State v. Bradley
| Decision Date | 13 November 1950 |
| Docket Number | No. 41961,No. 1,41961,1 |
| Citation | 234 S.W.2d 556,361 Mo. 267 |
| Parties | STATE v. BRADLEY |
| Court | Missouri Supreme Court |
William M. Stringer Moberly, for appellant.
J. E. Taylor, Atty. Gen., Frank W. Hayes, Asst. Atty. Gen., for respondent.
VAN OSDOL, Commissioner.
Defendant was convicted of murder in the first degree. His punishment was assessed at life imprisonment in the state penitentiary. He has appealed from the ensuing judgment.
There was substantial evidence tending to show that defendant, who formerly lived at Moberly, had entered into a conspiracy with four others (Herman Alva Robinson, William F. Wiley, Jack Warren Babcock and Arthur Schofield) to rob; and that the conspirators, including defendant, 'shortly after midnight' in the morning of Sunday, December 7, 1947, pursuant to the conspiracy, participated in the robbery of persons present at a filling station operated by one Roy Eubank at a point on the east side of United States Highway No. 63 about one mile south of Moberly in Randolph County, in the perpetration of which robbery Roy Eubank was fatally shot by the conspirator Arthur Schofield.
Herein upon appeal defendant-appellant contends the information was fatally defective because it did not aver 'conspiracy.' And defendant-appellant further contends the trial court erred (1) in refusing to require the State to elect to reduce its charge to murder in the second degree; (2) in overruling defendant's motion to require the State to invoke habeas corpus ad testificandum for the State's witness Robinson; (3) in the exclusion of evidence; (4) in permitting a witness to refresh his recollection by referring to a memorandum; and (5) in the giving and refusal of instructions.
The conspirators were charged severally, and the information charging defendant with the stated crime of murder in the first degree was in common form. See State v. Conway, 351 Mo. 126, 171 S.W.2d 677. The information did not aver, and it was unnecessary that it aver the homicide was committed by another, who, with defendant and others had entered into a conspiracy to rob. Defendant was not prosecuted for participating in a conspiracy. He was not prosecuted for robbery. He was prosecuted for murder. The evidence of the conspiracy was but an incident to the crime charged, and the proof that the homicide was committed in the perpetration of robbery was tantamount to proof of the constituent elements of the crime of murder in the first degree. Section 4376, R.S.1939, Mo.R.S.A. Sec. 4376; State v. Parr, 296 Mo. 406, 246 S.W. 903; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132; State v. Messino, 325 Mo. 743, 30 S.W.2d 750; State v. Conway, supra; State v. Foster, 136 Mo. 653, 38 S.W. 721; People v. Cabaltero, 31 Cal.App.2d 52, 87 P.2d 364.
(1) As we have said, the several conspirators were severally charged with the stated crime. Changes of venue were granted Wiley and Babcock to the Circuit Court of Boone County wherein they entered pleas of guilty to the charge of murder in the second degree, and were sentenced to life imprisonment. Defendant-appellant's case, the instant case, was transferred upon change of venue to Audrain County. Defendant-appellant contends the Circuit Court of Boone County, in disposing of the Wiley and Babcock cases, 'passed upon the facts' and by solemn judgment determined that the crime, if any, committed by the conspirators was murder in the second degree. Defendant urges the issue of the degree of the crime is res judicata.
In civil actions the application of the doctrine of res judicata in generally limited to a former judgment in an action between the same parties, or between those in privity with them. 50 C.J.S., Judgments, Sec. 601, p. 25. Defendant-appellant was not a party defendant in the cases disposed of by judgment and sentence entered and pronounced upon the pleas of guilty of Wiley and Babcock in the Circuit Court of Boone County. The disposition of the Wiley and Babcock prosecutions, to which he was not a party, was of no concern to defendant herein. The judgments in the Wiley and Babcock cases could not have been pleaded in bar by defendant, nor was evidence of the disposition of those cases admissible in the instant case. State v. Brown, 360 Mo. 104, 227 S.W.2d 646; State v. Couch, 341 Mo. 1239, 111 S.W.2d 147; State v. Recke, 311 Mo. 581, 278 S.W. 995. The doctrine of res judicata, in its application to criminal prosecutions, is subject to the same limitations as apply to civil actions. State v. Humphrey, 357 Mo. 824, 210 S.W.2d 1002; Annotation, 147 A.L.R. 911, at page 992; 50 C.J.S., Judgments, Sec. 754, p. 266, at page 268.
(2) The State did not make application for habeas corpus ad testificandum for its witness Herman Alva Robinson, who, at the commencement of the trial of the instant case, was confined in the Randolph County jail at Huntsville. He was produced and testified for the State in the prosecution of the State's case against defendant without any compliance by the State with Sections 1909 and 1911, R.S. 1939, Mo.R.S.A. Secs. 1909 and 1911. Defendant moved to suppress the testimony of Robinson on the ground that defendant had the right to have the State make application, as provided in Section 1909, supra, so that defendant might 'know the testimony of the said Robinson.' It was further stated in the motion that Robinson had refused to talk to defendant or to defendant's attorney because of fear of self-incrimination. The trial court did not err in overruling defendant's motion.
The name of the witness, Herman Alva Robinson, was endorsed as a witness on the information on November 22, 1948, nearly five months before the trial beginning April 18, 1949. (The was no showing, nor does defendant contend that the sheriff of Randolph County, as keeper of the Randolph County jail in which Robinson was confined, refused defendant's counsel the opportunity to interview Robinson.) The name of Robinson having been endorsed on the information, defendant was then apprised that the State might rely upon his testimony. Defendant had more tham ample time thereafter to interview the witness. Defendant-appellant misconceives the purpose of the application and statement provided in Sections 1909 and 1911, supra, especially the purpose of the requirement of Section 1911 that the application shall state 'the testimony of such prisoner is material and necessary to the applicant' on the trial or hearing of a suit or proceeding, civil or criminal. The required statement of the materiality of the testimony of a prisoner is not prescribed in order that an opposing party may be apprised of the testimony of a witness. The required statement is to enable the court, or a judge thereof, in the exercise of sound discretion, to determine the necessity of the attendance of the prisoner as a witness. State ex rel. Rudolph v. Ryan, 327 Mo. 728, 38 S.W.2d 717. See also In re Thaw, 3 Cir., 166 F. 71.
(3) The trial court excluded defendant's proffer of the record of the Circuit Court of Randolph County disclosing the filing, July 20, 1948, of the transcript of the preliminary hearing in the case of State v. Herman Alva Robinson. Defendant-appellant further offered to prove by the record that no information had been theretofore filed against Robinson. Defendant-appellant's announced purpose, in offering the record 'only,' was to prove a circumstance 'tending to show that the State is offering leniency to the witness.' If leniency had been offered or promised the witness Robinson, such fact would have been material as affecting his credibility as a witness; and defendant, of course, was entitled to go into the question. Counsel for defendant had subjected Robinson to a searching cross-examination of great length especially relating to the privileges granted him by the officers, and relating to promises or offers of leniency. However, the fact, without more, that no information had been yet filed against Robinson, was of very doubtful probative force in tending to show the State and made such an offer or promise, and the admission of the record into evidence might have precipitated a further inquiry out of all proportion to its evidentiary value. We believe the trial court did not err in excluding the record.
(4) The sheriff of Randolph County, Amos Magruder, and other officers received custody of defendant from officers of Kansas City where defendant had been apprehended. The transfer of custody was made at a point between Lexington and Waverly in the afternoon of Saturday, April 3, 1948. The sheriff testified that, while driving from that point to Moberly, the officers 'talked the thing over with Alfred (defendant) all the way into the office.' In testifying of the statements made by defendant during the journey, the sheriff was permitted, over defendant's objection, to refer to notes made from memory by the witness on Monday, April 5th, the second day after the event. Defendant's objection was on the stated ground the memoranda were not made at the time 'the conversation was had.'
If a reference to a memorandum 'sparks' a present recollection so that a witness can testify from independent resensing or revisualization of the event, the time when the memorandum was made is of little moment, because the probative force of the testimony of the witness is his independent present recollection of the event. On the other hand, if, having referred to a memorandum, the present recollection of the witness is not stimulated, the witness must necessarily rely upon his past recollection as recorded in the memorandum; and in such a situation the correctness and trustworthiness of the memorandum are of importance, because the faith reposed in the verity of the memorandum affords the probative force of the testimony of the witness. Collier v. Langan & Taylor Storage & Moving Co., 147 Mo.App. 700, 127 S.W. 435; Ward v. Morr...
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