101 S.W.2d 22 (Mo. 1936), State v. McKeever

Citation:101 S.W.2d 22, 339 Mo. 1066
Opinion Judge:BOHLING
Party Name:The State v. George McKeever, Appellant
Attorney:Geo. F. Hollis and North T. Gentry for appellant. Roy McKittrick, Attorney General, and Drake Watson, Assistant Attorney General, for respondent; Max Wasserman, Aubrey R. Hammett, Jr., and Arthur O'Keefe of counsel.
Judge Panel:Bohling, C. Cooley and Westhues, CC., concur.
Case Date:December 09, 1936
Court:Supreme Court of Missouri
 
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Page 22

101 S.W.2d 22 (Mo. 1936)

339 Mo. 1066

The State

v.

George McKeever, Appellant

Supreme Court of Missouri

December 9, 1936

Page 23

[Copyrighted Material Omitted]

Page 24

Appeal from Callaway Circuit Court; Hon. W. M. Dinwiddie, Judge.

Affirmed.

Geo. F. Hollis and North T. Gentry for appellant.

(1) The court erred in overruling defendant's application for a continuance on account of the absence of two material witnesses, one of whom was in the Minnesota penitentiary, and defendant and defendant's attorneys did not know what facts he would swear to till June 10, 1935, two days before the day of trial, which was too late to take his deposition. The other material witness was in Carbondale, Illinois, and defendant and defendant's attorneys did not know what facts he would swear to till the morning of the trial. Under such circumstances, this court has held it to be error to overrule a defendant's application for a continuance. State v. Swofford, 12 S.W.2d 442; State v. Kauffman, 329 Mo. 823; State v. Wade, 307 Mo. 279; State v. Hesterly, 182 Mo. 32; State v. Warden, 94 Mo. 650; State v. Neider, 94 Mo. 81. Especially is that true when it was defendant's first application for a continuance. State v. DeWit, 152 Mo. 856; State v. Maddox, 117 Mo. 683; State v. Bradley, 90 Mo. 162; State v. Maguire, 69 Mo. 204. (2) The court erred in overruling defendant's motion, filed before the trial, to require the State to produce the written confession of State witness McNeiley, to the effect that he and one Eloy McKeever shot and killed Ben Booth, and affidavits procured by the State Highway Patrol from State witnesses, to the effect that Adam Richetti shot and killed Booth. State v. Tippett, 317 Mo. 326; Kelly's Crim. Law (3 Ed.), sec. 373, note 111; Underhill's Crim. Evidence (3 Ed.), sec. 396. (3) Defendant's counsel should have been allowed to examine the members of the panel regarding their willingness to convict on the testimony of the accomplice Francis McNeiley. This court once said, "Hence the importance and propriety of allowing a liberal latitude in the examination of the panel, on their voir dire." State v. Mann, 83 Mo. 598; State v. King, 174 Mo. 658; State v. Miller, 207 S.W. 798; Theobold v. Transit Co., 191 Mo. 395. Especially after the prosecuting attorney questioned them on the subject of McNeiley's testimony. (4) The prosecuting attorney, in his opening statement, should not have referred to another crime committed by the defendant, to-wit the robbing of a bank in Gretna, Nebraska, three years before the commission of the crime here charged. This was objected to by defendant at the time, but his objection was overruled by the court, which was error. State v. Caudle, 299 Mo. 378; State v. Dixon, 253 S.W. 748; State v. Stubblefield, 157 Mo. 365. (5) It is fundamental that evidence of the commission of a crime, other than the one charged, is not admissible against a defendant, even though such other crime was committed on the same day or the same night as the one charged. (a) Evidence that defendant and another man robbed a bank in Gretna, Nebraska, three years prior to the crime charged, was not admissible. State v. Johnson, 318 Mo. 605; State v. Mohr, 316 Mo. 208; State v. Presslar, 316 Mo. 149; State v. Davis, 315 Mo. 1294; State v. Barker, 249 S.W. 77; State v. Wagner, 252 S.W. l. c. 698; State v. Phillips, 233 Mo. 305; State v. Horton, 247 Mo. 666; State v. McNamara, 212 Mo. 164; State v. Brown, 188 Mo. 464; State v. Spray, 174 Mo. 577; State v. Young, 119 Mo. 522; State v. Parker, 96 Mo. 389; State v. Reed, 85 Mo. 197; State v. Goetz, 34 Mo. 88; 1 Bishop on Crim. Law, sec. 1124; State v. Fenley, 309 Mo. 545; State v. Rider, 90 Mo. 61; State v. Speyer, 194 Mo. 471; State v. Speyer, 207 Mo. 544; State v. Buxton, 324 Mo. 85; State v. Irvin, 324 Mo. 221; State v. Whitner, 46 S.W.2d 581; People v. Minney, 155 Mich. 534; Gardner v. State, 55 Tex. Cr. Rep. 400; People v. Gruntz, 212 N.Y. 72; State v. Eader, 36 Wash. 482; Gaugh v. Commonwealth, 87 S.W.2d 97. Evidence of the commission of a crime, other than the one charged, is admissible when a defendant is charged with the murder of an officer, who knew of such other crime and who had or was trying to arrest defendant. State v. Spaugh, 200 Mo. 594. And evidence of the commission of such a crime is admissible when such conduct is so closely related to the crime charged as to supply a motive or intent, the other crime having been committed in the same way and at about the same time and place. State v. Bailey, 190 Mo. 281; State v. Hyde, 234 Mo. 237. When evidence of the commission of another crime is properly admitted, the court should state the purpose for which it is admitted, and also give an instruction to that effect. State v. Meininger, 306 Mo. 693; State v. Letz, 294 Mo. 343; State v. Bersch, 276 Mo. 419; State v. Young, 266 Mo. 734; State v. Smith, 250 Mo. 369; State v. Wilson, 223 Mo. 171; State v. Hodges, 144 Mo. 54; State v. Turley, 142 Mo. 411; State v. Bayne, 88 Mo. 611. (b) Evidence that Francis McNeiley, in April, 1933, bought a Model T Ford coupe from Sam Barrack in St. Louis for twenty dollars, that he (McNeiley) bought it for the purpose of obtaining Missouri license plates, and that he obtained such plates under the name of "Joe Clark," which name he forged, was not admissible, the defendant not being present and not in St. Louis. Evidence of the commission of other crimes is not admissible, unless the defendant is shown to have had some connection with them. State v. Bersch, 276 Mo. 415; State v. Meysenberg, 171 Mo. 59; State v. Huff, 161 Mo. 488; Kahn v. State, 105 N.E. 386; 16 C. J., sec. 1145, p. 594. (c) Evidence that defendant went under two assumed names after the Nebraska bank robbery, and prior to the commission of the crime here charged, was inadmissible; as there was no allegation to that effect in the information and he was not prosecuted under any alias; and such evidence tended to prove the commission of another crime by defendant. Prejudicial and irrelevant evidence should not be admitted. State v. Griffie, 118 Mo. 197; State v. Moreaux, 254 Mo. 408; State v. Baldwin, 317 Mo. 779. (d) In the instant case, the defendant did not testify nor put his character in issue. Hence the rule stated in the Wellman case applies, "When he (defendant) does not testify nor otherwise place his reputation in issue, such evidence cannot be admitted." State v. Wellman, 253 Mo. 319; State v. Jones, 306 Mo. 448; State v. Conway, 241 Mo. 279; State v. Beckner, 194 Mo. 289; R. S. 1929, sec. 3692; Underhill on Crim. Evid., sec. 78. (6) Error was committed when Hon. T. A. Faucett, prosecuting attorney of Callaway County, said that the defendant and his companion visited the Gretna, Nebraska, bank three years before, and said, "Back, back, stick them up." There was no evidence that either the defendant or his companion said, "Stick them up." Statement of something not in evidence is reversible error. State v. Webb, 254 Mo. 436; State v. Wigger, 196 Mo. 103; State v. Lockhart, 188 Mo. 436; State v. Leaver, 171 Mo.App. 376. (a) Error was further committed when the prosecuting attorney, Mr. Sapp, in violation of the statute, referred to the fact in his closing argument that defendant had not denied the crime charged. R. S. 1929, sec. 3693; State v. Watson, 1 S.W.2d 840; State v. Shuls, 329 Mo. 253; State v. Drummins, 274 Mo. 643; State v. Volz, 269 Mo. 204; Jackson v. State, 87 S.W.2d 482.

Roy McKittrick, Attorney General, and Drake Watson, Assistant Attorney General, for respondent; Max Wasserman, Aubrey R. Hammett, Jr., and Arthur O'Keefe of counsel.

(1) The application for continuance was properly overruled. State v. Cummings, 189 Mo. 640; State v. Crane, 202 Mo. 77; State v. Pagels, 92 Mo. 308; State v. Wilson, 85 Mo. 140; State v. Cochran, 147 Mo. 516; State v. Mosley, 22 S.W.2d 785; State v. Jasper, 24 S.W.2d 163; Sec. 3654, R. S. 1929; State v. Smith, 59 S.W.2d 722; State v. Dalton, 23 S.W.2d 4. (2) The motion to produce the confession of McNeiley and affidavits was properly overruled. State ex rel. Railroad Co. v. Hall, 325 Mo. 104; State ex rel. Page v. Terte, 324 Mo. 928. (3) No reversible error was committed in the examination of the jury panel. State v. Pinkston, 79 S.W.2d 1046. (4) The prosecuting attorney's opening statement identifying the gun taken from the Nebraska bank was not objectionable. Point 5. (5) Evidence of the Nebraska bank robbery is admissible for the purpose of identification of the defendant. State v. Kowertz, 25 S.W.2d 116; State v. Harrison, 285 S.W. 86; State v. Barnes, 204 S.W. 266; State v. Hyde, 234 Mo. 225; State v. Dunwoody, 231 Mo. 54. (a) Appellant's complaint that evidence was improperly admitted that defendant went under two assumed names after the Nebraska bank robbery, and prior to the commission of the crime here charged, and that there was no allegation to that effect in the information and he was not prosecuted under any alias, is not before the court because there is no assignment in the motion for new trial preserving it for review. (b) Appellant's complaint that evidence was improperly admitted that Francis McNeiley and defendant in July, 1934, were in Sioux City, Iowa, where defendant was arrested, and that McNeiley escaped with the automobile, gun, pistols, etc., is not reviewable here because no assignment is made in the motion for new trial preserving it for review. (c) Appellant's complaint that evidence as to the bullet fired in 1925 in the Nebraska bank was inadmissible because too remote, and his complaint that the bullets offered in evidence by the State were not properly identified, is without foundation. The evidence was not too remote, and the identification of the bullets was complete. State v. Fenley, 275 S.W. 40. (6) The appellant's impeachment evidence proffered as to witness Means...

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