State v. Clymer

• Decision Date: 13 March 1942
• Docket Number: 37884
• Citation: 159 S.W.2d 808
• Parties: STATE v. CLYMER
• Court: Missouri Supreme Court

159 S.W.2d 808

STATE v. CLYMER

No. 37884

Supreme Court of Missouri, Second Division

March 13, 1942

Albert S. Ennis, of Festus, for appellant.

Roy McKittrick, Atty. Gen., and Oliver W. Nolen, Asst. Atty Gen., for respondent.

OPINION

BOHLING, Commissioner.

Convicted of the first degree murder of Harvey Martin and sentenced to life's imprisonment, in conformity with the verdict of the jury, Dallas Clymer prosecutes this appeal. He admits there was strong circumstantial and some direct evidence of his guilt. We, therefore, limit our statement of the facts. The homicide occurred between 1 and 1:30 a. m. October 11, 1940. Sometime (put by some witnesses in June, 1940) prior to the homicide, Clymer and Martin engaged in a fight in which Clymer was severely beaten. While Clymer was lying in the street and later in the doctor's office, he stated several times: 'I will kill that son-of-a-bitch if it is the last thing I do'; referring to Martin. Clymer resided at De Soto, Missouri. He testified he was making arrangements to join the army. On the evening of October 10, 1940, he borrowed Norman Eshbaugh's automobile to go to Crystal City to get in a crap game if possible and then go to Festus to pay one 'Red' Davis, who was in business with Martin, some money he owed him. He was accompanied on the trip by Raymond Crews. He wanted a gun to take to the crap game. He asked William Christopher, a tavern operator, for a pistol, which Christopher refused to lend him. Clymer thereupon purchased Christopher's gun, paying $ 10 therefor. Efforts to locate a crap game at Crystal City did not meet with success. He and Crews proceeded on to Festus. Later, that evening they parked the automobile in front of, or right near, Liolios' restaurant in Festus. He and Crews had been drinking. They, as we read the record, went into a nearby tavern. Clymer had the proprietor call Davis, testifying he did not want to go to Davis' place because Martin would be there and he did not want trouble. Upon Davis' arrival Clymer paid him a total of $ 58. In the meantime Martin went into Liolios' restaurant. About two or three minutes later, Clymer and Crews came out of the tavern. Crews started walking east and Clymer west towards his car. A witness who was sitting in a parked automobile testified that Clymer called Crews back and said: 'He is in there, go in and get him'; that he saw Crews take a gun out of his pocket and place it in his belt; that Clymer got in a car and sat behind the wheel and Crews entered the restaurant, and witness, after waiting for his wife, drove away. Crews, offered as a witness for the State, testified: that on the trip over, Clymer exhibited a pistol and said he intended it for Martin if he beat him up any more; that after they came out of the tavern, Clymer said: 'There is a man in there and if I do what I said I was going to do, I will go in there and take care of him'; that witness did not know Harvey Martin, had never seen him; that Clymer told him where Martin was sitting, stated that people in there knew him (Clymer), handed witness a pistol, said 'you go in there and shoot him', and he (Clymer) would wait in the car with the motor running. Martin was sitting on a stool with a friend next to him. Other people were in the restaurant. Crews entered the restaurant about four minutes after Martin arrived but came out, testifying he saw there were too many next to Martin. Martin got up and went to the wash room, returned and resumed his seat on the stool. Crews reentered, walked to where Martin was in the back of the restaurant and fired three shots in Martin's back while he was peaceably sitting at the restaurant counter. Martin fell off the stool and died.

I. Appellant's first contention is that by virtue of the combination of two or more of the occurrences next mentioned, if not by virtue of any one of said several matters, he did not have a fair and impartial trial.

a. It appears that some of the officers, particularly, according to appellant, Deputy Sheriff Murphy, who was deputy under then Sheriff McKee and was also appointed deputy under McKee's successor, Sheriff Lee, 'rigged up' a dictaphone in the jail and for about five hours or so endeavored to overhear any conversation that might occur between appellant and Crews, they being confined in the jail, which would connect appellant with the homicide. These efforts resulted in failure. Appellant advances no reason and cites no authority to sustain the requested ruling that this unsuccessful effort constituted prejudicial error. The sheriffs denied any knowledge of the occurrence.

b, and c. Separate informations were filed against appellant and Crews, each charging the named defendant with the murder as principal in the first degree. Appellant says that he and Crews should have been charged in the same information and the information should have stated the facts rather than charging appellant direct. The statutory authorization in § 3942, R.S. 1939, Mo.St.Ann. § 3553 p. 3152 (cited by appellant), to jointly charge in one indictment or information all persons concerned with the offense ( State v. Lando, Mo.Sup., 300 S.W. 767, 769[4]), contains this expressed modification: 'but the failure to so join them shall not invalidate the pleadings.' 31 C.J. p. 754, § 312, n 16, states: 'Save in the case of those offenses which cannot be committed singly, and those which cannot be committed by two or more persons jointly, parties jointly concerned in the same offense may be indicted jointly or separately. See 27 Am.Jur. p. 654, § 93, n 13; People v. Katz, 209 N.Y. 311, 325, 103 N.E. 305, Ann.Cas.1915A, 501. State v. Jones, 339 Mo. 893, 895, 98 S.W.2d 586, 587 [1], held the refusal of defendant's motion for a consolidation of causes to permit defendant, charged with attempted robbery, to defend himself as a coconspirator rather than as one who had committed the crime alone did not prevent defendant having a fair and impartial trial. Section 4839, R.S.1939, Mo.St.Ann. § 4446, p. 3052, provides: 'Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner as the principal in the first degree.' In the early case of State v. Davis, 1860, 29 Mo. 391, 396, Scott, J., said: 'A principal in the first degree is he who actually commits the crime. A principal in the second degree is he who takes [no] part in the actual commission of the offence, but is present aiding, abetting and assisting him who does. As the guilt of these parties is in the eye of the law equal, they are all punished alike; and if he, who is only present aiding and abetting those who actually commit the offence, is indicted as the actual perpetrator of it, the indictment is good, and is supported by proof of his presence and countenance, for they in the contemplation of the law are all principals.' See, also, State v. Steptoe, 65 Mo. 640, 642, affirming 1 Mo.App. 19; State v. Morehead, 17 Mo.App. 328.

d. The record does not sustain appellant's assertion that the prosecutor maneuvered to prevent appellant taking Crews' deposition. Evidence adduced by appellant disclosed that about two weeks prior to the trial appellant sought to take the deposition of Crews, and Crews, upon advice of his counsel, refused to testify; and that his counsel advised him not to testify for the reason stated of record that they had not then determined whether Crews would stand trial.

e, f and g. (and herein of appellant's point II). The court ordered a special venire facias for a panel of thirty jurors to try the case. Appellant complains on the ground that the jurors were not selected from the various townships of Jefferson county, and cites § 758, R.S.1939, Mo. St.Ann. § 8803 p. 4716; State v. Wheeler, 318 Mo. 1173, 1177 (II), 2 S.W.2d 777, 778 (2); State v. Knight, 312 Mo. 411, 418 (a), 278 S.W. 1036, 1038 (2); State v. Woodard, 309 Mo. 19, 25 (II), 273 S.W. 1047, 1049 (II); State v. Hayes, Mo.Sup., 262 S.W. 1034, 1036 (III). Jefferson county has a population of approximately 31,000 and seven townships, according to the record. Appellant's counsel admitted he had knowledge of no prejudice on the part of the sheriff against his client but was of opinion Deputy Sheriff Murphy was prejudiced and should not have been allowed to select the jury. According to the record Sheriff Lee summoned the jurors; summoned those who were handy and whom he believed would make good jurors. In summoning the jury he traveled to townships other than that in which his office was located. He conferred with no one with respect to the personnel of the jury. Deputy Murphy did not summon any juror or have anything to do with their selection. The veniremen were from the several townships of the county, save one. Appellant's claim, that what he considered the statutory method was not followed, is legal in nature. He makes no showing of prejudice in fact. The record does not establish error. Section 758, supra, is part of Ch. 5, Art. 4, which article relates to juries in counties having between 400,000 and 800,000 inhabitants, and is not applicable. Appellant's cases do not sustain his position. They recognize and apply the principle that the applicable statutory provisions respecting the action of the sheriff are directory only. See, also, State v. Hamilton, 340 Mo. 768, 778 [13], 102 S.W.2d 642, 647 [18, 19], citing cases. We are directed to the fact that when asked collectively no member of the panel stated he had conscientious scruples against...