The State v. Dougherty

Decision Date19 March 1921
PartiesTHE STATE v. JOHN I. DOUGHERTY, Appellant
CourtMissouri Supreme Court

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

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 penitentiary. From this judgment he appeals.

Henry Becker was returning to his home on the corner of Compton and Russell avenues in the City of St. Louis at a little before nine o'clock on the night of April 14, 1919. He had alighted from his automobile opposite his residence, the chauffeur had left, and Becker was about to step upon the walk leading from the street to the house when he was shot and robbed of about $ 1300 he had on his person. His wife, who was ill and confined to her bed, heard a shuffling, as of feet, on the walk, the report of a gun and an exclamation, "They have shot me." She recognized her husband's voice and asked her mother to go out and bring him in. The mother and the immediate neighbors, who had also heard the shot, found Becker with his feet lying in the gutter and his head in the street in front of his home. Upon their approach he exclaimed, "I'm shot; I'm shot." He was carried into his home and a doctor near at hand was summoned. He found Becker in a precarious condition. He was panting for breath, his pulse was weak, irregular and rapid, indicative of an internal hemorrhage. An examination disclosed a gunshot wound in his abdomen. To those present he said, "This is a shame, to shoot a man like this. I asked them not to shoot me and gave them everything I had and still they shot me." To his mother-in-law, who was standing near, he said, "Grandma, it's all over with me; I'm a goner." This he repeated several times, adding, "It's a shame to shoot a man like this." Soon after he made these statements he was taken to a hospital, operated on, and died six hours after being shot.

The defendant made a statement to the police after his arrest. The voluntary making of this statement and the correctness of its subject-matter as made by the defendant are attested by several persons. The defendant on the witness stand denied much of it. The material portions of same are that he and the other defendants agreed on the day of the commission of the crime to "hold up" Becker; and that they went to the neighborhood of his residence to await his return to accomplish their purpose; that he and the others were standing on the opposite side of the street from Becker's residence when they saw his automobile approach; that two of the party crossed over the street to a point where the automobile would stop to enable Becker to alight, while he and one of the others remained on the opposite side of the street; that when two of his companions crossed the street defendant ran and when about a block distant he heard a shot fired; that he mounted a street car going east at Compton and Park avenues and got off at Eighteenth and Compton, where he found two of the other defendants; that upon his arrival they "split up" the money and he got $ 240 for his share; that Kahmann, one of the defendants, said, "they got $ 1300 from Becker and that he [Kahmann] shot him because he hollered;" that they then went to a saloon in the neighborhood and had several drinks, bummed around a while and then went to defendant's mother's home, where they had a drinking and dancing party which continued until six o'clock the next morning; that as defendant ran away from the scene of the crime he threw his gun on a lawn about a block west of Becker's house; that he left some of the money he had gotten with his mother and $ 150 of it at Stevens's saloon; that he and the other defendants talked about holding up Becker about a week before the occurrence, but that he had said he did not want anything to do with it. The jury believed this statement and not defendant's subsequent denial of same. The truth of his statements in regard to the money left with his mother and the saloon-keeper was attested by them and the money was turned over to the police. The pistol was found where he said he had thrown it. The record discloses other incriminatory facts and circumstances which need not be repeated, enough having been shown to demonstrate defendant's presence and participation in the crime. No question is raised as to the quantum or probative force of the testimony. The defense is purely technical.

I. Error is assigned in the admission in evidence of a statement of the deceased immediately preceding his dying declaration that he had said to his assailants "it was a shame to shoot a man in that way." In determining whether an objection to a statement of this character is tenable and hence worthy of consideration, the circumstances under which it was offered in evidence and the manner in which it was made are to be taken into consideration. As to the former, we find, without encumbering this opinion with a rescript of the testimony, that the statement was brought out at the suggestion of counsel for the defendant. The error, therefore, if any, was committed at the instance of defendant and he should not be heard to complain. [Sec. 5115, R. S. 1909, now Sec. 3908, R. S. 1919; State v. Palmer, 161 Mo. 152, 61 S.W. 651; State v. Hamey, 168 Mo. 167, 67 S.W. 620; State v. Grubb, 201 Mo. 585, 99 S.W. 1083; State v. Colvin, 226 Mo. 446, 126 S.W. 448; State v. Hutchison, 186 S.W. 1000.]

However the circumstances under which the statement was originally...

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