*1 IOS resulting of an in- form, matter is a mere averment, sential by adding the words on trial and may be amended formation 680, Adkins, State v. While jury is sworn. after the reasoning in precisely point, we think the found not 981, S. is W. supports our conclusions. concurring opinion J., Williamson, did err. the trial court amendment, not permitting In it defective, information is because did said III. It is the crime was committed Butler body allege in the thereof not margin The county, Missouri. information shows County, consequent- Missouri, Butler the venue to be unnecessary body to aver the venue ly, it was 3900, R. S. The information. [Secs. 1919.] against many been ruled the contention dé- times question has it. 232 Mo. McDonough, not discuss and we need [State fendant, cases cited 545, and collation of under Secs. 134 W. S. 3908.] finally complains as follows: num-
IY. Defendant “Instruction for the reason is based 1 is it not information. bered erroneous allege The information does the crime was com- not County of Butler and Missouri, mitted State of requires jury instruction to so find before but convicted.” can be defendant reading evident, preceding paragraph from a of this It is many complaint is well taken. As margin have we
opinion, that equivalent, in the is under the venue stated held, the times body venue in the information. to an averment of Statute, rendering thus information, on the was based instruction The complaint untenable. proper the record shows the remainder
Y. An examination from error. free it Cooley, CC., Henwood and concur. is affirmed. judgment opinion by foregoing Davis, C., adopted PER CURIAM:.—The Walicer, judges except concur, All of the of the court. opinion absent. J., Appellant. (2d) 23 S.W. H. v. R. Stogsdill,
The State Two, 11, 1929. December Division i
J. Spradling appellant. A. for McCollum and & Ballon
Ill H2 *7 Attorney-General, Lovan, S'hartel, and A. B. Assistant
Stratton Attorney-General, respondent; M. F. Montgomery, for James A. B. L. Finch Ward of counsel.
COOLEY, Cape C. In the Court of Circuit Girardeau County, of defendant was degree convicted murder the second and sen- forty-three years’ imprisonment tenced to in the penitentiary, from Hargett appeals. which he One B. M. was murdered at Chaffee, in Scott County, on October 17, and others, Coy two crime, for the indicted jointly Fowler, were George Lasley and ap- their upon and degree, in the first murder charging indictment Court Circuit change venue to granted a plication were Stogsdill affidavits filed Lasley and where County, Cape Girardeau Dearing, M. E. thereupon Hon. regular judge and disqualifying the try to called Circuit, was Twenty-first Judicial judge Stogsdill appellant case and in this granted, A severance case. tried.
alone was the fol- was to the State on behalf the evidence brief outline In lowing effect: and were Chaffee, lived appellant at George Lasley, Fowler and Company, Francisco Railroad St. Louis-San employ of the
in the brakemen, hav- were Lasley Fowler Frisco. referred to as the years, number of for a ing employed so on Frisco been Railway Stogsdill was Trainmen. of the Brotherhood members being protect his duties to company, special agent railroad for the against same. investigating offenses and aid property railroad had come Chaffee who to deceased, brakeman Hargett, Frisco, with the Arkansas, work Jonesboro, seek his to from home belong the above-men- He did not day he was killed. before appellant. organization, did tioned nor be- over and year prior Frisco had taken A time the to this so City Lake Jonesboro, as the
gun operate railroad known a line of E., thereafter J. L. C. & and referred to as the Railroad, & Eastern intermingled; employees isj both roads seniority without J. C. & E. could come to the Frisco employee an L. em- seniority employment. that an
losing rights of It seems right displace, “bump,” one longer in ployee the service had service. The Frisco junior him in the same branch of who was called extra at Chaffee a board board maintained the office upon names and local addresses of men which would be written the they seeking work and when work for them would be there was Hargett registered called. When arrived at Chaffee he at the office placed He and his name was on the extra board. obtained a room rooming It is he Horstman house. shown had senior- not rights ity Lasley appear over or Fowler. does from Fowler’s It testimony they Hargett per- previously that while had known sonally, Lasley, appellant upon his Fowler and looked “scab” they coming Chaffee; Stogsdill resented said iE Hargett (Stogs- would scab on railroad men he would scab him dill), they agreed and that decided the afternoon of October they night give 17th would him whip- take him a out ping and run him out Lasley, of town. Fowler and appellant known each for friendly other some time and were on terms. It *10 further appears appellant together Fowler and were Lasley, being with them Stokely 17th, one good part of afternoon the a the- whisky. large quantity of they
part consumed a time, of the and that the ar- made alleged conspirators During afternoon the three the night. Hargett rangement out that above mentioned to take inquired of shortly Fowler evening o’clock, In seven the before Hargett could be office, where Crader, boy John Frisco call at the Ilorstman’s. Asked he in room at found, and was informed that was Hargett, find why to know where to Fowler he wanted Crader Hargett king scalies, from Jonesboro. and said was the Lasley’s touring car Lasley sitting in Ford in front were the time away. got of the in with and the three drove office. Fowler them They home, procured pis- appellant’s appellant drove to where Returning tol, gave Lasley. which he to business center to the space they parking presently the drove into in the town the street rooming upstairs front which was house, of Ilorstman’s over stopped. Appellant remained in car while place, business Lasley Hargett’s masking their up room, and Fowler faces went to they Hargett with handkerchiefs as went had up stairs. retired. They compelled get up, going telling him him they to to take finding him him ride, weapons, Hargett for and searched for none. shirt, shoes, given drew overalls and to but time button his lace stooping or his shoes. While he was shirt over resting shoe, edge Lasley lace a with his bed, foot struck him pistol the head with carried, producing he a wound o.n from which dropped on sheet, blood bed on the floor and stairs they They descended. compelled him to car get took him to appellant waiting. the back where seat Lasley handed the pistol appellant, he got seat, they and Fowler in the front Lasley driving. drove away, they When had driven about four blocks part car; three shots were back Hargett fired Lordy; cried out: “Oh, help,” help, immediately and almost fell pitched out car, moving which was still did not stop. they Fowler testified Lasley drove on appellant asked if he appellant had Hargett, shot which replied put that he had every right through them one son-of-a-bitch; damn they then by route, drove which described, appellant’s he office, they where put lights locked door, out the and held a short conference, agree- ing keep about had silent what occurred, separated. and then
Hargett’s body dead was found in the very street shortly after shooting. passed At least two the bullets through had going chest, through heart, one passed and one had through his clothing arm. The flesh and about the wound in the arm were powder-burned. Either wound body in the would have been fatal. lodged bullet in One only body.
117 corresponding morning Lasley’s Next ear A bullet was examined. in Hargett’s body
to tlie taken from found one embedded the upholstering through up- of passed the back seat. Another the had holstering it, showing in metal behind the hole the metal the by freshly passing that it was made and from a bullet inside to out- parts side ear. Blood of the stains found on car be- of .the through boards, evidently neath the floor where had it trickled that part of floor between the front and rear seats. The had car been freshly washed inside between front rear the had seats, the covering portion floor the floor, mat but parts of other recently. Lasley’s car had not been washed The door of garage, preceding which night for a considerable time the of the homicide ground tying had been unused, the was closed and wired shut. Lasley’s room for There is no doubt that car was the in one which done. murder was following killing appellant For time suspected some was not appeared during trying be their that time to to aid officers in find out He efforts to who committed the crime. was arrested in having 1928, previously. been January, other two arrested At knowledge participation the trial denied in or of defendant the of- te,stifled family He and of his fense. members he was at home Hargett when shows at the time evidence evi- The killed. dence relative alibi was contradicted to evidence than other way Fowler, By impeachment of offered the State.. of it was appellant grand larceny shown that convicted been of in his youth, burglary young man, when and he was shown to have contradicting testimony made statements that he had not taken day killing. a drink on the Further facts will be noted points connection with the be discussed. to challenged The is
I. indictment in the motion for new trial on grounds it does not state facts any constitute sufficient to charge not a conspiracy agreement offense and it does kill necessary allege Lt was deceased. not in the indict- ment charged pur- that the crime therein was committed conspiracy. suant ato “Where a charged is defendant the commission crime, conspiracy evidence although may shown, crime be conspiracy commit existence of the charged is indictment'.” not v. Carroll and 288 Jocoy, [State 407, 232 W. 699, S. and cases cited. See also State v. 433, Ruck, cited; 194 Mo. S. W. 706, and cases State v. Kolafa, 291 Mo. S. W. The indictment is 302.] sufficient. quash ground filed and that No motion to motion for new point abandoned, have been presented seems to trial assignment appellant’s brief or of errors. court, second first and gave on murder II. instructions rea- of innocence subjects alibi, presumption degrees, on the limiting properly credibility witnesses, and one doubt,
sonable con- former evidence of effect of the purpose and instruction also an There was of defendant. victions uncorroborated might on the convicted be defendant effect that sufficient true and accomplice if believed to testimony of an testimony such warning jury guilt, and establish defendant’s great caution. be received with should *12 de- in first of murder the convicted was 1. not Since defendant that instruction relative necessary to consider gree it not degree murder is in the on second instruction grade The offense. crit- subject to and is not adverse this court approved form often is, first, it that only complaint The made of icism. given if have because it should been defendant not any guilty crime was murder in the first it was given in the degree should have been murder instruction no jury in- degree., and, it refers the to other second, second require certain for terms and does structions the definition of not jury killing was intentional. to find that complain was convicted that he of murder in the Defendant cannot guilty, degree when showed him if mur- all, second the evidence degree. error, any, if first in der was his favor and is in not
ground for 140 Billings, reversal. [State 778.) jury W. This S. instruction referred the for to another instruction definitions of “wil- “malice,” fully,” “premeditatedly,” aforethought,” “malice appropriately all of which in defined 3. Instruction That was repeating sufficient without definitions in Instruction the one defining submitting degree. in murder the second The criticism require finding killing does not that it was intentional degree order constitute murder in the second is wholly unwar- “intentional,” use It does not the word require but ranted. it does finding killing wilfully, premeditatedly was done and with aforethought. jury In Instruction malice is told “wil- fully intentionally, accidentally; premeditatedly means not means length any thought of for beforehand of time however short.” The jury killing instructed that therefore have must been in- justify conviction. tentional order assigns as error that given instruction on subject requested and that his insufficient alibi Instruction A subject given. for should have been The motion new on that trial subject to an A
refers instruction numbered on that B °ne numbered relative to corroboration -of the testi- mony Fowler, requested by appellant and refused. exceptions any the bill does instructions, But show nor such any requested such instructions or instructions whatever were exceptions any nor defendant, to the refusal of instructions re- quested by appellant. any Nowhere in the record is there reference alleged request to such except inferentially and refusal the motion alleged new for trial and even there refused instructions are not Neither any showing set out. is there excepted that defendant ato failure of the court on all applicable to instruct the law to the case. Allegations in prove a motion for new trial do not themselves. Since showing there is no that such requested instructions were and re- they iused nor requested, they as what .if were, cannot con- sidered. gave The court an instruction relative the defense of alibi that replica copied of and doubtless was given from the one subject AVilliams, in State v. 309 Mo. 155, 183, S. AV.427.
In this case as in the AVilliams case this given instruction was connection one presumption on reasonable doubt of in- nocence. In AVilliams case authorities are cited and in- *13 struction is held sufficient. For similar reasons we hold it sufficient in the instant case. Appellant contends give the that court failed to a proper
instruction on reasonable doubt. given The instruction was as follows:
“You further are instructed that the indictment contains the
formal statement of the charge, but is not be taken any guilt. evidence of defendant’s presumes the innocent,
“The law defendant to be presumption it by continues until has been overcome this evi- your beyond guilt establishes his satisfaction a dence which guilt doubt; proving reasonable and the burden of rests with the State. presumption
“If, this has been overcome however, the evi- beyond guilt and the of defendant established a dence the reason- your duty convict. able is doubt, you have a reason- upon evidence, all the
“If, consideration of acquit; a you should but guilt, able of the defendant’s doubt ought be a sub- acquittal ground' an on that doubt to authorize a mere touching guilt, and not stantial the defendant’s doubt possibility of his innocence.” motion for appellant’s in instruction complaint made of this láys the law proper a statement is “it cloiun
new trial that of which, gives prominence undue qualification destroys to a the ef- (Italics fect of ours.) declaration.” does not in- form us tion he in qualifica- either or motion in his brief what is the If concluding
refers to.
he means
ef-
portion,
to the
a
fect that
acquittal
ground
doubt to authorize an
should
on that
a
guilt
substantial doubt touching and not
defendant’s
possibility
(cid:127)mere
of
on
innocence,
the instruction
reasonable
qualification
long
ap-
doubt
proved by
that
been so
has
so often
court,
is
support
this
that it
needless to cite
of
cases
appellant urges
it.
In his
that
objection,
brief
a different
viz.
subjects
presump-
so
instruction
blends
of
as minimize
tion of innocence and
doubt
reasonable
any
might
existed in
the effect
which
have
doubt
support
thereof
jury,
minds
cites
281,
State
167 S.
Douglas,
552,
Mo.
W.
and State v.
Clark,
ap
121 It is obvious that neither of cases sustains appellant's cited contention. The given instruction was this case clear and con- subject cise and was sufficient both reasonable doubt and presumption Bond, innocence. v. State [See S. W. jury also proving It informs the burden of 830.] guilt defendant’s rests upon State, which answers another al- leged error complained in the for trial. motion new assigned III. Error is gave an instruction court (No. 6) to jury might the effect that convict on uncor- testimony accomplice roborated of an if believed an(l ^rlie sufficient establish defendants guilt. properly cautioned instruction further jury testimony re- such should be how unobjectionable ceived. The instruction and needs is form not sufficiency, out. Appellant’s objection be set is not to its formal alleged accomplice; but he insists that was an that another Fowler witness, perjured had at Crader, himself admitted that he inquest; another, coroner’s under indict- Maxwell, was one driving promised been for a car while intoxicated had ment immunity have testimony, his defendant could not
for testimony of three witnesses; been these convicted without to an instruc- and that such circumstances he entitled under testimony Fowler be corroborated. requiring tion of Fowler to State’s confessedly appellant’s accomplice was principal an testimony, case true, if makes out a clear His witness. accomplices. Maxwell were against appellant. Crader and knowledge any facts attempted deny relative Both at first testimony trial gave at the Both committed it. the murder or who Crader, testimony. it parts Fowler’s corroborating important perjury his for for prosecution with had threatened seems, been inquest before the when called first either at the testimony, he after prosecution abandoned grand jury. This threatened jury the‘grand when truth before claims, told the as he had, There not done so. if he had him to truth advised tell mother pending while intoxicated driving a car charge of been the first he testified when dismissed which was against Maxwell in which the previous trial (There had been this case. trial of go only to affect matters agree.) But these jury failed to well es- is the It witnesses. testimony these credibility of the may crime charged that one in this State law tablished" if accomplice an testimony of uncorroborated upon the convicted guilt. jury to establish convincing to the sufficiently it cited; State cases 511, and 10, 114 W. S. 215 Mo. Bobbitt, v. [State Mo, v. State cited; cases S. W. Shelton, 223 *15 122 cited; State 279 and cases
Cummins, 969, 213 S. W. 192, 209, Craft, testimony 253 224, therefore, v. W. Since, S. 228.] Fowler, by con- jury, if ivas sufficient to authorize believed by by any witness, what viction, although other not corroborated logic reasoning jury must corrob- be told that it must by corroborating orated because offered evidence the State has may impeached? they If who discredited or witnesses have been only corroborating had been witnesses discredited to testimony nothing, the extent their amounted to the most can is that be said of that situation there no corroboration is legally by. if testimony of Fowler’s which was sufficient believed jury. thoroughly a corroborating If not so discredited then the testimony accomplice. something adds to that of the no There is merit in this contention. necessary
IY. In it6, connection with Instruction is to con- appellant’s conspiracy sider cannot be assignment of error that a Fowler, conspirators. by testimony established one accomplice as of and co- has been self-confessed stated, was a conspirator uncorroborated. There appellant. He was not proven by were numerous other witnesses circumstances testimony. proof But tended to of the existence corroborate his against competent conspiracy necessary was in order to render which witnesses appellant certain statements other testified testimony Lasley credibility of that and Fowler had made. ap- jury was jury determine. The instructed that was for the testimony pellant might upon the uncorroborated be convicted jury accomplice. if the disbelieved an Under that instruction testimony testimony, Fowler’s with- corroborating but did believe convict; might upon it find corroboration, it could still out testimony conspiracy, Fowler’s uncorroborated there was therefore, If, referred to. making thus the statements admissible con- insufficient to establish the testimony legally was Fowler’s error. spiracy, Instruction assignment: State support cases of this cites two Gilmore, 151 by v. this and State Loeb, court, 190 S. W. merely case holds N. W. The Gilmore
Iowa, by an having been made a witness declaration testified to the,alleged con- to establish alleged co-conspirator not sufficient not make on trial did against defendant who spiracy made, which is a dif- when it present statement parte person trial such ex statements As matter. to the ferent being shown conspiracy itself not alleged co-conspirator, of an hearsay. so as to testi- would be But not trial, at the by evidence given co-conspirator. mony the trial *16 Loeb, only In State we think court intended supra, v. to hold defendants, Gilmore what was held case. Two Loeb and Doss, larceny. charged trial One Beckett testified to cer- by tain which claimed made to him Loeb, statements he had been presence Doss, prove not in the of tended to Loeb’s connec- which alleged implicate The and also Doss. tion with the crime to state- by Beckett, only Loeb, ment as to constituted the evi- of testified crime. Absent that connecting dence alleged either defendant with the tending to con- there was evidence show a statement no Dpss. spiracy held that Loeb’s state- between Loeb and court The part participation in the crime on active ment tended to show against him, if was admissible but committed, one been to said: Doss Loeb’s statement determined, however,
“It remains to be whether against To render it it co-defendant, was Doss. so admissible conspiracy necessary tending there to show is that be evidence a testimony either be the crime. ... No was offered to commit fore of the show the existence or after the admission statement conspiracy may a which of other than that deduced from the conspiracy A cannot be established testi statement itself. mony conspirator a or alone, must be shown other facts of but (citing State v. Gil independent of his statements” circumstances 34 W. more, People 222, N. Parker, v. 67 Mich. supra, 580). ours.) (Italics Am. l.St. c. testimony held to Loeb’s state- court of Beckett as against against
ment, admissible Loeb, while admissible was not Doss. considering and de-
It will be the court was observed that what ciding sufficiency testimony of the competency not the co-conspirator conspiracy, for there was no such to establish the testimony, admissibility of or declaration but a statement against present when state- alleged co-conspirátor an one not tending any testimony show ment was made and without conspiracy existed. Parker, case, holds People supra, like Gilmore The case alleged co-conspirator only by an that statements made conspiracy “cannot be used to show the presence of defendant independent Neither ease cited holds evidence.” without other prove testimony co-conspirátor of a is insufficient conspiracy. may
It well established in this State that one be convicted of accomplice. testimony It upon the of an crime uncorroborated time thus, to hold at the same to hold that be anomalous would the through means proved. conspiracy is an incident to or which which We charged effected, so are satisfied cannot be crime opinion in Loeb learned writer of the case that the used the “testimony” word inadvertently say when he meant “state- part quoted. ment” in opinion Otherwise that above remark question sufficiency would be obiter because the testimony co-conspirator conspiracy establish the not involved in-the case. The Loeb case should not be followed point. on that
Y. Appellant assignments makes numerous error the ad- rejection' mission and of evidence. Lasley proved objection The State over defendant’s Railway Fowler Trainmen belonged to the Brotherhood of a,n application ba<l a witness for asked aPPe^an^ years previously furnished blank some two which was not *17 request accompanied recommen-
because the was not required Appellant as later dation the rules the Brotherhood. testified on his own examination that he did not and never had direct belonged any objection union. ITis the evidence of Fowler’s Lasley’s membership and was immaterial. was is that There no it admitting error in the evidence.
2. assigned Error in the admission of the evidence as to seniority rights employees and L. the Frisco the J. & E. C. began latter, operating raüroads after the former Seniority operating and. to the fact that the Frisco was J. L. Rights. questionable objection & E. It is whether the to this C. testimony sufficient, was but we think there was no in error gave jury evidence. It information admission of the as to the parties surroundings relative to other of the and situation each tragedy explain feeling in involved and tended to part appellant his associates toward seemed to exist on and - the deceased. was error in the of cer- contends there admission Clyde Lasley and witness Maxwell tain conversations between Lasley Crader and and and Fowler and between John presence Fowler, appellant. Maxwell p. 17th, testified seven October that about m. shortly homicide, he saw talked before the and house, Lasley rooming near Horstman’s in which deceased had Lasley’s sitting ear, a room. At which appellant time was rooming parked, was of this house. Las- in front street ley go Hargett up asked and call and tell him that Maxwell to city meeting “they there was a at hall and of some kind would way.” Lasley pick him up they went that Maxwell declined. replied then if which gun, asked him he had he that he had shotgun. Lasley inquired not, then if Maxwell had seen except Hobbs, city marshal, John Maxwell him where he and told thirty Lasley had seen some Hobbs minutes earlier and went down way. A later few minutes Fowler came along and asked Lasley gone Maxwell where Maxwell Lasley and told him had gone down corner. towards the -Fowler then invited Maxwell to They out Lasley’s car and a drink. car, come have went to by appellant whiskey but were informed who was the car that the whereupon consumed, had all been Maxwell stepped and Fowler car) car” (appellant remaining “around back of the in the and they Fowler going there Maxwell Hargett what were to do with asked they replied got when him. Fowler none of it was business, they Maxwell’s damn him go all wanted to do was to call him.
Crader testified 6:45 and seven that between o’clock that eve- Fowler, ning Lasley appellant came the Frisco officebuild- ing Crader, employed boy. where he, call Fowler came into hall, motioned hall, Crader to come out the office into the Hargett rooming. there him asked where Crader told why him, “In room Horstman’s,” four asked Fowler he replied Hargett king wanted to know. Fowler scalies from Fowler went car in Jonesboro. then out to the front Lasley appellant sitting office in which and the away. three drove Fowler testified to the conversations also he had with Maxwell and Crader. testimony ,tjhe relative to conversations above referred to *18 properly by Lasley
was admitted because what was said and Fowler during conspiracy was the of the and in existence furtherance of purpose Lasley, Before thereof. these conversations occurred evidence, appellant, agreed and State’s according Fowler to the had Hargett night give whipping. to take him a At out and they obviously of him seeking time the conversations for prearranged purpose purpose carrying their out and these state Lasley purpose. Fowler had ments and direct reference to that though against appellant, were therefore admissible The statements presence. Shields, 246 made in Mo. not his [State 932; 471, 486, State v. 246 S. W. and Samis, S. W. - necessary in killing Hargett. It not consider connection cases to this cited.] conspiracy contemplated the or not the whether claim, upon true, evidence, rests and if The State’s case its But, shows, appellant himself committed the murder. ac evidence, conspiracy cording the State’s did the un to involve forcibly purpose taking Hargett from room and lawful his physical custody him subjecting to the control of the con through which charged and thus became means spirator’s crime statements to referred had committed. The direct reference was to the purpose above mentioned conspiracy. of the For the same testimony' reasons of Fowler as to conversation between himself, Lasley Hargett Hargett’s Lasley room when Fowler get Hargett went there to was admissible. assigns error the admission certain other
evidence follows: Crader was if Witness asked he had a§ made objection
statement to Mitchell. Without one he Appellant’s objection answered he to the had. question next to what he Mitchell as had told sustained. After falsely Fowler on admitted that cross-examination had he testified any inquest, at the denying knowledge killing coroner’s many things contrary testifying relative to his thereto testimony permitted re-direct trial, at the he to state on ex- questions amination counsel, objection, by without in answer to the State’s brother, inquest wife, his before the he had told his J. W. and his mother-in-law he saw and knew Fowler, “about what appellant’s killing.” On re-cross examination counsel asked it, replied him if the truth to which he had told them about he complain Obviously in the he had. he now of error ad- cannot testimony, objected having mission of not thereto. this assigns In admission appellant his brief error the further permitted relate testimony J. Fowler who was what of W. day after him a so George Fowler had told ]lomicj(je inquest, which corre and before testimony at ob George trial. sponded Fowler’s in the motion testimony is not jection saved J. W. Fowler’s as to successfully urged here. may new therefore for trial and George properly saved. been unavailing B'ut it would be had.it showing impeached his cross-examination been Fowler testimony contrary inquest at the that he had testified were elicited cross-examination, addition, on his facts the trial. In in' leniency him the officers favors shown him from as to inference from which an arrest, custody was after his whose he' leniency in the promised sought had been drawn he to be leniency, aas expected such he against him, or at least that case In circumstances against these testifying appellant. for reward testimony, right, in rehabilitate State had the order alleged inquest and before the prove that before he testified *19 him, operated upon could have improper influences or intimated the trial. testimony at with his consistent had made he statements 134; Maggard, W. State v. Mo. 82 S. v. Sharp, [State S. Tippett, 296 cited; State 354,W. and eases 157 S. W. ] 132.
n offered, by George Fowler on Appellant prove to cross-ex- (Fowler’s) and custody, after while in that his arrest amination privileges was Fowler accorded having denied, bail been shown usually considerations not favors and accorded purpose proving this for -the or Prisoners > (cid:127) an Fowler raising inference that had been expected, leniency promised, or that he in his appellant When testifying as did. first own in return for he case sought along Fowler this line the court to cross-examine sus- morning thereto. But the next objection the State’s tained per- reconsidered would court informed counsel that he fully matter and Fowler appellant mit to cross-examine on that permitted thereupon appellant was to and did was recalled and upon subject. fully him as as he desired to that cross-examine Any rejection when first offeréd was in the of the evidence error subsequent The further that its admission. contention cured when rejecting- the evidence first the court’s remark in offered merit. prejudicial without in court’s we think was error refusal to Neither do there permit in testify when he was em- first defendant Missouri, ^y Springfield, Frisco
I^°7e(^ at there shopmen’s progress place in at strike place taken the of'union men in the non-union men had men shops' protect non-union and that duties then against and had no connection the strikers. It was remote time existing of the homicide situation at time nor with the an to prove did not offer proof deceased. 'The1offer include any duties connection with discharged he had his fact such We how fact of- employment Springfield. do not see subject any light proved to be have-thrown fered could any case. tend- question other involved in the As to its motive or ing belonged that he to the to rebut the inference Brotherhood Trainmen, suggested by appellant, Railway State only claim, proved such in effect that he be- no but did not made long. complains testify was not permitted he honestly he
after the murder and before arrest endeavor- ^11(^ murder. He was committed Wd testify permitted acts conduct did to his His he that connection. statement that was honest- endeavoring ly murder, to find who be- out committed besides nothing ing conclusion, have added in the nature could of his evidence. effect
6. It is contended that the court erred in permitting defend ant’s Stokely witness testimony be “cross-examined from taken inquest.”
at the coroner’s The assigned reason in the motion for new trial is that it had not |)een part testimony. identified as of such At Stokely the trial called as witness for testimony defendant. in par His numerous ticulars given by inquest. contradicted that him the at His testi mony inquest at-the writing signed by had been reduced to him and at signature. the trial On he admitted his cross-examina questions tion put his attention was called to certain him and inquest his answers testimony at the which contradicted his on he admitted, the trial. Some he others he either denied or said any did objection not remember. No was made to of this examina tion. In permitted rebuttal in the State was to read evidence questions specif about had been answers which witness ically asked his on cross-examination. This was offered and ad impeachment. purpose mitted for the Then for the first time objected appellant ground testimony on the that “where is taken against right a defendant he to face has the witness defendant this case face the on this did not witness examination testimony and the for that cannot be used reason.” now citing urges ground objection brief, this- one Missouri 514, 14 Mullins, 101 Mo. S. W. case, 625, State v. and several from states, other his contention. There can be none of which sustain by Stokely inquest testimony at the which given no doubt that the properly trial admitted given by him at contradicted that Eastham, testimony 240 Mo. impeach v. the trial. [State questions and answers reading 144 S. W. some The 492.] was not on his cross-examination which the had admitted witness objected ground.' to on that wag admitting in evidence urged It is error committed Creed, bed, 252 W. S. Hargett’s and State from the sheet taken v. support are cited Pearson, S. W. and State clothing bloody ln those cases conlerL'f'^on- at the time he by each the deceased worn jury. In to the and exhibited was introduced
killed no evi- serve clothing could shown the case under facts each dentiary purpose minds only inflame tend to could if such be error. But was held to its admission jurors, and matter at issue it a material light to throw evidence tends not. case was clothing in the instant of deceased The admissible. sheet produced in the room. court even and was not admitted bloody sheet to characterize it It is correct was admitted. three small only There two in his brief. does appellant spots it, dime, blood each about the size of and these could hardly passion jurors. have aroused in the minds of the These *21 spots the and location thereof on the sheet tended to light thrown Hargett’s occurred in tvhat room and to corroborate Fowler’s testimony. These not admitted facts. in As said v. State (Mo.), Porter 207 774, S. W. 777: of
“Demonstrative evidence this character is if it admissible tends to connect the' accused with the crime ... or throw any light upon a material [Citing relevant matter issue. cases.] Necessarily, the of testimony must, admission character of this largely limits stated, within the be the left the discretion of (citing trial cases) only it appears court when that this dis- cretion has been will we abused interfere therewith.” Hopkins, State 278 213 388,
See also v. Mo. S. W. 126. 394, assigned in proof by Error is the admission of Crader and Max- by Lasley well ap- of statements made Fowler before, as pellant any contends, proof there was of a conspiracy. While rule proof a there should of be con- a h'erteral of
spiracy before the acts or declarations a con- against be spirator co-conspirator, can admitted proof The inflexible. of the largely the is not order rests in rule the court. v. 98 9 S. Walker, discretion of trial Mo. 95, [State 23 Flanders, 227, 1086; 118 Mo. 646;W. State v. S. W. State v. 835; 406, 239 246 S. (Mo.), Parr, Reich S. W. v. 296 Mo. State Gilmore, W. v. Evidence 903; supra.] State circumstances from of might acting that the which an be drawn three were inference yet had been introduced. Fowler concert had testified but testimony furnished the later called and direct evidence of nothing record indicate the conspiracy. There is the that discretion, its or that the order in which evi- court abused the prejudiced the defendant. was introduced could have dence VI. challenges ground the verdict on the it- coercion, by by jury self-imposed chance arrived at length jurors agreed would set down the each thought should be imprisonment imposed, he
^erm figures by to be divided twelve and aggregate of the imposed. He imprisonment the term of quotient be jurors five new affidavits of his motion for trial filed with stating He deputy of a sheriff the affidavit filed that effect. also he, after the return of the Awrdict a few minutes substance ex- slip filed an jury paper, room depirty, found in figures -rang- appears a column on Avhich affidavit, hibit Avith apparent 526 and an diAÚsion a total ing 99, giving 10 from forty-three. quotient of by resultant tAvelve 130 jurors’
The by affidavit were the court stricken from the record, properly so, and cannot be juror considered. A cannot impeach heard to his own verdict. 65 Branstetter, [State cited; and cases State v. 223 Linn, Mo. 98. S. W. in Avhiehthe same contention was made as figures in this case.J slip deputy found sheriff Averenot shown to be in- handAvriting any member of jury. jurors’ With the affidavits stricken out there was no shoAving jurors agreed adopt in advance to as their verdict quotient resulting from dividing by aggregate twelve the of the numbers set down on they exhibit. If agree did so and did make the calculation they must have agreement abandoned the after the calculation was made agreed upon forty-three and then years, because divided produce quotient does not forty-three. It produces 43 is, forty-three years ten 10/12, ex months, *22 pressed in terms of time. jurors It has been held if have not bound accept themselves adAumce to the .unascertained quotient as their verdict, quotient but after the they is ascertained adopt it as verdict, their fact they upon fell that method reaching agreement an Avillnot vitiate [Thomp their verdict. City 977, son v. of Lamar (Mo.), (2d) W. S. developed and eases The Linn, supra, facts State cited.] v. substantially identical Avith those shown here and were in held sufficient to overthroAV jury. the solemn verdict of the soWe hold in this case. many assignments
We have considered error made appellant carefully and have examined the record and re find no ATrsible appears errors therein. have had a fair supported by tidal Amrdict is substantial evidence. Henwood, CC., is affirmed. Davis judgment concur. PER Cooley, foregoing C., adopted opinion CURIAM: —The White, J., Blair, J., P. opinion concur; as the court. J., Walker, absent. George al., Haid et ex Wilhelmina Fichtner F.
The State rel. Judges Appeals. (2d) S. W. 1045. Louis St. Court Two, December Division