226 S.W. 4 (Mo. 1920), The State v. Garrett

Citation:226 S.W. 4, 285 Mo. 279
Opinion Judge:WILLIAMSON, J.
Party Name:THE STATE v. JAMES W. GARRETT, Appellant
Attorney:R. M. Reynolds and Roy D. Rucker for appellant. Frank W. McAllister, Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for respondent.
Case Date:December 13, 1920
Court:Supreme Court of Missouri
 
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226 S.W. 4 (Mo. 1920)

285 Mo. 279

THE STATE

v.

JAMES W. GARRETT, Appellant

Supreme Court of Missouri, Second Division

December 13, 1920

Appeal from Saline Criminal Court. -- Hon John A. Rich, Judge.

Affirmed.

R. M. Reynolds and Roy D. Rucker for appellant.

Frank W. McAllister, Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for respondent.

(1) There was sufficient evidence of guilt to support the verdict. State v. Maurer, 255 Mo. 168; State v. Concelia, 250 Mo. 420; State v. Howard, 203 Mo. 603. (a) An unsupported allegation of passion and prejudice presents nothing for review. State v. Howell, 117 Mo. 342; State v. Gonce, 87 Mo. 630; State v. McBrien, 265 Mo. 594; State v. Mace, 263 Mo. 157. (2) The court did not err is admitting evidence tending to show that the deceased was reputed to keep a large sum of money in her house and that defendent was cognizant of this reputation. State v. Rasco, 239 Mo. 564; State v. Shelton, 223 Mo. 132; State v. Donnelley, 130 Mo. 642; State v. Jackson, 95 Mo. 623; Kennedy v. People, 39 N.Y. 253; 21 Cyc. 919. (3) Evidence tending to show defendant's financial condition about the time of the homicide was properly admitted. People v. Leung Ock, 74 P. 986; Lancaster v. State, 31 S.W. 575; Clough v. State, 7 Neb. 320; 21 Cyc. 940; also cases cited above. (4) Facts as to the conduct of defendant with regard to drinking whiskey on the way to the funeral of Sarah J. Campbell were admissible. State v. Daley, 210 Mo. 676; State v. Brown, 168 Mo. 449; 21 Cyc. 937, 939. (5) Voluntary statements made by defendant after his arrest were properly admitted in evidence. State v. Daley, 210 Mo. 676; State v. Nocton, 121 Mo. 537; Baines v. State, 66 S.W. 847; 21 Cyc. 941. (6) The court did not err in refusing defendant's demurrer to the evidence. State v. Conway, 241 Mo. 278; State v. Toohey, 203 Mo. 678; State v. Cushenberry, 157 Mo. 179. (7) Instruction D-2, requested by the defendant, was properly refused. State v. Donnelly, 130 Mo. 642; State v. Jackson, 95 Mo. 623; Marabele v. State, 89 Ga. 425; 21 Cyc. 919. (8) The irregularity of the court in excusing jurors on the regular panel and filling in the vacancies by a special summons is not saved for review by a mere allegation in a motion for a new trial. State v. Jones, 61 Mo. 232; State v. Grant, 152 Mo. 57; State v. Marshall, 36 Mo. 400. (9) It was not reversible error for the trial judge to leave the court room and the county seat while the jury was out in this case. Appellant's affidavit discloses that at six o'clock, p. m., it appearing that the jury would be unable to reach a verdict that night, the court took a recess until the following morning. State v. Burns, 148 Mo. 174.

OPINION

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[285 Mo. 283] WILLIAMSON, J.

The defendant, James W. Garrett, was convicted of murder in the first degree and his punishment was fixed at life-imprisonment in the penitentiary. He had duly appealed.

This is the second time that this case has been in this court. The former appeal was from a like conviction and sentence. The opinion is reported in 276 Mo. 302, 207 S.W. 784. The former judgment was reversed because of an error in an instruction.

The facts in the present record are essentially the same as on the former trial, and for that reason we adopt the lucid statement of facts prepared by White, C., and set forth in State v. Garrett, supra, as applicable here, with the exceptions hereinafter noted.

[285 Mo. 284] There was evidence in behalf of the defendant upon the last trial that he frequently carried a large roll of money -- amount not stated -- and that he was seen with such a roll a short time before, as well as immediately after, Mrs. Campbell, the deceased, had been murdered. As upon the former hearing, so in the trial now in review, defendant did not testify in his own behalf, and, as before, certain relatives with whom defendant claimed he had been visiting at Moberly, Missouri, at such a time as made it impossible that he could have been at New Frankfort, the scene of the tragedy, when the murder was committed, also failed to testify. The defense was an alibi, and upon the last trial defendant produced one or two witnesses, in addition to the two who testified on the first trial, in support of that defense.

The court gave eight...

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