228 S.W. 810 (Mo. 1921), The State v. Poor

Citation:228 S.W. 810, 286 Mo. 644
Opinion Judge:WALKER, J.
Party Name:THE STATE v. EDWARD POOR, Appellant
Attorney:Jos. F. Chilton and C. P. Damron for appellant. Frank W. McAllister, Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for respondent.
Case Date:March 07, 1921
Court:Supreme Court of Missouri
 
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Page 810

228 S.W. 810 (Mo. 1921)

286 Mo. 644

THE STATE

v.

EDWARD POOR, Appellant

Supreme Court of Missouri, Second Division

March 7, 1921

Appeal from Madison Circuit Court. -- Hon. Peter H. Huck, Judge.

Affirmed.

Jos. F. Chilton and C. P. Damron for appellant.

(1) A juror who on his voir dire says he has an opinion as to the guilt of the defendant based on reading a newspaper article containing a statement of all the evidence given on the preliminary trial of the defendant, is disqualified to sit as a juror in the case as a matter of law and as a matter of fact. Sec. 5220, R. S. 1909; State v. Taylor, 134 Mo. 109; State v. Culler, 82 Mo. 623. (2) An instruction must be applicable to the pleadings and the testimony developed on the trial, and must be intelligible so as not to confuse the issues in the minds of the jurors. Harrison v. Lakeman, 189 Mo. 608; State v. Riley, 100 Mo. 498; State v. Allen, 94 Mo.App. 508; State v. Williams, 184 Mo. 261; Moore v. Steigel, 50 Mo.App. 308; State v. Pettit, 119 Mo. 415. (3) Proof that a homicide has been committed and that the defendant on trial had made previous threats against the deceased, is not sufficient to warrant a verdict for murder; hence, instruction No. 9 offered by defendant should have been given. State v. Glahn, 97 Mo. 679. (4) Before a witness can be impeached, it must be shown that his testimony in court is different from some statement made by him out of court, and a defendant cannot be bound by statements and acts of third parties out of his presence. State v. Brown, 247 Mo. 584; State v. Newcomb, 220 Mo. 63. (5) When a defendant is on trial for his life, counsel for the State should carefully refrain from any attempt to coerce the jury to convict, as by making an appeal to their passion and prejudice, or by reference to public sentiment regarding the case. The jury should convict on evidence that crime has been committed and not in order to satisfy the hopes of the relatives of the deceased, or to satisfy the demands of the people of the county in which the alleged offense was committed, although said people may "believe in the enforcement of law and order." State v. Hess, 240 Mo. 147; State v. Brown, 247 Mo. 715; State v. Wigger, 196 Mo. 90; State v. Wellman, 253 Mo. 302; State v. Miller, 263 Mo. 326; State v. Jones, 249 Mo. 80. And where the defendant's guilt is not clearly established, much less objectionable argument will be held reversible. State v. Evans, 267 Mo. 163; State v. Hilton, 255 Mo. 170. (6) A verdict which is not based on clear and convincing evidence of the guilt of defendant, but upon suspicion and conjecture, evidencing passion and prejudice on the part of the jury, cannot stand. State v. Hall, 141 Mo.App. 707; State v. Clain, 154 Mo.App. 686; State v. Baker, 144 Mo. 330; State v. Bass, 251 Mo. 107. (7) To establish the corpus delicti, there must be substantial proof that deceased died from a wound unlawfully inflicted by defendant. Both the criminal act and agency of defendant must be shown. State v. Bass, 251 Mo. 107; State v. Gordon, 199 Mo. 561; State v. Nesenhener, 164 Mo. 461; State v. Crabtree, 170 Mo. 643; State v. Francis, 199 Mo. 671. (8) Accused is entitled to know the nature and cause of the accusation against him, and unless the information gives him this knowledge, it does not answer the end required by the constitution and law. Art. 2, sec. 22, Mo. Const.; State v. Nunley, 185 Mo. 102; State v. Gassard, 103 Mo.App. 143; State v. Birks, 199 Mo. 263. The information must charge a felonious striking or wounding. The homicide must be alleged to have been done feloniously. State v. Williams, 184 Mo. 261; State v. Green, 111 Mo. 585; State v. Feaster, 25 Mo. 326; State v. Herrell, 97 Mo. 105; State v. Woodward, 191 Mo. 617. The information must contain the allegation that the deceased came to his death as a result of the felonious act. Nothing can be supplied by intendment. State v. Hagan, 164 Mo. 654; State v. Brown, 168 Mo. 449. The information was not verified as required by law. Secs. 5057, 5059, R. S. 1909.

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

(1) The information is sufficient. Kelley's Crim. Prac. sec. 484, p. 430; State v. Woodward, 191 Mo. 629; State v. Williams, 184 Mo. 261; Commonwealth v. Webster, 5 Cush. (Mass.) 295; State v. Williams, 52 N.C. 446. (2) The evidence is sufficient to support the verdict. State v. Concelia, 250 Mo. 424; State v. Underwood, 263 Mo. 685. (3) The corpus delicti may be established by circumstantial evidence. State v. Concelia, 250 Mo. 421; State v. Barrington, 198 Mo. 112; State v. Vinton, 220 Mo. 100. The corpus delicti was established by the testimony in the case. State v. Henderson, 186 Mo. 483. (4) Instruction No. 3 is on murder in the first degree. Appellant was convicted of murder in the second degree and cannot complain. Instruction No. 9 when analyzed amounts to a comment on the evidence. It was properly refused. State v. Lewis, 264 Mo. 432; State v. Shelton, 223 Mo. 139; State v. Mitchell, 229 Mo. 697; State v. Sebastian, 215 Mo. 87. (5) Remarks of counsel complained of are not saved for review. State v. DeWitt, 191 Mo. 58; State v. Humfeld, 182 Mo.App. 643. (6) Appellant's assignment that the court erred in overruling defendant's challenge for cause to the juror, D. E. Pridy should be overruled. Pridy did not serve on the trial jury of twelve. State v. Brooks, 92 Mo. 575; State v. Rasco, 239 Mo. 557; State v. Robinson, 117 Mo. 659; State v. Reed, 137 Mo. 131.

OPINION

[286 Mo. 648]

Page 811

WALKER, J.

Edward Poor was charged with murder in the first degree by information, in the Circuit Court of Madison County, in February, 1920, in having killed one Cleveland King in October, 1919. Upon a trial he was convicted of murder in the second degree, and his punishment assessed at ten years' imprisonment in the penitentiary. From this judgment he appeals.

Cleveland King, frequently designated in the record as "Cleve," had, with his wife Nora, formerly lived in the immediate neighborhood of the defendant. Gossip as to an improper intimacy between the latter and Mrs. King had occupied the ever-busy tongue of scandal for some time before the separation of King and his wife, which occurred in August, 1919. Upon this separation, [286 Mo. 649] provoked, as admitted by counsel for appellant, by the scandal, she went to reside with her mother and stepfather, who lived in the same neighborhood. On Saturday, October 25, 1919, she was in Fredericktown with her parents. As they went home that evening they met the defendant, who said he had heard that Cleve King had been telling some tales on him that he had to straighten up. The next day Cleve came to where his wife was staying. After a general conversation he and his wife went to the Trace Creek Church building in the vicinity (there being no services there at the time), to discuss their differences. A half an hour or more after their arrival there they agreed to a reconciliation and a renewal of their marital relations, when the defendant appeared, carrying a gun. He demanded that Cleve accompany him to Charley Hawkins's, who lived about two miles away, to straighten up certain tales he said Cleve had been telling on him. The wife testified that her husband denied the charges and went reluctantly; that the last time she saw him he was going down the road with the defendant toward the home of Andy Hale in the direction of Charley Hawkins's. Soon after they left, two men, corresponding in size and general appearance with the defendant and Cleve King, were seen by Andy Hale about one hundred yards or more distant, going down the public road which ran in the direction of Charley Hawkins's place. Hale did not at the time observe them with particularity sufficient to identify them as King and the defendant, but did notice that one was a small man and the other a large one, and that the latter carried a gun. It was shown that King was a small man, while the defendant was a large one. It was a little later than three o'clock when defendant and King left the church. The latter has never been seen since that time. Andy Hale heard four gunshots that afternoon -- three of them a short time after the men had passed his place, and the fourth about a half hour later. The location of the person firing the fourth shot seemed from the report to be a mile or more distant in [286 Mo. 650] the direction of Charley Poor's house, who was a brother of the defendant, and in which direction the two men were going when they passed Andy Hale's. The other shots were in the same general direction, but a little further north and west. Nora King, upon her return to her step-father's house a half an hour or less from the time the defendant and her husband left the church together, told the members of her family of the defendant's coming to the church and demanding that Cleve accompany him and of the latter's reluctant compliance. The unaccounted absence of King under the circumstances occasioned neighborhood comment, and on Monday evening the defendant and a fourteen-year-old son of his came to the house of Green Stacy. The latter's wife, who was the grandmother of Nora King, told defendant what Nora had said, and asked him if he knew where Cleve was. Defendant said he did not; that he had not seen him since the Saturday preceding at Mill Creek;

Page 812

that he (defendant) was not at the church on Sunday and if Nora...

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