228 S.W. 786 (Mo. 1921), The State v. Dougherty

Citation228 S.W. 786, 287 Mo. 82
Opinion JudgeWALKER, J.
Party NameTHE STATE v. JOHN I. DOUGHERTY, Appellant
AttorneyThomas B. Harvey for appellant. Frank W. McAllister, Attorney-General, and H. P. Ragland, Assistant Attorney-General, for respondent.
Case DateMarch 19, 1921
CourtSupreme Court of Missouri

Page 786

228 S.W. 786 (Mo. 1921)

287 Mo. 82

THE STATE

v.

JOHN I. DOUGHERTY, Appellant

Supreme Court of Missouri, Second Division

March 19, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene, Judge.

Aefirmed.

Thomas B. Harvey for appellant.

(1) The court erred in admitting as a part of the dying declaration the statements by the deceased denunciatory of the shooting of him, to the effect that "it was a shame to shoot a man that way," etc. Only statements of what occurred were competent. State v. Brown, 188 Mo. 451; State v. Kelleher, 201 Mo. 614; 16 C. J. p. 843, sec. 2314 (3). (2) The instruction given upon the theory of the killing being done in the execution of a conspiracy was faulty in not putting to the jury the converse, based upon the defendant's testimony that he never joined any conspiracy. State v. Frederichs, 136 Mo. 58; State v. Jackson, 126 Mo. 521; State v. Rutherford, 152 Mo. 125; State v. Levitt, 213 S.W. 108. (3) The court erred in its instruction on conspiracy in declaring that the defendant's repentance and withdrawal from the contemplated crime must have been with the knowledge of his confederates to avail him anything. Wharton on Homicide, 665; Richard v. State, 30 Ga. 757; State v. Allen, 47 Conn. 139. (4) Instruction 5, discrediting things favorable to himself, and lending legal approval to things against himself, in a statement introduced in evidence by the State, is erroneous as a comment on the evidence and pointing solely to the defendant as a witness. State v. Barrington, 198 Mo. 125; Stetzler v. Street Ry. Co., 210 Mo. 704; Lander v. Transit Co., 206 Mo. 461; Clay v. State, 15 Wyo. 64; Welsh v. State, 164 S.W. 119. (5) The instruction 4a, given by the court, was palpably erroneous and prejudicial in pointing out certain facts and commenting on the same. State v. Raferty, 252 Mo. 72; State v. Wertz, 191 Mo. 569; State v. Pate, 188 S.W. 139; State v. Rutherford, 152 Mo. 130; State v. Sinclair, 250 Mo. 278; State v. Malloch, 269 Mo. 235; State v. Rogers, 253 Mo. 399; State v. Sivils, 105 Mo. 533.

Frank W. McAllister, Attorney-General, and H. P. Ragland, Assistant Attorney-General, for respondent.

(1) The statements made by deceased to Dr. Schlostein, were admissible. (a) They were admissible as dying declarations. State v. Brown, 188 Mo. 460; State v. Elkins, 101 Mo. 344; State v. Kelleher, 201 Mo. 637; State v. Evans, 124 Mo. 397; State v. Dipley, 242 Mo. 477; State v. Colvin, 226 Mo. 481; State v. Vest, 254 Mo. 458. (b) Evidence which is admissible for any purpose cannot be excluded by the court on the ground that it is inadmissible for other purposes. State v. Bersch, 276 Mo. 416; State v. Finley, 193 Mo. 211; Sotebier v. Transit Co., 203 Mo. 721. (c) The statements were admissible as part of the res gestae. State v. Martin, 124 Mo. 524, 529; State v. Lockett, 168 Mo. 480; State v. Sexton, 147 Mo. 89; State v. Sloan, 47 Mo. 604; Greenlee v. K. C. Casualty Co., 192 Mo.App. 308. (d) If error, it was invited and defendant cannot complain. Section 5115, R. S. 1909; State v. Hamey, 168 Mo. 197. (2) Appellant's instruction in the nature of a demurrer was properly overruled. There was sufficient evidence to sustain the verdict. State v. Oertel, 217 S.W. 64; State v. Selleck, 199 S.W. 130; State v. Conley, 217 S.W. 29; State v. Mann, 217 S.W. 67. (3) Appellant's fifth and sixth assignments that the court erred in giving and refusing instructions to the jury are too general and indefinite for review by this court. State v. Lewis, 273 Mo. 532; State v. Selleck, 199 S.W. 129. (4) Appellant's seventh assignment that the court erred in instructing on conspiracy for the reason that there is no legal and competent evidence on which to base the instruction on conspiracy should be overruled. 12 C. J., sec. 227, p. 634; State v. Hill, 273 Mo. 341; State v. Fields, 234 Mo. 623; State v. Sykes, 191 Mo. 78; State v. Murray, 193 S.W. 832; State v. Bobbitt, 215 Mo. 39; State v. Roberts, 201 Mo. 728; State v. Forsha, 190 Mo. 296; 13 R. C. L. sec. 33, p. 723. (5) Alleged error must be properly referred to in the motion for new trial if it is to be saved for review by this court. Russo v. Brooks, 214 S.W. 431; State v. Brashear, 186 S.W. 1060; Lust v. Pub. Service Com., 210 S.W. 72; St. Louis v. Railroad, 248 Mo. 11.

OPINION

[287 Mo. 85] WALKER, J.

Defendant was indicted by the grand jury of the City of St. Louis, together with three others, for murder in the first degree in having shot and killed Henry Becker. A severance was granted and defendant was tried, convicted and sentenced to life imprisonment in the...

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