State v. Bobbitt

• Decision Date: 15 December 1908
• Citation: 114 S.W. 511,215 Mo. 10
• Parties: THE STATE v. J. E. BOBBITT, Appellant
• Court: Missouri Supreme Court

114 S.W. 511

215 Mo. 10

THE STATE v. J. E. BOBBITT, Appellant

Supreme Court of Missouri, Second Division

December 15, 1908

Appeal from Howard Circuit Court. -- Hon. Samuel Davis, Special Judge.

Affirmed.

O. S Barton and Sam C. Major for appellant.

(1) Defendant was entitled to a speedy public trial by an impartial jury. He was entitled to a full panel of qualified jurors before he should have been required to make his peremptory challenges. Men who have formed an opinion from talking with witnesses or from reading the sworn evidence taken before the coroner or preliminary examination are just as ready to declare their ability to discard them and render a verdict solely on the evidence as those who have only read newspaper reports, but experience has taught the danger of confiding to them the issues of life or liberty. The juror Wayland formed his opinion from reading the evidence given before the coroner's jury. And the juror Yancey stated he had formed an opinion from what he had read in the newspapers, the coroner's inquest, confession, and rumor. State v. Foley, 144 Mo. 600; State v Walton, 74 Mo. 284; State v. Culler, 82 Mo 623; State v. Hultz, 106 Mo. 41; State v. Robinson, 117 Mo. 649. (2) The trial court should have sustained the objection made by defendant to the admission of any evidence of a conspiracy in this case, for the reason that no conspiracy was alleged in the indictment. Where the indictment does not charge a conspiracy, evidence of a conspiracy is not admissible, for unless a conspiracy is charged then the defendant is not prepared to meet evidence of a conspiracy. State v. Kennedy, 177 Mo. 98; R. S. 1899, sec. 2632; State v. Carroll, 31 La. Ann. 860. And especially should the objection be sustained as to any evidence as to anything said or done by Joe Stewart for he was not jointly indicted with this defendant. R. S. 1899, sec. 2632; State v. Kennedy, 177 Mo. 96. (3) The court should have given the first instruction asked by defendant at the close of the evidence of the State, in the nature of a demurrer to the evidence. There was not sufficient evidence to connect defendant with the crime. The State having elected to prosecute for murder in the second degree and then proceeding on the theory of murder committed in the perpetration or the attempt to perpetrate arson, which is murder in the first degree, defendant could not have been found guilty of murder in the second degree under the law and the evidence. Secs. 1815, 1816, R. S. 1899; People v. Sanchez, 24 Cal. 17. (4) To hold one criminally responsible for a homicide committed by another there must have been a conspiracy or concert between them, and the deed must have been done within the common design or purpose. State v. Kennedy, 177 Mo. 98; Wharton on Homicide (3 Ed.), secs. 423, 427; Kerr on Hom., sec. 38; Chapman v. State, 43 Tex. Crim. 328; Kirby v. State, 23 Tex.App. 13; Burrell v. State, 18 Tex. 713; State v. Cannon, 49 S.C. 550. There was no evidence of a conspiracy to kill Franklin Smith. (5) The court erred in giving instruction B. This instruction does not declare the law. It does not define murder in the second degree nor does it define any offense except murder in the first degree. As to this charge the State had dismissed and elected to prosecute for murder in the second degree. State v. Edwards, 203 Mo. 543. (6) The trial court failed to explain to the jury the meaning of the word "corroborate." The words "corroborate" and "corroboration" should not be used in an instruction without explaining their meaning. State v. Hunter, 181 Mo. 316. An instruction in regard to the corroboration of the testimony of an accomplice by that of other credible witnesses which fails to explain to the jury the meaning of the word "corroborated" is erroneous. State v. Claigle, 92 Mo. 395; State v. McLain, 159 Mo. 340; State v. Sprague, 149 Mo. 409; State v. Milles, 100 Mo. 606. (7) The evidence introduced showed conclusively that the witnesses Kivett and Peacher were present and participated in, if they were not the sole perpetrators of, the offense. The evidence also shows that no charge whatever has been preferred against Kivett, while the only charge preferred against Peacher is a charge of arson and his punishment fixed at a term of three years in the reform school. These facts were sufficient to go to the jury, and should have been submitted under proper instructions for the purposes asked in this instruction. (8) Instruction 12, asked by defendant, should have been given. While a want of motive is no excuse for a crime when a crime is clearly established, yet, in a case depending mainly on circumstantial evidence, the want of a motive is an important consideration bearing upon the probability of guilt. State v. Heusack, 189 Mo. 306; State v. Francis, 199 Mo. 687; State v. David, 131 Mo. 380; State v. Gordon, 199 Mo. 582; State v. Foley, 144 Mo. 630; State v. Bungton, 198 Mo. 23.

Herbert S. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State; A. W. Walker of counsel.

(1) There is nothing before this court for review except the record proper. Secs. 731, 1678, R. S. 1899; Viertel v Viertel, 212 Mo. 562. (2) A homicide committed in the perpetration of arson is not a distinct offense, but is only one of the methods by which murder in the first degree may be committed. An indictment for murder in the first degree includes murder in the second degree, and the proscuting attorney may elect to prosecute for murder in the second degree in all cases of indictment for murder in the first degree. Under such an indictment any method of killing may be proved, and the jury has power to return a verdict of guilty of murder in the second degree, and such verdict stands, although the evidence shows murder in the first degree strictly. Sec. 1815, R. S. 1899; State v. Myers, 99 Mo. 113; 1 Wharton's Crim. Law, sec. 393; Kelley's Crim. Law and Pr. (2 Ed.), sec. 486, p. 321; State v. Moxlev. 115 Mo. 651; State v. Schieller, 130 Mo. 516. This rule applies to all cases of murder in the first degree. The case of homicide committed in the perpetration of arson is not excepted from the rule, and in such case the jury have the power to return a verdict of guilty of murder in the second degree. R. S. 1899, secs. 1817, 2369, 2535; State v. Greer, 11 Wash. 244; State v. Howard, 33 Wash. 260; Lane v. Com., 59 Pa. St. 371; State v. Wagner, 78 Mo. 644; State v. Phinney, 13 Idaho 307. The prosecuting attorney has the right, at his option, at any time before or during the trial, to enter a nolle as to murder in the first degree, and elect to try defendant for murder in the second degree. And, as it is competent for the State to strike off from the charge of guilt a higher and more aggravated portion of the crime, and to prosecute for a lesser degree of criminality, so it is competent also for the court properly to instruct as to such lower degree. State v. Schieller, 130 Mo. 516; State v. Frazier, 137 Mo. 340; State v. Talmage, 107 Mo. 549; State v. Feeley, 194 Mo. 323. In the trial of a case, under an indictment charging murder in the first degree, when there is no evidence tending to prove murder in the second degree, an instruction as to murder in the second degree should not be given, but, under our statute (R. S. 1899, sec. 2369), if given, it is not such error as will warrant a reversal of the judgment of the court. It is an error in defendant's favor, of which he has no cause to complain. State v. West, 202 Mo. 139; State v. Nelson, 88 Mo. 126; State v. Wagner, 78 Mo. 644; Johnson v. State, 44 Tex. Crim. 335; State v. Todd, 194 Mo. 394; State v. Billings, 140 Mo. 205; 1 Bishop's New Crim. Proc. (4 Ed.), sec. 980, p. 606; Wharton on Homicide (3 Ed.), 250. A defendant convicted of murder in the second degree is in no position to complain of an instruction in respect to murder in the first degree. State v. Darling, 199 Mo. 202; State v. Riddle, 179 Mo. 298. (3) The motion for a new trial does not give the names of jurors respecting whom the trial court is alleged to have erred in refusing to sustain defendant's challenges. The court, not being informed as to what jurors defendant intended to embrace in the motion, will disregard such assignment of error on appeal. State v. Thomasitz, 144 Mo. 91; State v. Hottman, 196 Mo. 126. Such an objection as "We challenge this juror" amounts to no more than a general objection. No one of these challenges is sufficient to preserve the error complained of for review by this court. Nothing is better settled than that challenges for cause must be specifically stated. The particular cause must be set forth. State v. Taylor, 134 Mo. 142; State v. Myers, 198 Mo. 248. "It has always been held under section 2616, Revised Statutes 1899, that a person testifying on his voir dire in a criminal cause that he had read newspaper reports of the case and had formed an opinion which it would require evidence to remove, but that he could try the case fairly, is a competent juror." State v. Church, 199 Mo. 631; State v. Myers, 198 Mo. 250; State v. Vickers, 209 Mo. 28. And the question as to the qualification of a juror is one of fact to be found by the trial court from his whole examination, including his demeanor while on the witness stand. All doubts should be resolved in favor of the finding of the trial court, which should not be disturbed unless it is clearly against the evidence. State v. Cunningham, 100 Mo. 382; State v. Sykes, 191 Mo. 76. (4) Defendant complains that, inasmuch as a conspiracy was not alleged in the indictment, evidence of a conspiracy should not have been admitted. "It is well settled that the declarations and admissions of an accomplice in crime, made while the conspiracy exists, are admissible in evidence...