State v. Adams

• Decision Date: 17 November 1936
• Docket Number: No. 34674.,34674.
• Citation: 98 S.W.2d 632
• Parties: THE STATE v. FRED ADAMS, Appellant.
• Court: Missouri Supreme Court

98 S.W.2d 632

THE STATE v. FRED ADAMS, Appellant.

No. 34674.

Supreme Court of Missouri.

Division Two, November 17, 1936.

Appeal from Dunklin Circuit Court. — Hon. James V. Billings, Judge.

AFFIRMED.

Doyne Dodd for appellant.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court instructed on all the law applicable to the case and therefore did not err. Sec. 3982, R.S. 1929; State v. Augulera, 33 S.W. (2d) 901; State v. Copeland, 71 S.W. (2d) 746; State v. Jefferson, 67 S.W. (2d) 929; State v. Hershon, 45 S.W. (2d) 61; State v. Messino, 30 S.W. (2d) 750; State v. Nasello, 30 S.W. (2d) 132. (2) The court did not err in giving Instruction 8 on the part of the State. State v. Messino, 30 S.W. (2d) 750; State v. Nasello, 30 S.W. (2d) 132. (3) The court did not err in giving Instruction 3-D at the request of the appellant. State v. Decker, 33 S.W. (2d) 958; State v. Hudson, 285 S.W. 733; State v. Parker, 12 S.W. (2d) 428. (4) The court did not err in giving Instruction 9 on behalf of the State. State v. Young, 286 S.W. 29. (5) The court did not err in permitting the introduction of appellant's signed confession. State v. Eason, 18 S.W. (2d) 71; State v. Hoskins, 36 S.W. (2d) 909; State v. Wilson, 223 Mo. 173.

ELLISON, J.

The appellant was convicted of murder in the first degree, the jury inflicting the death penalty, for the fatal shooting of Clarence Green, night marshal of the town of Campbell in Dunklin County, in March, 1934. It was not controverted at the trial that just preceding the homicide the appellant and two accomplices were engaged in burglarizing a filling station at Campbell. But he contended the burglarious enterprise had been abandoned, that he was in flight, and that Green was shot by another of the burglars for which he is not responsible. That was the basis of the first five assignments in his motion for new trial below. He has filed no brief in this court. Other assignments in the motion complain of error in the giving of instructions and in the reception of evidence.

Summarizing the evidence as briefly as possible, it was conceded by appellant's counsel in open court at the trial, and the undisputed evidence showed it, that he and two accomplices had broken into a White Eagle gasoline filling station at Campbell about eleven o'clock at night and had carried out and deposited on the ground certain articles of property which they were stealing, and had gone back presumably for more loot when the deceased Clarence Green, together with Rodney Brown, city marshal, and two other men, drove up to the filling station. The three burglars fled across lots into a wooded section behind the station. Green and Brown followed in pursuit, being guided mainly by sound since it was too dark to see the fugitives in the woods, though the moon was shining. How far from the filling station the chase continued the record does not clearly show — perhaps several hundred feet — but at any rate, Brown testified that Green was about twenty feet ahead of him and some fifty feet from what the witnesses called "the fourth fence" when suddenly one gunshot was fired by someone straight ahead of Green who sagged down and then started to straighten up. Several more shots came from an oblique direction. From their rapid succession it appeared they had been fired from an automatic shotgun. Green reeled in a semicircle for about fifteen feet, fell, and died without uttering a word. It was twenty-five feet from the point where the shot was fired to where the body lay. The flashlight and revolver of the deceased were found about where he was thought to be when the first shot was fired. The burglars eluded pursuit, and the appellant several miles further on threw the rifle and revolver he was carrying into the St. Francois River.

Dr. Rigdon, the coroner, found numerous wounds upon the corpse caused by shot from a shotgun. There were some fifty of these across the chest from the lower ribs up to the shoulders, and half as many more over the face. The chest wounds penetrated the plural cavity and also, he thought, the heart and large blood vessels leading therefrom. They were mortal wounds from which death would result almost instantaneously, and went practically straight in as if the shot had been fired from in front. He believed the wounds in the face might have come from a different charge. The undertaker, Mr. Landess, testified he found on the left leg of the body below the knee some thirty or more shot wounds which entered in a slanting direction.

The appellant was arrested in Paragould, Arkansas, a few days later. Sheriff Donaldson of Dunklin County, driven by Mr. R. Earl Jones, a banker of Kennett, brought him back to Missouri. On that trip the appellant made a statement. Shortly afterwards he volunteered to, and did, accompany the officers to the scene of the homicide and showed how it occurred. In addition to that he made a written statement. In these statements he told of the burglary of the filling station, of the approach of the officers, of his giving the alarm, and of the flight of the burglars. He admitted he carried a single-barrel shotgun and that when he was near the fourth fence he turned back and shot once but said he elevated his gun and fired high, his purpose being merely to frighten whoever it was coming.

His statement to the officers further was that he extracted the discharged shell from his gun and put in another while he was on the run. On the ground one of the officers reenacted his movements in front of him, taking four or five paces in the direction he said he went from the place where he fired the shot, and the appellant agreed it was that way. This led to the point where a single, fired shotgun shell was found. Over to the right some forty-five feet four similar shells were found close together. All five were of the same size and kind. The appellant said they came out of the same box and that all were loaded with No. 4 shot. Two or three trees at the place of the shooting had shot embedded in them. One of these was on a line from the point where the appellant told the officers he was standing when he fired, to the point where the deceased was at that time. The tree was not between the two men but was behind the deceased, and the shot were about three or four feet up the tree trunk. Another small sapling close to where Green fell had shot in it but they extended only several inches above the ground.

Mr. Laffler, a civil engineer, made a plat of the locus criminis from accurate measurements. It showed that between the point where the single discharged shell from appellant's gun was found and the point where the deceased was at the time of the first shot a tree stood in the line of fire. Appellant on the witness stand denied he had told the officers he was standing by the fourth fence when he fired his gun and that he was running when he extracted the shell from it and reloaded it. He said he followed his habit of drawing the shell out of the gun standing on the spot where he fired, and that it fell at his feet. This meant he stood where the shell was found when he shot, and in connection with the testimony of civil engineer Laffler, put a tree between the appellant and the deceased at that time. But the testimony from the State's witnesses was that no shot were found in that tree anywhere.

This was the only important contradiction of the State's evidence by the appellant. He did also say his written confession was not taken down just as he had dictated it, and that he merely glanced through it when he signed it. But he had put his signature on each page, and Sheriff Donaldson and Deputy Sheriff Rigdon who wrote it testified it was a faithful report of what he said, and that he read it and had it read to him before he signed it. The appellant did not claim the confession was procured by promises or threats. And there was nothing in it important to the State's case, or detrimental to the appellant's defense, that was not also covered by his oral admissions.

I. The appellant's principal assignments in his motion for new trial have a double aspect. He maintains first, there was no substantial evidence that he fired the shot which killed Green; and second, that under the facts he cannot be held to answer as a co-conspirator for the homicidal act of his accomplices, either under that part of Section 3982, Revised Statutes 1929 (Mo. Stat. Ann., p. 2778), making every homicide committed in the perpetration or attempted perpetration of a burglary murder in the first degree, or on any other conspiracy theory.

We think appellant's basic contention is without foundation. There is substantial evidence that he was the one who killed Green. The testimony of the eyewitness, Brown, together with his own admissions to the officers, show that appellant was straight ahead of the deceased and not far distant when he shot. The deceased was facing him and the mortal wound he received was in the chest, the shot penetrating so deep as to enter the plural cavity and circulatory system. He uttered no word after that first shot. The tree straight behind him had shot embedded in it about the height of his chest. The four shots from the gun or guns of one or both of the other accomplices came obliquely from the side and further away. The coroner said he thought the shot in the face might have come from a different charge and the inference from his testimony is that the face wounds were not fatal. The undertaker found glancing shot wounds low down on one leg. These obviously could not have been immediately fatal. This evidence was sufficient to justify the jury in finding the appellant was the person who shot and killed Night Marshal Green.

II. It is our further opinion that the jury could have convicted the appellant even though he did not fire the fatal shot, and independently of whether he technically was engaging in the perpetration or attempted...