The State v. Shelton
| Decision Date | 23 November 1909 |
| Citation | 122 S.W. 732,223 Mo. 118 |
| Parties | THE STATE v. FRANK SHELTON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Christian Circuit Court. -- Hon. John T. Moore, Judge.
Affirmed.
Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
(1) (a) The form of the amended information upon which the defendant was tried, conforms to the precedents in like cases. State v. Ferguson, 162 Mo. 671. (b) The allegation that the murder was committed with an ax, "which they then and there in their hands held" is not the best form, but does not render the indictment fatally defective. State v. Dalton, 27 Mo. 14; State v Payton, 90 Mo. 225; State v. Grimes, 29 Mo.App 471. (c) The motion to quash, in respect to this feature of the information, merely alleged that "the information fails to state a cause of action or charge defendant with any crime under the laws of the State of Missouri." The Statute of Jeofails is as applicable before verdict as after verdict. Sec. 2535, R. S. 1899; Sec. 2481, R. S. 1899. And while the ground of the motion mentioned is sufficiently specific (State v. Weeks, 77 Mo. 496), yet it is not true in fact that the information charged no offense. (See above authorities.) Other objections to the form of the information, etc., must be specified in the motion if they are to be considered here. Sec. 2532, R. S. 1899. 2. The motion to quash also charged that defendant had not been accorded a preliminary examination, nor yet a right to one and that, therefore, the information should be quashed. (a) The transcript of the justice of the peace sent up with the record, shows that this statement of the motion was not true in fact. (b) On defendant's effort to contradict the transcript of the justice, and show that, despite its recitals, defendant, Shelton, neither had nor waived a preliminary examination, the trial court heard evidence, pro and con, and found the fact against defendant. This court will not disturb that finding. State v. Hathorn, 166 Mo. 241; State v. Hunter, 181 Mo. 333; State v. Gordon, 196 Mo. 198. (2) According to Killion's testimony, defendant's motive was robbery. Defendant declared immediately after killing Bowen that he "got the money." It was not improper to supplement this evidence with proof that Bowen usually had money in his possession. State v. Donnelly, 130 Mo. 651; State v. Jackson, 95 Mo. 652. After his plea of guilty, Killion was competent. This is the customary method of securing the testimony of a joint defendant. State v. Minor, 117 Mo. 305; State v. Myers, 198 Mo. 252; State v. Beaucleigh, 92 Mo. 493; State v. Walker, 98 Mo. 103. The inducements, if any, held out to Killion, affected only his credibility and not his competency. State v. Riney, 137 Mo. 104; State v. Myers, 198 Mo. 252; State v. Wigger, 196 Mo. 97. (3) 1. The first instruction given, as to the defense of an alibi, is a rescript of one approved by this court. State v. Sanders, 106 Mo. 195. 2. Instruction 6, as to circumstantial evidence, is not subject to criticism. State v. Avery, 113 Mo. 494; State v. Taylor, 134 Mo. 151. 3. Instruction 7 as to the weight to be given the testimony of an accomplice, follows the precedents. State v. Tobie, 141 Mo. 560; State v. Crab, 121 Mo. 565; State v. Black, 143 Mo. 171; State v. Sprague, 149 Mo. 423. 4. Instruction 8 as to the credibility of the witnesses, is an approved form. State v. McCarver, 194 Mo. 732; State v. Bond, 191 Mo. 561. (4) 1. The form of instruction 10, as requested is bad. The latter portion of it a mere comment on the evidence. It was argumentative. In the form requested, it was properly refused in any event. State v. Heath, 221 Mo. 565. 2. The accomplice who turns State's evidence is universally assumed to do so in order to escape the penalty, or a portion of it. "The implied offer of immunity is recognized by all courts." It has become a sort of equitable right. Whisky cases, 99 U.S. 599; Camron v. State, 32 Tex. Crim. Apps. 182; State v. Lyon, 81 N.C. 602. The hope of leniency is, therefore, the element which necessitates the usual cautionary instruction given in this case, and so many times approved by this court. It covered the ground included in instruction No. 10, requested by defendant -- and more. It was not necessary for the trial court to argue the matter with the jury and point out a particular reason for the cautionary instruction, as defendant requested that court to do. The cautionary instruction given and that as to the credibility of the witnesses, met all reasonable requirements in this connection.
This cause is now before this court upon appeal from a judgment of the circuit court of Christian county, Missouri, convicting the defendant of murder of the first degree. The amended information, upon which defendant was tried, and which was duly verified, was filed by the prosecuting attorney in the circuit court of Christian county on the 25th of August, 1908. Omitting formal parts, the charge upon which defendant was convicted, was thus stated in the information.
The evidence developed upon the trial of this cause upon the part of the State substantially tended to show that the deceased, William Bowen, lived about two miles south of Nixa, in Christian county. He was sixty-five or seventy years old, and was a huckster by trade, collecting poultry and produce in the vicinity of his home and making weekly trips to Springfield for the purpose of marketing his wares. Deceased was accustomed to carry sufficient money to transact his business, a considerable sum being required to purchase the produce which he hauled to Springfield on his weekly trips. The fact that he usually had money in his possession seems to have been known to a number of persons, including appellant's co-indictee. Deceased was last seen alive about dark on Tuesday, the 12th day of May, 1908, returning to his home after a trip to Springfield. Deceased's neighbors, attracted by the evident neglect from which his horses were suffering, on Thursday, May 14th, visited deceased's premises and discovered the body. It lay, face downward, on the floor in a pool of blood. A bloody ax lay near the body. There was blood upon a trunk and chair, and the former gave evidence of having been rifled. Death was caused by a blow upon the head, inflicted by a blunt instrument, which shattered the skull. The wound was necessarily and almost instantaneously fatal. Bowen had been dead thirty-six hours, or more, when his body was discovered. On Tuesday night preceding the discovery of the body, defendant and his co-indictee, Killion, and one Stewart, all of whom lived or worked in the vicinity of Bowen's home, went fishing. Soon after 9 p. m., Stewart left appellant and Killion and went home; the latter stating at the time that he and appellant were going to an old pond near by and continue fishing. They retained Stewart's seine and it was found in his yard the following morning.
Appellant on Tuesday morning, had suggested to his co-defendant that they rob Bowen. After Stewart left the fishing party Tuesday night, appellant renewed his suggestion, threatening to kill young Killion unless he acceded thereto. The latter finally agreed to aid in appellant's enterprise and the two went to deceased's house. Appellant stationed Killion in the road near the house, approached the door, rapped upon it and was admitted by deceased. Killion testified that he then saw someone leave and re-enter the house; that he heard a "lumbering and then a groan" in the house. Soon thereafter, appellant emerged from the house, stooped and washed his hands in a rivulet at the roadside, and said to Killion, "I got the money," adding an admonition to Killion "not to tell, whatever he done." App...
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