State v. Boyer

• Citation: 112 S.W.2d 575,342 Mo. 64
• Decision Date: 26 January 1938
• Docket Number: 35411
• Parties: The State v. Ray Boyer, alias Raymond Boyer, Appellant
• Court: United States State Supreme Court of Missouri

112 S.W.2d 575

342 Mo. 64

The State v. Ray Boyer, alias Raymond Boyer, Appellant

No. 35411

Supreme Court of Missouri

January 26, 1938

Rehearing Granted, Reported at 342 Mo. 64 at 75.

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge.

Affirmed and remanded (with directions).

Roy McKittrick, Attorney General, Olliver W. Nolen and Arthur O'Keefe for respondent.

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

OPINION

COOLEY

In the Circuit Court of Jackson County defendant, appellant, was convicted of murder in the first degree for the killing of W. Dale Sandford, sentenced to death and has appealed. He was represented below by counsel appointed for him by the court but has filed no brief in this court. We must, therefore, look to the motion for new trial for the grounds on which reversal is sought.

The State's evidence tends to show the following:

The deceased, W. Dale Sandford, who was about thirty years of age, lived with his mother in Kansas City, Kansas. He belonged to a military organization, referred to as the Reserve Officers' Training Association, and on the evening of April 9, 1936, attended a meeting of the association, having with him a twenty-two pistol for use in target practice. He left the hall in which the meeting was held about nine-thirty P. M. and from then till about midnight was at various places in Kansas City, Kansas, with friends. His movements during this interval are here unimportant. About midnight he went over, apparently alone, to Kansas City, Missouri, where he met the defendant Boyer. It seems they had not met before. The occasion and the details of this meeting as well as, to a large extent, the subsequent movements of the two, are gleaned from a written confession made by Boyer after his arrest and which was introduced in evidence. According to this confession defendant, by chance, met deceased at or near the entrance of a "beer place," accosted him and asked him if he wanted a drink, to which deceased replied that he was not much of a drinker but would take one or two, and did, defendant furnishing the liquor from a bottle he had with him. In this connection, to keep the chronology clear, defendant, after his arrest, told an officer that on the evening of April 9th, before meeting Sandford, he had determined to rob someone, being out of funds, and had armed himself for that purpose; that he saw Sandford drive up to the restaurant, -- "beer place," -- observed that Sandford was well dressed and had a new car, and accosted Sandford when the latter came out of the restaurant, and when they got in the car "put a pistol on him;" that he thought, from Sandford's appearance and his having a good automobile, that he had money; that Sandford then told him his name. Pursuing now the written confession: Defendant said that after taking a drink or two Sandford suggested that they should not stand on the street and to get into his -- Sandford's -- car; that they did so and drove around for about an hour; that he told Sandford he was out of work and wanted to go to St. Louis and Sandford said he was only working part time and would go with him. They then started toward St. Louis, on Highway No. 40. He then described how they stopped at one or two places and tried, unsuccessfully, to get checks cashed, the last of such places, before the homicide, being a place called Ideal Camp. We quote from the confession at this point:

"Right after coming out of Ideal Camp Sandford said, 'Maybe we had better go back to Kansas City.' But I said, 'No, we are going on.' We continued to argue about whether we were going back to the city or on to St. Louis till we got to a spot on 40 highway just east of Oak Grove, Missouri, and where there were no houses near. After Sandford stopped the car saying 'I am going to turn around and go back,' I pulled a 32 U.S. Revolver that I had, and which was fully loaded, forcing Sandford out of the car and making him take off his coat and vest which I threw back into the automobile. I then forced him to walk off the road into a field a distance and told him to take off his tie as I was going to use it to tie him up, it was my intention at this time to take the car and to go on to St. Louis. When I asked him to take off his tie he pulled his hand out of his pants pocket and pulled out what it looked to me to be a revolver. I then fired three shots, shooting him three times and he fell to the ground. The revolver I used to kill Sandford I obtained in Washington, D. C. I have been shown a revolver in the office of Thomas B. Bash, Sheriff of Jackson County, Missouri, which I identify as the revolver used by me in the killing of Sandford. After Sandford had dropped to the ground I took his pants off and picked up his gun leaving him in the field and went back to the automobile where I removed from his clothes his billfold and checkbook and other papers and then got in the car and continued to drive east. . . ."

Defendant in his confession then told in detail how he proceeded to St. Louis, stopping at several places and attempting to cash checks to which he forged Sandford's name, passing himself off as Sandford and using cards and papers he had taken from deceased to identify himself as Sandford. At two places he thus succeeded in cashing checks, one for $ 2 and one for $ 5, and at another place he left the suit of clothes he had taken from Sandford as security for a tank full of gasoline which he there purchased, promising to return and "redeem" the clothes. He reached St. Louis in the forenoon of April 10th where, soon after his arrival, he was arrested by police officers, the murder having been discovered that morning and news thereof broadcasted. Deceased's pistol, watch, pocketknife, billfold, checkbook and various identification cards and papers were in defendant's possession when arrested, as well as deceased's automobile. He at first denied his guilt. He was taken back to Kansas City the same day and on the way was confronted with and identified by several people at places where he had stopped after the homicide and at the places where he and Sandford had stopped. Persons at places where he and Sandford had stopped also identified Sandford from a photograph introduced in evidence. Defendant's confession was made soon after his return to Kansas City. That it was voluntary and properly admitted in evidence was sufficiently shown. The motion for new trial does not complain of its admission so the evidence showing its admissibility need not be detailed.

Sandford's dead body was found early in the morning of April 10th in a field adjacent to Highway No. 40 and about a hundred or a hundred and twenty-five feet from the highway. He had been shot three times in the head. From the nature of the wounds death must have been instantaneous. Powder marks on his sleeve indicated that he may have thrown up his arm just before the fatal shot as though in an instinctive effort to protect himself. His coat, vest and trousers had been removed.

Defendant's confession was, as we have indicated, a detailed and rather lengthy statement. As to facts therein stated relative to the places where he and Sandford had stopped prior to the homicide, and places where defendant had stopped thereafter enroute to St. Louis, and his actions, etc., at such places, as well as after arriving at St. Louis, his possession of deceased's property and effects, his passing himself off as Sandford, -- in short all the facts and circumstances except when the two men were alone together, -- were shown by evidence other than the confession substantially as stated in that instrument. The facts and circumstances proved, without the confession, would alone be sufficient to sustain a verdict of guilty. In fact there seems to be no serious contention that defendant did not kill the deceased. He did not testify at the trial and offered no evidence. Aside from some contentions of a more or less technical nature, which we shall discuss, defendant's effort at the trial, as indicated by his counsel's argument to the jury, seems to have been directed to an attempt to procure a sentence of life imprisonment instead of the death penalty which the State was asking. We deem it unnecessary to make a more detailed statement of the facts. Such further reference to the facts as may seem necessary will be made in connection with particular points to be considered.

Appellant's first point in his motion for new trial is "that the court erred in overruling defendant's motion to quash the jury panel and the challenge to the array in said cause." No reason is assigned. The motion is long covering six typewritten pages of the transcript. It does not challenge the personal fitness of the men drawn for jury service nor the fact that their names were drawn from a jury wheel or box as provided by Sections 8797 and 8798, Revised Statutes 1929 (Mo. Stat. Ann., p. 4715). It goes rather to the manner in which the jury commissioners had performed their duties in keeping the jury list revised. Defendant's motion seems to concede, -- at least it indicates, [342 Mo. 69] -- that there were over 43,000 names of men qualified to act as jurors in the jury wheel. Some of those whose names had originally been placed in the wheel had died or moved away, others could not be located, and others had been disqualified. Those names had been removed from the wheel. Many names of jurors who had served during the preceding three months prior to the regular quarterly meetings of the board of jury commissioners would be, at each or most of such meetings, ordered held out of the jury wheel for a period of one year, -- this no doubt, pursuant to a provision contained in Section 8803, Revised Statutes 1929 (Mo. Stat. Ann., p. 4716), that no person shall be...