The State v. Daly
| Decision Date | 31 March 1908 |
| Citation | 109 S.W. 53,210 Mo. 664 |
| Parties | THE STATE v. FRANK DALY, Alias A. C. BILES, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Hugo Muench Judge.
Affirmed.
H. H McCluer, John A. Gernez and Thomas W. Ditty for appellant.
(1) The court committed error in permitting witness Brown to testify to the movements, actions, conduct and statements of defendant after the commission of the alleged offense. It was no part of the res gestae. But assuming the competency of the repetition of defendant's admissions or statements to Brown, then the court should have given to the jury a cautionary instruction thereon, and its failure so to do is error. State v. Hendricks, 172 Mo. 669. (2) The court committed error in admitting the testimony of the witness Hartman as the result of his attempt to make a chemical analysis of the contents of the galvanized bucket given him by Spencer Stewart. The autopsy was held November 11, 1906; at that time the body was opened up. The body was received by the undertaker on the 12th of November, and the viscera placed in a galvanized bucket, not sterilized. The bucket had been used for washing dead bodies. After passing from Keeton, the undertaker, to Bergasch and from Bergasch to Fath and from Fath to Stewart, it reached witness Hartman on the 14th of November, 1906, at 5:30 p. m. Where was the body from November 11th to November 12? It was not accounted for. State v. Thompson, 132 Mo. 320. In this case there was no attempt to place the viscera in a clean receptacle nor were precautions taken to prevent the part reserved for analysis from being tampered with. Rogers' Exp. Test. (2 Ed.), p. 137; State v. Cook, 17 Kan. 394. Before evidence should have been received as to a chemical analysis, the State should certainly have been required to prove at least the whereabouts of the viscera and body from the day of the autopsy until the day the bucket was turned over to witness. (3) The court erred in overruling defendant's motion at the close of the State's case requiring the State to elect upon which count of the indictment it desired to proceed, there being a failure of proof as to the second count of said indictment. The evidence introduced by the State failed to show that deceased came to his death from the effects of an assault, or that an assault in any way contributed thereto. The court's failure to sustain said motion forced the defendant to introduce unnecessary testimony and to treat said assault as an element contributing to the death of deceased. The defendant was certainly prejudiced by the court's action. (4) The court committed error in failing to define the words "premeditatedly" and "malice aforethought" used in its second instruction. State v. Sims, 71 Mo. 538; State v. Harris, 76 Mo. 361; State v. Weiners, 60 Mo. 20. The court committed error in failing to define the words "violent passion" and the words "some lawful or just cause or provocation" used in the same instruction. State v. Skaggs, 159 Mo. 581; State v. Strong, 153 Mo. 548; State v. Andrews, 76 Mo. 101; State v. Forsythe, 89 Mo. 667; State v. Hickman, 95 Mo. 330; State v. Holloway, 161 Mo. 145; State v. Reed, 154 Mo. 129. (5) The court committed error in failing to define the word "corroboration" used in instruction 10. State v. McLain, 159 Mo. 340; State v. Chyo Chiagk, 92 Mo. 395; State v. Miller, 100 Mo. 606; State v. Hunter, 181 Mo. 338. (6) The court committed error in giving its last instruction in response to a communication sent in by one juror. The instruction as given was not complete or correct under the law and the facts. Additional instructions would have been proper had all the jury asked for them. State v. Miller, 100 Mo. 623.
Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, Arthur N. Sager and C. A. Newton for the State.
(1) No error was committed by the trial court in permitting State's witness Brown to testify to the movements, action, conduct and statements of the defendant after the commission of the alleged offense. Anything that defendant did or said, either prior to, at the time of, or after the commission of the crime charged, is admissible against him. It tends to show his intent, his motive and the means he resorted to of concealing the crime or avoiding detection. 1 Greenl. on Evid., sec. 214; 2 Wigmore on Evid., sec. 1048; State v. Harris, 150 Mo. 61; Wright & Carson on Crim. Consp., 217; State v. Erwood, 75 Mo. 210; Lynes v. State, 36 Miss. 625; Hunter v. Com., 7 Gratt. 645; People v. Arnold, 46 Mich. 277; State v. Grant, 86 Iowa 228; State v. Robinson, 52 La. Ann. 623; Walls v. State, 125 Ind. 403. (2) Much stress is laid by counsel for the defendant upon the failure of the experts, who testified on behalf of the State, to take proper care of the parts of deceased's body which were submitted to the chemist for analysis. This court can not lay down any iron-clad rule as to the way portions of the body should be cared for. Whether the parts taken from the body of the deceased and carried in a bucket, delivered to another witness and by him delivered to still another, and whether the same were cared for in a scientific manner, were questions of fact for the jury to pass upon. These witnesses, like all other witnesses, were seen by the jury, and the jury were in a better position than this court to determine whether or not such witnesses were reliable, and correctly stated the facts. If said witnesses told the truth about the way in which the parts of deceased's body were cared for, the places where said parts were kept and the result of the chemical analysis, then there was substantial evidence from which the jury could find that the deceased came to his death by poisoning. (3) Much stress is laid by counsel for the appellant upon the failure to define the terms "wilfully" and "deliberately," which definitions were doubtless inadvertently overlooked by the trial court. In an ordinary case of murder in the first degree, this would be a fatal error, but the case at bar is not an ordinary case of murder in the first degree. Section 1815 makes this murder in the first degree without the elements of premeditation and malice aforethought, so long as the poison was administered "wilfully" and "deliberately" in the perpetration of a robbery. State v. Jennings, 18 Mo. 435; State v. Green, 66 Mo. 648; State v. Hopkirk, 84 Mo. 287; State v. Neuslein, 25 Mo. 111; State v. Green, 66 Mo. 631; State v. Swain, 68 Mo. 605; People v. Vasquez, 49 Cal. 560; State v. Boice, 1 Hous. Crim. Cas. 355; State v. Jones, Ib. 21; State v. Meyers, 99 Mo. 113; State v. Foster, 136 Mo. 655. (4) The argument of defendant's counsel that error was committed in allowing defendant to be tried upon an information which contained two counts, is without merit. At repeated intervals during the trial of the case, the defendant moved the court to require the State to elect upon which count it would stand. This motion was repeated at the close of the testimony given by Dr. Gradwohl, and the State elected to try on the first count, and the case was submitted to the jury on the first count alone. (5) The alleged failure of the trial court to define, by instructions, the words "violent passion," and "some lawful or just cause of provocation," cannot be considered as error. Aside from that, defendant did not specifically save his exceptions to the alleged failure at the time.
On the 12th day of February, 1907, the grand jury of the city of St. Louis returned an indictment against the defendant, charging him with murder in the first degree. The indictment was in two counts, the first of which charged that the defendant gave to one Robert Harvey a large quantity of morphine mixed in a glass of beer, which said beer and morphine the said Harvey drank, and from the effects of which he died. The second count charged that the defendant gave to one Robert Harvey a large quantity of morphine mixed in a glass of beer, which said Harvey drank, and that the defendant then struck, beat, kicked and wounded the said Harvey in the chest and body, inflicting certain mortal wounds and fractures of the ribs, and from the effects of said morphine and wounds so administered the said Harvey died. The defendant was put upon trial on March 22, 1907, and convicted of murder in the first degree under the first count of the indictment. Defendant's motions for a new trial and in arrest of judgment having been overruled, he appealed.
The evidence for the State tended to prove that the defendant was known by two names, Frank Daly and A. C. Biles, and that he resided in the city of St. Louis. The deceased was an engineer, and lived with his family at Osage City, Missouri. For several days prior to the 9th day of November, 1906, the deceased and the defendant had been visiting a saloon known as the Ohio saloon, on the southwest corner of Market and Seventh streets, in St. Louis, and had been drinking considerably. On the afternoon of said day, the deceased, the defendant and one Joseph Brown were sitting at a table in said saloon, drinking beer, the deceased usually paying for the drinks. A dispute arose between the deceased and the waiter as to whether or not he, the deceased, had paid for three bottles of beer which he had ordered and which had just been brought to the table by the waiter. Having been assured that the beer had not been paid for, the deceased got up from the table, pulled a roll of bills out of his pocket and handed the waiter a five-dollar bill to pay for the beer. While the deceased was doing this, the defendant and Brown were sitting at the table watching him, and the defendant, when he saw the bills, "nudged" Brown in a significant way, calling...
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