officers found a .32 caliber revolver home taken, by officers, at property this the coat. All of was lined permitted to in over the the was introduce it evidence the trial objections appellant. of strenuous the suppress trial motions the evidence obtained
Prior to the
by
warrants,
filed. These wеre overruled.
of
search
were
virtue
the
objections
During
appellant
his
to the evidence.
the trial
renewed
objections
of
specific
made at the trial
to the
of the
evidence
One
Wright was,
ad
at
home of
“and for the
property
the
found
the
objects
Henry
at
residence of
ditional reason that
the
found
the
against
The
was
point
Richards.”
Wright are not evidence
Tom
for a
trial.
preserved for
review in the motion
new
properly
our
forego
We will
a discussion
position
appellant
The
of
is well taken.
Wright
against
validity
warrant
issued
the
of the
of the search
in the search.
suppress
motion
the
taken
and also the
evidence
home
Upon
Wright
taken
the
home
theory
property
law
the
from
no
of
any testi
against
The
contain
appellant.
record does not
evidence
mony
any of
articles
pоssessed
even saw
the
ever
or
that
prove
argued
admissible to
the
It is
that
evidence
mentioned.
by
conspirator dur
a
made
one
conspiracy. Evidence of statements
near,
make
crime,
point
so
in
of time as to
ing
of a
the commission
against
in
participants
all
gestae,
res
is admissible
part
it
of the
a
de
person,
a
other than the
However,
on
articles found
crime.
offense, are not
long
trial,
thе commission
on
after
fendant
showing of some connection
against
a
minus
admissible
defendant
argument’s
tools
Suppose for
sake
the defendant.
the articles with
Wright’s
week
possession a
after
commission
in
been found
attempted
in
have been used
offense,
were admitted to
which
aid
of these articles
burglary.
would
introduction
How
prove
Richards, or tend to
defendant
identification
was not
the offense?
the commissiоn of
his
with
connection
disputed in
been committed
this ease
a crime had
The
chargeable
murder.
persons
all
connected therewith were
n
The
appellant.-
principal disputed issue was the identification of
any
the articles
wholly
to show
connection between
failed
Wright
was,
The
there
appellant.-
home and
found
any
against
fore,
purpose-
appellant.
this
inadmissible
by
follow
can
theory
upon
relied
the State
be-best illustrated
711,
“Again, under this same defendant testimony Gettings, showing McLespy, that when mission Ryan assault, the police, few moments after the a were arrested As to persons, pockets, bottles. on their -their officers found propriety whatever as to the this, we think there can be no doubt these already in, prove tended to this evidence. taking part upon assault present men three had assaulted him with witness, and the defendant prosecuting a- in their were arrested few moments afterwards These three bottle. *8 armed perfectly competent they show that- were flight, it was to and which weapons of that with the assault the character as with same they strong The fact that were thus armed'was had been committed. prosecuting of statement of witness to- the ly the the cоrroborative him, upon of assault that had been made officers, of character the the purpose for of as the identifying-- also the them admissible and was ’’ engaged also, in v. the assault. [See, had been who parties, Mo. (9), 837 293 W. l. c. Reich, 239 S. 415.] Wright fleeing been arrested the and while from appellant
Had Wright had the in posses- homicide and had articles his of the scene against been admissible in they appellant. have- evidence would sion Wright together day on were-not seen the or near the and Appellant except Thompson was committed the witness the offense time the Wright appellant participated as men who identified night question. in on-the offense though that even maintains the articles and the evidence The State erroneously admitted, thereto the was error with reference- given in view harmless, appel- so of Instruction G- especially No. at It reads: request. lant’s - -revolver, money that the- .38 caliber instructed sack and “You are Henry Wright been at the have found residence of rag to claimed by you Henry Wright as evidence-that was only considered can attempted burglary Kearney to commit the at conspiracy in-a . . purpose.” no other for night permitted testify to to watchman effect the Wright’s the.night question in forehead was covered that on Wright’s rag to the one found at home. similar An officer a black company trust testified other banks and of the bank money bags Wright’s the one in used similar to found customers This, finding home. and the evidence of of empty number .38
shells number .38 in a wall near bullets where deceased shot was connecting as-near approached as the State the articles with the Wright of. trial in commission was not on this offense. say ease. We not in position are that the admission of this evi dence was harmless. Error should be declared harmless unless question. Appellant it is so without offered substantial evidence guilt. alibi. strenuously night an He denied his did watchman prior not claim appellant he had ever homicide. seen to the charged Identification and his connection with the crime sharp dispute with the in the case. Under the circumstances we hold the admission of evidence with reference to the articles found Wright at the home as- well as the in admission evidence of the articles, -to be reversible error. in The trial court also erred admitting objection the evidence introduced over appellant’s factory Wright’s number on the .38 caliber revolver at found home had been obliterated. There was so much this evidence intro with, finding duced reference to the of these articles thаt we hold instruction did not cure error'. objection, appellant’s The State introduced over j32 revolver found in the appellant. caliber home This assigned Appellant as error. filed a motion to suppress the evidence under, search obtained the search warrant and to return the n property Objection appellant. was also made to the introduction Appellant of this at the duly preserved trial. has these questions our Owens, review. S. W. 302 Mo. [State It is property admitted- that the taken by 348.] officers property was not- described in the warrant. is also property admitted that offered in-evidence was taken from the appellant. Appellant time, was not at home there he previously jail. been lodged arrested the courthouse So *9 as the record discloses the revolver and far the sheep skin coat taken property of private appellant. were the It was not contraband and possession per was not se. motion suppress its The to unlawful should, therefore, have been evidence sustained property and the objection The appellant. returned to made the trial to the. ad in evidence of the articles found mission and the evidence -with ref .search have erence to the should also beеn sustained. v. [State 764, 318 300 Randazzo, 765, Mo. l. c. S. 757 (2, 3); W. l. c. supra.] search Owens, The warrant v. described a certain revolver be property the stolen to seized -under the warrant. as Such a search authorize the property warrant did not officer to seize not contraband therefore, and, property question the.search seizure .of in . supported by is authorized. This rule numerous authorities [56 164; J., p. States, sec. Marron 1244, C. v. United 275 72 192, U. S. 231; Siegel, (2d) 136; Ed. United Stаtes v. 60 L. Fed. v. People 225 Preuss, 115, 684; 761, 195 N. State, W. v. 152 Cofer Mich. Miss. So. 118 61
495 obtained-by virtue The above rules are limited to the evidence pertaining The of the search warrants evidence thereto. and the testify night permitting in to trial court did not err watchman fully .question. Nor did as what saw on to he and heard admitting finding reference to the the court err in the evidence with finding lodged -in the walls. empty bullets shells cross-examination, by objected Appellant to the method Story attorney, Story. appellant’s'principal State’s witness "Wright pre alibi trial the week witness. He had testified attorney en exceptions State’s' vious. bill of reveals that The long argument gaged in a witness over certain given thereof, meaning "Wright. Suffice to sav at the trial of arguments [Pyle of this nature. permit that trial should not courts (14, 15); City 246 W. 987 Light v. S. l. c. Kansas & Power Co.. Kimmerle, (2); 296 c. 191 Loeb v. v. S. W. l. State ex rel. Stanton. (2d) (10) ; City 268 Humphreys 9 c. 204 v. of San Francisсo. Pac. l. They State, (13); Pouncey (7).]' 742 l. c. l. c. 395 v. So. Pac. witness-may impeached purpose be in a case. A serve no useful showing former of- facts- at a that he testified to a different state Cyc. may if testified. be asked he so trial. To do this he 2708.] [40 may did, testimony It then be introduced. If he denies he the former jury duty truth. when the- witness told "the becomes the to sav permitting assigned trial -court Error is to the action of the including attorney jury information рrosecuting to read to the charge nothing than a formal is more the verification. The information attorney against required, prosecuting under the defendant. The statute, jury. [Sec. to the the State’s ease to make a statement of Ann., Loeb, 3681, S. W. 3227; p. R. S. Mo. Stat. may duplica be a reading The some extent of the information to 299.] given generally in all criminal An instruction tion of that statement. mere 'indictment is a jury eases informs the that thе information any charge them as must considered not be formal jury can reading ato of the information against The the defendant. not, verifi therefore, a defendant. prejudicial as tó be considered ought be read to attorney not to prosecuting affidavit of the cation or only could redding the verification jury. purpose of the impress jurv sworn to upon officer had prosecuting that the improper. would be infоrmation and that facts stated Appellant instructions in the information was named Young.” this discloses that The evidence Richards alias Tom “Tom all reference On a retrial was unauthorized. reference omitted. an"alias should be *10 State assailed, 4 similar to one approved-in is No. Instruction the part of 155. latter W. 434. 309 Mo. 274 l. c. v. Williams. S. reads as follows: before us instruction the case purpose common and execution of said pursuance “That while RICH- TOM the said purpose), that (if a common you was find there 496 pur- engaged ARDS, YOUNG, any TOM m the alias or the others of (if you purpose there and common suance execution such find of Missouri, County vurpose) Clay of State
was a common at the of and 8, deliberately, aforesaid, feloniously, willfully, 1932, on March did aforethought, premeditatedly a if so. .with of malice shoot and his BARR, shooting then, and ERNEST or was nistol and such killеd present another, assisting, abetting aiding, the present, there or or was for others, abetting aiding, assisting purpose or of or you RICHARDS, crime, commission of such then will find TOM alias YOUNG, guilty. TOM ...” approved in italicized found in instruction The clause is not instruction, Williams, supra. as v. It is that this State contended they written, jurv if found authorized the to convict the aunellant aiding, any State’s that he or theory, one others etc. The was nresent of ap- supported which was was substantial aiding abetting pellant present and shot or was either deceased was introduced the commission of authorizing offense. There no evidence present was at the if he not a conviction of aunellant com.- n instruction, written, been would have mission crime. The as with if proper had connection there been evidence anuellant’s If presence participation his therein. the crime other than actual would from the instruction it the italicized clause had been omitted theory jury. clearly to correctly have State’s submitted the may 'given interpreted appellant as contends. The instruction a retrial clause discussion be.omitted. On under should appellant was
In a new trial contended there the motion for support point This verdict. was no substantial no identification of briefed and we find merit therein. The his with the were sufficient the .evidence of connection crime point jury. see support the verdict of the . On the of identification ; (2d) (8) Hart, l. c. 594 State v. v. 331 Mo. 56 S. W. 650. Blackmore, (3) Scobie, 217, (2d) ; 53 251 W. l. c. Mo. S. W., 2). (2d) (1, l. 327 Mo. 38 S. c. -error, assignment for trial in the motion new Another The-State offered in evidence certain not briefed deserves comment. showing daughter attended appellant’s school attendance records day. purpose of contra a This school on certain offered daughter testimony his dicting appellant who had testified day. objection was made school on that had not attended and testified reference produced .the records witness who not the them made make the records see did not thereto Upon objections met. retrial these should be custodian thereof. testimony Note witness: A. “Q. kept, you? They are see records did these You didn’t during keep year. property teachers Mr, know it is that Smith handed “Q. Certainly, all.you about . Yes, you A. sir. these?
“Q. anything keeping particu- You these didn’t have to do A. sir. No, lar records?
“Q. No, Nor didn’t see the teachers make them? A. sir.” briefed, assignments trial, of error in the motion for Other new been examined and found to without have merit. judgment is of the circuit court reversed cause re- Cooley Fitzsimmons, CC., for a new trial.
manded concur. foregoing Westhues, C., adopt- opinion PER CURIAM: The judges opinion of All concur. ed as the the court. Benjamin Brantley, Doing W. B. Business as Sherrill Atlas
B. Printing (2d)W. 529. Company, S. Appellant. One,
Division December 1933.