State v. Casto
| Decision Date | 13 December 1910 |
| Citation | 132 S.W. 1115,231 Mo. 398 |
| Parties | THE STATE v. EVERETT CASTO, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. Louis Hoffman, Judge.
Affirmed.
Geo. F Longan and S. E. Moore for appellant.
(1) As shown by the record there is not a word of evidence that tends to show or to intimate that the man Corbett had any knowledge, or even grounds, from which to suspect that Dr Simonds or anyone else had performed a criminal operation, or any other kind, on Anna Bell; and as far as the record shows he did not know and he never saw the defendant Casto. But the witness Brown was permitted to tell everything that Corbett said and did, from the time Anna Bell was brought to his home to the time of her death. (2) The court also permitted the witness Stotts to testify to statements made by Dr. Simonds, before any evidence whatever had been offered to prove a conspiracy. "It is well settled that in order that the acts and declarations of one conspirator may be admissible in evidence against his co-conspirator, it must first be made to appear that a conspiracy existed, and that such acts and declarations were in furtherance of the common design." 201 Mo. 727. In this case there was no pretense of showing a conspiracy before the introduction of the statements of the co-conspirators. It may be claimed that there was evidence later on in the case, tending to prove a conspiracy between Dr. Simonds and this defendant Casto, but there was at no time any evidence tending to show a conspiracy with Corbett. Yet his acts and statements were put before the jury and never withdrawn, by instruction or otherwise. (3) In addition to these serious and fatal errors, the appellant contends that the conduct of the prosecuting attorney, when examining the jurors on their voir dire, in saying that this defendant Casto had seduced the girl Anna Bell, was so prejudicial to the rights of the appellant as to constitute reversible error. It must be borne in mind that there was not a word of evidence or an intimation by a single witness that Casto had seduced the girl. If the evidence had tended to prove this charge, it might be said that the error was harmless. It was the only statement before the jury that tended to prove any motive for Casto to commit the crime. It was made by a sworn officer of the State, and it is unreasonable to say that it did not have its influence on the minds of the jurors.
Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State; Harvey D. Dow of counsel.
(1) The second count of the information is predicated upon section 4459, R. S. 1909, and fully meets the objections and requirements announced in State v. Emerich, 87 Mo. 110; State v. Meek, 70 Mo. 355. (2) The record discloses that while the jury was being impaneled and qualified, the prosecuting attorney, in stating the nature of the charge on which defendant was to be put upon trial, said defendant had seduced Anna Bell. The statement alone, however improper, afforded no basis for a challenge to the array. After the statement was made counsel for the defense had every opportunity to fully interrogate the jurors, which the record discloses they did, and ascertain whether this statement, or any other influence, would prevent them from trying the cause fairly and impartially. Each member of the panel thereafter qualified to the satisfaction of appellant, and he was accorded in this respect the only right to which he was entitled, a fair and impartial jury. State v. Hottman, 196 Mo. 122; State v. Matthews, 88 Mo. 124; Barnett v. Dalton, 69 Miss. 617. (3) Objections were interposed to evidence of statements and acts of appellant's co-defendants made and performed in the absence of appellant. This evidence was admitted upon the theory of a conspiracy entered into by appellant and his co-defendants for the purpose of producing the abortion. The record is replete with evidence showing that these parties were acting together in the accomplishment of a common and unlawful design, steadily pursuing and finally accomplishing the same object, and jointly guilty of conduct which does not harmonize with the actions of innocent men, and which is inconsistent with any reasonable theory except that they were criminal conspirators. A conspiracy, like any other fact, may be established by circumstantial evidence, and it is not necessary that it be proven by express agreement between the conspirators, or by direct evidence of any agreement. State v. Kennedy, 177 Mo. 166. In this case the trial court, whose duty it was in the first instance to say whether there was any evidence of conspiracy, has found that there is such evidence, and its finding was sustained by the finding of the jury to which the question of conspiracy was properly submitted. The evidence of conspiracy in this cause is sufficient for that purpose. State v. Walker, 98 Mo. 103; State v. Roberts, 201 Mo. 728; State v. Kennedy, 177 Mo. 130; State v. Spaugh, 200 Mo. 591; State v. Darling, 199 Mo. 201; State v. Vaughn, 200 Mo. 20; State v. Ross, 29 Mo. 32; State v. Hickman, 75 Mo. 416; State v. Duncan, 64 Mo. 262. (4) The evidence discloses that on the evening of May 2nd, when the girl was taken to the room in Sedalia, this being but one week before she was delivered of the child, and but two weeks before her death, she was in good health. After this showing was made, the burden of proving that the operation was necessary in order to preserve the life of the girl, or that such operation had been advised by a physician to be necessary for that purpose, was on appellant. State v. Meek, 70 Mo. 355; State v. Hathaway, 115 Mo. 56. Under the decisions of this court, as well as common-law authorities, it is necessary for the indictment to negative exceptions which, under the statute, excuse the act, but the burden of establishing the excuse and bringing the accused within the exception is always on the defendant when such matters are within the peculiar knowledge of such defendant, as in this case. State v. Woodward, 182 Mo. 391; State v. Lipscomb, 52 Mo. 32; State v. Hathaway, 115 Mo. 36.
At the November term, 1908, of the circuit court of Pettis county, the prosecuting attorney filed his information, containing two counts. The second count is in the words and figures following, omitting caption:
Which information was duly verified, before the clerk of the court, December 1, 1908.
The defendants were arrested and duly arraigned. The cause was continued from term to term until the November term, 1909, at which term a severance was ordered and defendant Casto was put upon his trial before a jury duly impaneled, and was found guilty as charged in the foregoing count and his punishment assessed at four years' imprisonment in the penitentiary. Motions for a new trial and in arrest were duly filed and overruled and defendant was sentenced in accordance with the verdict. From that sentence he appeals to this court.
On the part of the State the testimony tends to prove that on May 2 1908, and for several months prior thereto, one Anna Bell, a female, was employed as a servant in the home of John T. Stinson, secretary of the State Fair Association, in the town of Sedalia, Missouri. At...
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