State v. WrightState v. Wright
The State‘s testimony from eyewitnesses was that late in the afternoon of March 15, 1933, the appellant entered the drug store of the
The appellant testified that a boy named Bobby, whose full name he did not know, and another boy with whom he was unacquainted, told him Dr. McCampbell, the deceased, had lost so much money in holdups that he had taken out insurance on his money and had arranged with a third party to stage a fake holdup and regain his money. They mentioned that a large sum would be divided between them if they carried a robbery through and assured him there would be no shooting. The appellant undertook the job with the result aforesaid. He said the deceased began shooting first and prevented him from leaving the store, and that he then fired two or three shots but not in the direction of the deceased. The appellant was not injured in the encounter. He picked up the doctor‘s revolver to prevent further assaults upon himself and took one dollar and some cents out of the cash register and fled. He admitted he made two voluntary statements to the police, one of which substantially corroborated his testimony at the trial. In fact this statement went a little further. In it he said he could not tell whether he had hit the deceased or not on account of a partition between them; and that the two boys said the deceased had $200 at the store.
We can see nothing in this testimony calling for a change in the views expressed when the case was here before. It is obvious that on the State‘s evidence the homicide was committed in the perpetration of a robbery and was therefore murder in the first degree,
But the State proved by a former partner of the deceased that he had no burglary or robbery insurance at the time he was killed. The appellant was entitled to the benefit of that evidence so far as it was in his favor, even though he disputed it and the evidence was
The eleventh assignment in the motion for new trial asserts the circuit court erred in allowing the coat and other clothing of the deceased to be introduced in evidence and exhibited to the jury: (1) For the reason that same was not proper rebuttal; (2) because the exhibition of the coat prejudiced the jury; (3) and because no expert was used by the State to prove the presence of powder burns or marks on the coat, thereby causing the jury to assume the role of experts in determining that fact. To get at the bottom of this assignment we must refer again to the testimony.
The appellant introduced as a witness Dr. C. G. Leitch, chief deputy coroner of Jackson County, who had performed an autopsy on the deceased the day after the homicide. He found two bullet wounds in the chest near the right shoulder with powder burns around them, and said the revolver must have been as close as fourteen inches when it was fired to produce the burns. On cross-examination he stated the powder burns could not have been made at a distance greater than fourteen inches through clothing if the clothing was heavy, but that there was a possibility, not of powder burns, but of “tattoo“—little flakes of powder—being on the clothing if the firearm were farther away. The clothing was not in the courtroom at the time but Mr. Hadsell, one of counsel for appellant, spoke up and said “I can testify as to what the clothing showed.” The prosecuting attorney did not accept this proffer. On redirect examination the deputy coroner expressed a doubt as to whether the powder burns could have been produced by a revolver fired at a distance of fourteen
The coat was introduced in evidence in rebuttal, the prosecutor stating he did so “in view of the testimony here that there were powder marks upon this coat and upon the body.” When the garment was exhibited to the jury he called their attention to a hole in the right lapel and one just below it, corresponding with the location of the wounds on the body. Nothing was said by him at that time about any powder on the coat and there were no inflammatory remarks. Indeed the evidence does not directly disclose whether there were powder marks on it. In these circumstances it is clear the court did not err in admitting the coat in evidence. [State v. Shawley, 334 Mo. 352, 369, 67 S. W. (2d) 74, 83; State v. Higginbotham, 335 Mo. 102, 111, 72 S. W. (2d) 65, 69.]
We said in the beginning that twelve of the assignments in appellant‘s motion for rehearing were too general to comply with the new trial statute,
But we shall refer to three of the assignments which seem too general but nevertheless invite comment.
Assignment No. 12 avers that “statements made by counsel for the State were very prejudicial and made solely for the purpose of inflaming the jury against the defendant and thereby causing a conviction regardless of the evidence.” The argument of counsel is not preserved in the bill of exceptions. Therefore if the assignment means anything it must refer to statements made by counsel through the course of the trial. The bill of exceptions contains over 300 pages. We have found nothing in the conduct of the State‘s counsel through the course of the trial that seems in any way prejudicial to the appellant‘s legal rights. On the contrary, the court and the prosecutor accorded the appellant every consideration to which he was entitled under the law.
The thirteenth assignment charges. “That one member of the jury failed to properly answer certain general questions made by the
The sixteenth assignment is that “the verdict of the jury did not comply with the law pertaining to forms of verdicts.” The verdict was “We, the jury, find the defendant William Wright, guilty of murder in the first degree and assess his punishment at Death. Grover Gordon, Foreman.” The verdict is a part of the record proper and it would be our duty to scrutinize it whether the motion for new trial assigned error on that ground or not. It does not recite that the jury found the defendant guilty as charged in the information; but that does not invalidate it. [State v. Carroll, 288 Mo. 392, 408, 232 S. W. 699, 702; State v. Bacey, 267 S. W. 809, 810; State v. Dimmick, 331 Mo. 240, 246, 53 S. W. (2d) 262, 266.]
We find no error in the record. The appellant had a fair trial. The judgment and sentence are affirmed. All concur. Date of execution set for January 28, 1938.
ON MOTION TO MODIFY OPINION.
PER CURIAM:—On motion of the Attorney General the opinion herein is modified in the manner and for the reasons stated in the Per Curiam in State of Missouri, respondent, v. John Brown, appellant, 341 Mo. 53, 112 S. W. (2d) 568. The judgment on the verdict herein convicting appellant of murder in the first degree and inflicting capital punishment is hereby affirmed; and the cause is remanded to the trial court with directions to have the appellant brought before it and to impose a sentence of death by lethal gas in accordance with the provisions of Laws 1937, pages 222, 223.