State v. Barr

• Decision Date: 11 March 1937
• Docket Number: 34843
• Citation: 102 S.W.2d 629,340 Mo. 738
• Parties: The State v. Dudley Barr, Appellant
• Court: Missouri Supreme Court

102 S.W.2d 629

340 Mo. 738

The State v. Dudley Barr, Appellant

No. 34843

Supreme Court of Missouri

March 11, 1937

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

C H. Calloway and Roy N. De Vault for appellant.

Roy McKittrick, Attorney General, and J. E. Taylor Assistant Attorney General, for respondent.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Appellant was convicted of murder in the first degree for the killing of Walter Milton. The jury assessed his punishment at death. He was sentenced accordingly and has appealed. This is the second appeal in this case. Upon the first trial appellant received a like sentence. We reversed that judgment and remanded the case for certain errors in the instructions. [See State v. Barr, 336 Mo. 300, 78 S.W.2d 104.]

Appellant has filed no brief in this court. From the State's brief we adopt the following short and succinct statement of the facts, which may be considered supplemented by the statement of facts given in State v. Barr, supra:

"The evidence on the part of the State tended to show that on December 14, 1932, between the hours of five-thirty and six o'clock P. M., the defendant together with two other negroes were driven to 12th and Lydia Streets in Kansas City, Missouri, by Edward Ross, a taxicab driver. A man in a Graham Paige car drove up behind them and got out of his car and into the taxicab, with a gun in his hand, and commanded the driver of the taxi to sit still. Dudley Barr and the other two men got out of the taxi and went around on Lydia Street to a place known as the 'Flying Cloud Policy Wheel' which was operated by George Mehan, who was also known as George Kondos. The appellant, Barr, put his gun on the doorman and commanded one of his companions to stay on the door while he and his other companion marched the doorman upstairs to where the policy wheel was operated, and announced 'This is a holdup.' During the progress of the holdup appellant took money and a watch from Kondos and others. He also made threats to kill and shot his pistol into the floor at the feet of one of the patrons of the game and stated 'This goes to show that this is no toy.' He then reloaded his pistol and hit Kondos in the side of the face and made him open his mouth and stuck the muzzle of the gun in his throat and threatened to kill him. An employee of Kondos begged the defendant not to kill Kondos and gave him some more money that was under the counter. Defendant then started to leave looking the crowd over when he saw a man by the name of Walter Milton to whom he stated, 'You are the fellow that knows me and you can identify me, before I leave here I am going too kill you.' Milton who had his hands up replied, 'No, Mister, I don't know you, I don't know you.' Appellant then shot Milton, who fell to the floor. He stood over him and shot him twice more. Milton died immediately. Appellant then left.

"A number of witnesses positively identified appellant and also identified the gun and coat which were found in appellant's room at the time of his arrest as the coat he wore on the night of the holdup, and the gun as the one he shot Walter Milton with.

"The defense was an alibi that tended to show that the defendant had been drinking on the afternoon in question and had become inebriated to the point of helplessness and could not, therefore, have committed the robbery and murder."

Further facts as may be deemed necessary will be stated in the course of the opinion.

Since appellant has not briefed the case here we must look at his motion for new trial for the grounds on which he seeks reversal. His first contention is that the court erred in overruling his motion to quash the information. The complaint regarding the information is; first, that in stating the venue it alleges that the offense was committed "at the County of Jackson, State of Missouri," instead of, as the evidence showed and appellant says the information should have charged, "in" or "within" said county; and, second, that the information "does not charge what kind of a weapon was used in the alleged murder."

As to the first criticism the preposition "at" instead of "in" or "within" has often been used in stating the venue and we have never before known such use to be criticized. It was so used in State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079, wherein the indictment was held sufficient (though not assailed on that ground) and wherein we pointed out that under the statute, Section 3563, Revised Statutes 1929 (Mo. Stat. Ann., p. 3160), no indictment or information shall be deemed invalid or judgment or other proceedings thereon stayed or affected for want of a proper or perfect venue. We have also held, applying Section 3555, Revised Statutes 1929 (Mo. Stat. Ann., p. 3153), that where no venue is stated in the body of an information or indictment the county or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of the same. [State v. Connor, 318 Mo. 592, 300 S.W. 685.] Such is the clear mandate of the statute. In the instant case the venue is stated in the caption of the information as was true in State v. Connor, supra. For both reasons indicated this criticism of the information is without merit.

The second ground upon which the information is assailed is equally untenable. The information charges that the homicide was committed with a pistol loaded with gun powder and leaden balls -- a sufficiently definite charge. Appellant's real complaint on this point appears to be that there was a variance between pleading and proof because the witnesses, or at least some of them, spoke of the lethal weapon as a revolver. We think that there was no real variance. Webster's New International Dictionary defines "pistol" as "a short firearm intended to be aimed and fired from one hand. Pistols were first used about 1540. They are now usually either revolvers (which see), or automatic or semi-automatic magazine pistols." It follows that a revolver is a pistol. It is often called a revolving pistol. But even if it could be said that there was a variance, such variance is immaterial. See Section 3562, Revised Statutes 1929 (Mo. Stat. Ann., p. 3158); Section 3563, Revised Statutes, 1929, supra; State v. Webb, 254 Mo. 414, 434, 162 S.W. 622, wherein the information charged the use of a revolving pistol and the proof showed the use of an automatic pistol; State v. Wilson (Mo.), 34 S.W.2d 98, 101, in which the information charged that the weapon used was loaded with a leaden ball and there was no proof that said ball or bullet was of lead. We said it could make no difference whether the bullet was of lead or some other metal.

Defendant complains of instructions Nos. 1 and 2 by the court. Instruction No. 1 defines various terms used in the information, such as "deliberately," "premeditatedly," etc. Instruction No. 2, reads:

"The court instructs the jury that if you find and believe from the evidence beyond a reasonable doubt, that at the County of Jackson, State of Missouri, on the 14th day of December, 1932, the defendant, Dudley Barr, either acting alone or knowingly acting in concert with another or others while in an attempt to perpetrate and commit robbery, if you so find, unlawfully, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did with a certain pistol shoot one Walter Milton, inflicting upon him a mortal wound from which said mortal wound he the said William Milton within one year and one day thereafter, at the County of Jackson, State of Missouri, died; then you will find the defendant, Dudley Barr, guilty of murder in the first degree and assess his punishment at death or imprisonment in the state penitentiary for and during his natural life; and unless you find the facts to be as above stated in this instruction, you will acquit the defendant."

The criticism of Instruction No. 1 is, not that the definitions therein contained were in themselves inaccurate but that there should have been no definition of "deliberation" given other than the fact, if found, that the killing was done in the perpetration or attempt to perpetrate robbery, since all the evidence tended to show that it was so committed, and that the inclusion of a definition of "deliberately" such as would be proper in a case of murder not committed in the perpetration or attempt to perpetrate robbery (or other offense mentioned in Sec. 3982, R. S. 1929, Mo. Stat. Ann., p. 2778), tended to confuse and mislead the jury. Of Instruction No. 2 it is claimed that it is erroneous in that it named two deceaseds, Walter Milton and William Milton; that it "does not confine the finding of the jury to Jackson County;" because according to the evidence, a revolver and not a pistol was used; because it assumes that defendant killed the deceased; and because it directs the jury to find two things, viz., that the killing was done in the perpetration of or attempt to perpetrate robbery and also that it was done "unlawfully, feloniously, willfully, deliberately, premeditatedly and of his malice afore-thought." These assignments may be considered together.

There was evidence from which the jury could have found that the killing was done with actual deliberation and the definition of deliberation was therefore not out of place. But also under the statute, Section 3982, supra, proof that the homicide was committed in the perpetration of robbery supplies the place and is the legal equivalent of deliberate and premeditated malice (State v. Robinett (Mo.), 279 S.W. 696, 700), or, as stated in State v. Moore, 326 Mo. 1199, 1204, 33 S.W.2d 905, 906, "deletes the necessity of proof tending to show deliberation, for the statute...