*1 607 аuthority who give jurisdiction to the officer made necessary things required liim with all compliance sale, strict require- from the carrying That the variation out sale. statute sufficient harm is not trivial and did the owner no ments of law was lex’ if minimis curat disregarding it. The maxim ‘De non reason for ’’ great caution. applied with tax at be applicable to sales all shоuld an administra well established that when We think the rule is with the sale, compliance a tax a strict property tive officer sells from the 1931 and 1932 taxes required. The statutes omission city respondents because by the the notice of sale voided the sale required by Sec delinquent did all the notice not include taxes 6208, supra. tion judgment
It should be reversed fоllows that of the trial court to enter and the for the trial court cause remanded with directions ’ It is judgment conformity answers. prayers appellants with the so All ordered. concur. Floyd Taylor, (2d) 802. Appellant. S. W. State Two, March
Division *2 Boy Attorney General, Nolen, and Olliver W. Assistant McKittrick, Attorney General, respondent. for WESTHUES, Floyd (Buoy) and his Appellant, Taylor, C. charged
brother an information filed Circuit County Ap- murder Palmer Gilliland. Court of Ozark with the degree pellant guilty of murder in the first and sentenced imprisonment penitentiary for the term of his natural life. *3 appealed. From At the all evidence the this sentence close of the Ralph acquittal trial court directed a verdict of the as to defendant Taylor. рrevious In the This was the third trial of the case. two jurors agree upon trials the were unable to a verdict. By
Appellant a in his has not filed brief this court. motion appellant preserved questions for new trial a number of for our A review. motion by appellant disqualify was filed to the sheriff deputies selecting granted his jurors. in venire The trial court the of the deputies motion as to the sheriff the but overruled it as to designated one of the of deputies to select the venire. action ^This the trial assigned Appellant argues court was error. the deputies were under the From dominion and influence of the sheriff. the any disqualified record arewe unable to ascertain fact which True, the sheriff. the active evidence disclosed that he took an investigation interest a material witness of the and was case for the State. court, In view of the out of abundance trial an caution, of appellant’s sustained an motion. That the sheriff took part him, in investigating disqualify active the did not as that case duty. was his sworn ruling The trial not prejudicial of the court was rights the 998, to of appellant. McDonald, 342 State v. Mo. [See 119 (2d) 286, S. W. (2, l. c. 288 3).] jury
When being granted the selected trial court number challenges of for cause to and refused others. The refusal sustain a number challenges assigned of as error. There was naturally notoriety much throughout county with reference to disappearance of finding body. It Gilliland and the of his would have been jury difficult indeed men selected of who have had not heard something occurrence. about the The record disclosed that the trial in permitted inquiry court this case full ascertain any whether prospective jurors any way prejudiced were against appellant. jurors examined, The named the motion were they disclosed that
and while their evidencie had heard the dis case they expressed not disclose that cussed, it did any opinion as to guilt appellant. they As shown their evidence qualified against jurors. point The is ruled McCracken, [State (2d) 372, (1) 108 W. l. 341 Mo. S. c. and cases there cited.] Appellant contended the evidence was insufficient to sustain all the verdict. the evidence was Since circumstantial we will state proven by Deceased, the State in detail. Gilliland, facts Palmer was unmarried. He at times lived alone and at other had a .times family living in home with him. He his owned much livestock and fifteen hundred acres of land in about portion northwest of Ozark County. defendant, Ralph Taylor, lived aon farm owned his May 5, 1937, Flоyd appellant, Taylor, father. On went home pretext purchasing Gilliland on the day some cattle. He spent the driving looking with Gilliland about and at night the livestock. That stayed at the home of morning they next together appellant’s were seen home. A testified witness that he sitting appellant’s saw' Gilliland tieing car shoestrings; he, witness, looking for his cows and rodе running on the boárd appellant’s car, which appellant driving; that he went with them for a short distance cows; where he found his that this was a short distance from Taylor. of Ralph home This witness when approached also testified that the ear Gilliland said: Buoy going with me. “Come take me home. He will early be back in little bit.” This was morning May A time later short two of the passed State’s witnesses the home of Ralph Taylor. They they saw ain car coming through pasture house; near the stopped *4 got them an one of ax and returned to the car they and thereafter drove back toward pasture general the and went in the direction body of later the where of Gilliland found. was One of these wit later, nesses tеstified that he at about 9 :00 appellant saw and m., A. Ralph driving through Almartha toward Gainsville. About 10:00 appellant and Ralph were seen in a restaurant drinking and A. es m. tablishment, Shaw, owned one in Gainsville. Two witnesses testi fied that while in the appellant restaurant heard state that he purchased had teama of horses and some fine cattle from Palmer Gilliland; that leaving Gilliland was country; the that he had taken highway Gilliland to number five and that Gilliland had said he was going Arizona California, and then to selling that he was out. appellant These witnesses testified that concluded his remarks with Gilliland reference to in substance us, as “Just between I follows: through believe Gilliland country. with this I don’t believe he will ever be back here.” Gilliland was not by anyone seen alive early morning May after 6, ,To the of when he was with sequence understand the in necessary evidence next it is to state when 1937, a On June found. body was of Gilliland the whore and searching for of purpose for the fifty men was formed of about posse occupied farm on body the the posse found of Members Gilliland. depressiоn a the house in mile from about one-fourth Taylor, by Ralph four feet pileA of brush about and brush. woods surrounded the pile brush was top of this body, and on on the height was Floyd with was last seen here that Gilliland dog. a Note carcass of morning May 6. On the of Taylor place on Ralph the Taylor near tending corn to his Dewey was Cook following Tuesday witness the Tаylor Floyd body found. was where the place near the in a field bought. had looking cattle he after some him he was and said came to Cook, of according evidence conversation, to the that In the course of by Cook, tied which was to a dog owned Floyd suggested that subject “fits” was killed because it field, should wagon be saying Floyd agreed, thеreupon and left might be “mad.” Cook time, .dog. He returned in short get gun and kill the he would about one at a which was dog drug it a fence killed the body 10, the of Gilliland fifty yards where, on from June hundred pile. dog found on the brush Cook found. This was the dog over pitched he had Floyd over the fence after that climbed see him gone minutes; he could not about fifteen and was Appellant, while 'beyond and brush. because the woods fence throwing dog it testifying witness,, killing as a admitted he fence, over the but left it there and claimed he also day following dog suggestion. The killed the at Cook’s riding again corn field. At this time came Cook in.the appellant said he .was an ax. Cook testified that horse had bottom; left, but going cut brush some hot to cut couple returned in a of hours and it was too stated on his bloody; a little of scratches bi’ush “and his hands bit body also evidence that hands.” The State introduced larger on; piled first small brush and then brush covered with appearance brush next to the had the smaller that Ixaying larger brush. The brush had all been been cut before dayA spring. the leaves had formed that оr after so cut after charge twenty-three disappeared appellant took head hqrses belonging placed cattle axxdtwo to Gilliland and cattle farm, Taylor. .Appellant had made statements to .part purchased purchase effect that the stock price paid Gilliland cash in the sum of His evidence $385. substantially tidal wаs the same. Witness Cook also testified that the *5 next, day dog Hunting” sign after the killed a placed was “No was gate Taylor a on the farm. Other testified that witnesses such, they signs saw a put up number of that about had beexx. body
time in the vicinity the was found. where .Appellant being testified at the trial and admitted with Gilliland morning May emphatically 6. He denied on tlie May oil He admitted that he anything with the murder. to do ho had place pasture'with and went over to Ralph’s his brother stopped at which he wanted to or sell to a red cow trade look at to Gilliland dog they there heard a bark the He that while in stated
Gilliland. dog squirrel treed; that the had a investigating found on woods and minutes and then he took Gilliland stayed about fifteen tо they nothing him. He five more of also testified and saw highway number part purchase in sum of of the $385 the paid that he cash money this from He that he borrowed price the-cattle. testified this, but appellant The father corroborated in their evi- his father. very in subject many respects upon dence indefinite by and also was contradicted other еvidence contradicted evasive. It by money appellant. the father and No alleged statements made or at safe which body the of Gilliland his home was found where, according appellant’s evidence, may to he have kept, he money. Appellant testified placed the that after Gilliland had taken kept he where monеy went the room and closed safe alleged The introduced evidence statements door. State also to made sheriff he have been when questioned appellant day body before the was found he asked appellant body, appellant replied:' where he would for the look “Well for Palmer I if I to and look Gilliland would look on place appellant him, first.” He further testified that then asked body they the sheriff: “Can until convict fellow is found?” replied: To which “Well I wouldn’t think And then ap- so.” pellant “Well, anybody they having lot of said: like convicted.” On appellant cross-examination sheriff was asked else what said said, Palmer, and he “He testified as follows: 'Poor old he is dead. killed, He but hе is would be worth a lot more me alive than ’ ’’ body would be dead. After found the officers went to the jail paper giving and showed finding, the account whereupon alleged he is to have said substance: “I am a convicted Ralph Taylor man.” alleged is to have stated the sheriff before body found, was found: “If the I surprised wouldn’t be if it try ain’t found on our placе boys.” throw suspicion on us The sheriff and another witness also testified that after Taylor and Ralph paper they questioned, read were when separated about to be one of the defendants said in substance: “I will on myself,” take this replied, other “No, you won’t, my I will part take many of it.” are There other minor details of pointing guilt evidence in the rеcord ap- pellant which we deem unnecessary to relate. We deem the above evidence, though circumstantial, sufficient to sustain the verdict. It requirements meets the law of the that circumstantial evidence to authorize a conviction must exclude any theory reasonable of the
613 complete form proven must innocеnce, the facts aiid that defendant’s must other and with each consistent chain, must be 149, S., page sec. C. J. guilt defendant. of the 907.] [23 an instruction to submit assigned error for failure Appellant justify the did not degree. The evidence on murder second facts above related In to the an instruction. addition giving of such lying found body of Gilliland evidence showed that over head downward, spread sack hole, face with a depression or practically head was that the and shoulders. The coroner testified pieces small decomposed; up twenty-five or picked that more a few bone where the head had been. Another witness that days and the offensive odor had after the had been removed еxamination, pitch he took a subsided so that he could make a close hair to fork and lifted a or bone and matted mass crust broken gether lying. spot from the where head had been witness This and the coroner there testified that where the head been was a depression of is mute evidence several inches in the earth. That showing Evidently brutal hеad and horrible murder. of the deceased ground had been beaten crushed into into the the skull fragments. unnecessary. Further An instruction on comment is degree second justified proven murder the facts was not because showed degree nothing murder in the first else. Murder in the degree may first Lewis, be shown circumstances. State [See 518, 273 Mo. 201 80, l. (3-6); Page, (2d) S. W. 130 c. 84 State v. S. W. 520, l. c. (1, 523 2).]
Thе trial
gave
informing
jury
court
an instruction
substance, that if
from all the circumstances and the evidence
beyond
Floyd Taylor
reasonable doubt
killed Gilliland
that
for the purpose
robbing
killing
him
property,
of his
then such
murder in the
degree.
first
Appellant urges
evidence
that the State’s
did
justify
not
a finding
to rob Gilliland
intended
property.
To
agree. Appellant
this we
аdmitted
cannot
getting over $400 worth of
property immediately
Gilliland’s
after
disappeared.
Gilliland
ap
justified
evidence
the inference that
pellant did
pay
not
for
property
killed
for
and that he
the purpose of getting the cattle
and horses.
Instructions
nature have frequently
approved.
McGinnis,
been
158
State v.
[See
Mo. 105,
121,
l. c.
59
737,
87;
White,
S. W.
l. c.
Stаte v.
Mo.
time you did night? to bed expect remember. I A. I don’t we sat around and talked probably till late bed-time. Was
“Q- said, there anything about Palmer tha.t conversation anywhere?” objection
going The State’s wаs'sustained the court Appellant the time informed ruling assigned as error. explain appellant’s statements the evidence was admissible to *7 May 6, Ebrite and alleged have been made to witness others on to gone Arizona, evidence was also to and that the that Gilliland The intent intent or state of mind. admissible to show Gilliland’s immaterial, it evident he did or statе of mind Gilliland was as is of not material go to Arizona. Whether or not he intended to was not making the appellant’s Appellant to defense. did admit state- not May 6, concerning place, as testified to ments Gilliland on at Shaw’s by making witness Ebrite and others. Had he admitted such state- ap- we ments would be confronted with different situation. Since pellant making nothing did not admit such there was for statements say him explain. jury appellant to It was for the to whether or telling against the State’s witnesses were the truth. The is ruled n appellant. Bushong The evidence disclosed that one Harold anwas em ployee immediately disappearance Gilliland and that after the Bushong charge took moved home of Gilliland. Appellant by evidence Bushong offered witnesses that had stated he received Gilliland, Bushong letters from two also had sold hogs belonging objected to Gilliland. The State to this evidence hearsay because it Bushong present in court and could be called as a Bushong witness. had testified for the State át a previous trial. given His evidence a рrevious placed trial was in the ease, record in this jury. but was not read to the The evidence by offered appellant concerning these matters for part the most hearsay as to alleged statements by Bushong." to have'been made Such hearsay evidence was ruling inadmissible and the of the trial court was correct. The evidence in record, given by Bushong as at a previous trial, opinion was in our very damaging That probably accounts for the fact that did not call him as a witness, but justify that did not hearsay admission of evidence. The record also discloses Bushong ex-convict, was an per haps that is the'reason the State did not desire to vouch for evi dence. Appellant assigned also error admission evidence with reference appearance to the Hunting” signs "No vicinity where found, because evidence failed to show the defendant had anything signs. to do with the There is no merit'in point. It was a circumstance to be considered jury. Practically every day, after disappeáréd, ap- Gilliland had pellant was in viсinity signs. cattle, of these He had his which he bought claimed he from' Gilliland, Ralph Taylor’s place. Ap- the fénces in this vicinity, n and we pellant testified that repaired may infer signs if were them. offered Appellant there saw signs liis father and another witness there evidence prior May placed 8. The father of testified that he had signs a prior such there on date.' assignments
A number of other made in the for new motion trial have been .examined with reference to record in the case merit. be, without The information and verdict and other matters of record disclose no error. judgment Cooley CC., Bohling, is affirmed. concur.
PER foregoing CURIAM: The opinion C., by Westhues, adopted the-opinion judges All court. concur. (2d) Clark Nienaber, Appellant. W.
The State S. *8 Two,
Division March