State v. Lewis

• Decision Date: 26 February 1918
• Citation: 201 S.W. 80,273 Mo. 518
• Parties: THE STATE v. ORA LEWIS, alias DeMORRIS, and ROY LEWIS, alias JOE LEWIS, alias DeMORRIS, Appellants
• Court: Missouri Supreme Court

201 S.W. 80

273 Mo. 518

THE STATE v. ORA LEWIS, alias DeMORRIS, and ROY LEWIS, alias JOE LEWIS, alias DeMORRIS, Appellants

Supreme Court of Missouri, Second Division

February 26, 1918

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Affirmed.

A Samuel Bender for appellants.

(1) The court erred in overruling the defendant's demurrer to the evidence at the close of the State's case, because there was no evidence that the defendant Roy Joe Lewis in any way aided or participated in the killing of McKenna, and because it was not shown that they were conspirators, or that they were engaged in a common design of which the offense was a part. Green v. State, 13 Mo. 382; State v Walker, 96 Mo. 95. (2) The giving of instructions without evidence upon which to base them is reversible error. State v. Little, 228 Mo. 273; State v. McCaffery, 225 Mo. 617; State v. Clark, 221 Mo. 391; State v. Scott, 172 Mo. 536; State v. Bell, 194 Mo. 264; State v. Harris, 199 Mo. 716; State v. Ware, 62 Mo. 597; State v. Jones, 64 Mo. 391; State v. Little, 67 Mo. 624; State v. Tice, 9 Mo. 112; (3) An instruction which is incomplete and by reason of such conditions becomes a comment upon the evidence, is erroneous, and invades the province of the jury. State v. Evans, 183 S.W. 1059; State v. Fairlamb, 121 Mo. 137; State v. Cook, 84 Mo. 49. (4) It is error for the court to instruct the jury that "if the jury have a reasonable doubt arising from the lack or insufficiency of the evidence, of the existence of any such material fact as to the defendant, the jury will acquit the defendant," and is erroneous because the defendant is entitled to an acquittal upon the consideration of all the evidence as presented. State v. Christian, 253 Mo. 382; State v. Cushionberry, 157 Mo. 168; State v. Temple, 194 Mo. 228; State v. Harper, 149 Mo. 514; State v. Maupin, 196 Mo. 174. (5) Evidence of other distinct and disconnected crimes, and which throws no light upon the crime in issue, is inadmissible. State v. Young, 119 Mo. 495; Bank v. Bank, 64 Mo.App. 253; State v. Summers, 26 Mo. 250; State v. Parker, 96 Mo. 382; Swan v. Commonwealth, 104 Pa. 218; People v. Sharp, 107 N.Y. 427; Commonwealth v. Jackson, 132 Mass. 16; People v. Mollineaux, 67 L.R.A. 237; State v. Schmetler, 181 Mo. 173; State v. Harold, 38 Mo. 496; State v. Palmberg, 199 Mo. 233. (6) It is improper conduct on the part of the circuit attorney in his argument to characterize the defendants as savages, and the court's overruling an objection to such improper argument is erroneous. State v. Young, 99 Mo. 666; State v. Ulrich, 110 Mo. 350; State v. Fischer, 124 Mo. 460. (7) On indictment for murder in first degree, where the evidence is sufficient to warrant an instruction on murder in second degree, the refusing to give such instruction is error. (8) On indictment for murder, wherein a police officer is killed while making an arrest, the legality of the arrest is a question for the jury, and the jury should be instructed upon the law if the arrest were legal and upon reasonable ground of suspicion of guilt, and also upon the law if the arrest were unlawful and not based upon reasonable suspicion of guilt. Refusal to give an instruction to this effect is reversible error. Roberts v. State, 14 Mo. 138.

Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for the State.

(1) The court did not err in overruling appellants' demurrers to the evidence offered at the close of the State's case. Where there is substantial evidence to support the verdict, a demurrer to the evidence should be overruled. State v. Pollard, 174 Mo. 614; State v. Swain, 239 Mo. 728. (2) Appellant Roy Lewis was properly convicted. He was a conspirator with appellant Ora Lewis and others, in a common scheme or plan to engage in thievery, and resist arrest and punishment therefor. The killing of officers McKenna and Dillon was a part of such common design. State v. Hyde, 234 Mo. 224, 226, 237; State v. Weisman, 238 Mo. 555; State v. Rasco, 239 Mo. 575; State v. Bailey, 190 Mo. 279; State v. Jones, 171 Mo. 407; State v. Mathews, 98 Mo. 129; State v. Balch, 136 Mo. 109. (a) If several persons conspire to do an unlawful act, and death happens in the prosecution of the common object, all are alike guilty of the homicide. The act of one of them done in furtherance of the original design is, in the construction of the law, the act of all. State v. Darling, 216 Mo. 459; State v. Othick, 184 S.W. 108; State v. Bobbitt, 215 Mo. 39. (b) It is not necessary, in proving a conspiracy, to commit a crime to show an express agreement; the conspiracy may be shown by facts and circumstances from which it may be inferred. State v. Sykes, 191 Mo. 78; State v. Darling, 199 Mo. 199. (3) General assignments complaining of error in the trial court's giving and refusing instructions, are not sufficiently definite to entitle them to review. The motion for new trial should designate the erroneous instructions by reference to their number or their subject-matter. The motion for new trial in this case contains only general averments as to the giving and refusing of instructions. Sec. 5285, R. S. 1909; State v. Othick, 184 S.W. 108; State v. McBrien, 265 Mo. 604. (a) Appellants made no objection to the action of the trial court in refusing to give their instructions, and saved no exceptions to the ruling of the court. Hence refused instructions are not reviewable. State v. Morgan, 196 Mo. 184; State v. Jones, 191 Mo. 663. (b) Alleged failure to instruct on murder in the second degree is not made a ground of the motion for new trial. State v. Scott, 214 Mo. 261. (c) Alleged failure to instruct on law of arrest by police officers is not made a ground of motion for new trial. State v. Scott, 214 Mo. 261. (4) The remark of the circuit attorney, complained of, is not properly preserved for review. The objection to such remark is as follows: "I object to the remark of the circuit attorney." This language does not set forth the grounds of the objection, therefore there is nothing before this court for review upon that matter. State v. Miller, 264 Mo. 407; State v. Phillips, 233 Mo. 299. (5) The request that this case be reversed on account of incompetency of trial counsel cannot be considered by this court. Said request is not made one of the grounds of the motion for new trial. It is raised for the first time in the brief of appellants. State v. Scott, 214 Mo. 261; State v. Dreher, 137 Mo. 23.

ROY, C. White, C., concurs.

OPINION

ROY, C.

Defendants were charged by indictment with the murder in the first degree of police officer John F. McKenna. The jury found them both guilty as charged, and fixed their punishment at death. The trial court commuted the defendant Roy Lewis's punishment to a life term in the penitentiary. They were sentenced accordingly, and have appealed. After the disposal of the case in the trial court, the defendants discharged the lawyer who had represented them during the trial. Other counsel appears for them in this court, and in his brief herein he says:

"An examination of the facts and a reading of this entire record must convince this court that defendants have been prejudiced and have been prevented from fairly presenting their defense by the misconduct, lack of skill, learning, competency or experience of the attorney who appeared for defendants in the trial court. That such a situation warrants a new trial has been the ruling in many cases."

Such claim made on behalf of defendants, and the fact that, as to one of them, the punishment is death, call for a critical examination of the whole record.

No evidence was introduced on the part of the defendants on the main issue. In the following statement we shall set out simply as facts those things which the evidence tends to establish.

The killing occurred on April 7, 1916. From the previous January until then the defendants and their brother Frank lived with their mother and stepfather, Mr. and Mrs. Bubb, at 4251 Athlone Court, St. Louis, Missouri, though the evidence indicates that they, at times, had rooms elsewhere. In the rear of the Athlone home was a garage on the alley, used by the brothers. For several weeks prior to the killing the defendants had also rented and used a garage on an alley in the rear of 4172 Delmar Avenue. About March 10, 1916, two automobiles, a Ford and a Hudson, were stolen in the city. On the night of April 6th, thereafter, the defendants, their brother Frank, and another, went in those two cars to Mexico Missouri, where they stole a boy's bicycle and several hundred dollars' worth of copper trolley wire. The defendants in the Ford car pulled into the alley near the Delmar garage about half past seven the next morning. At that time Roy was carrying a loaded revolver in a holster which hung in the middle of his back, under his coat. Ora had a similar gun concealed somewhere in his clothes in front of him. McKenna, on a motorcycle, followed the defendants into the alley, where he arrested and searched them both, taking Roy's gun from him, but failing to find Ora's. McKenna took the defendants into an oil-filling station on the alley, and directed the person in charge, George Fisher, Jr., to call the wagon at police headquarters. Fisher called on the telephone, which was in the corner of the room on the wall. The defendants were standing about a foot apart to the left and towards the rear of Fisher. They were facing McKenna, whose attention was attracted for a moment by the arrival of another automobile back of him and just outside the station. As the officer turned to look at the car, Ora pulled his gun and shot the officer, killing him. Fisher turned from the telephone just in time to see the shot, but...