State v. Concelia

• Decision Date: 20 May 1913
• Citation: 157 S.W. 778,250 Mo. 411
• Parties: THE STATE v. JOE CONCELIA, Appellant
• Court: Missouri Supreme Court

157 S.W. 778

250 Mo. 411

THE STATE v. JOE CONCELIA, Appellant

Supreme Court of Missouri, Second Division

May 20, 1913

Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.

Affirmed.

James Fairweather for appellant.

The evidence is not sufficient to sustain the verdict and judgment of the court. (a) The evidence fails to establish the corpus delicti. Wills on Circum. Ev. (Ed. 1905), p. 297; State v. Francis, 199 Mo. 671; State v Johnson, 209 Mo. 346; State v. Jones, 106 Mo 313; State v. Knows, 90 Mo.App. 240; State v Baker, 144 Mo. 323; State v. White, 189 Mo. 339; State v. German, 54 Mo. 526; Yalooski v. State, 82 Wis. 580; State v. Gragg, 122 N.C. 1082; Abbott v. Com., 42 S.W. 344; State v. Millmeier, 102 Iowa 692; Harris v. State, 19 Am. St. 837. (b) The evidence fails utterly to establish the guilt of the defendant or to connect him in any way with the crime charged, and indicates that the jury were actuated by passion and prejudice. State v. Francis, 199 Mo. 671; State v. Johnson, 209 Mo. 346; State v. Morney, 196 Mo. 43; State v. Crabtree, 170 Mo. 642; State v. Nesenhener, 164 Mo. 461; State v. May, 142 Mo. 152; State v. Heusack, 189 Mo. 295; State v. Glahn, 97 Mo. 692; State v. Scott, 177 Mo. 665; State v. Bartlett, 170 Mo. 658; State v. Wickiser, 177 Mo. 674; State v. Tilley, 90 Va. 99. There is not a scintilla of evidence that the defendant was with deceased after leaving him at Fifth and Grand avenue. The mere circumstance that deceased was found near where defendant had visited relatives, is not sufficient to convict.

John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.

(1) Defendant claims the court erred in not instructing the jury on all of the questions of law arising under the evidence in this case; he did not offer or request any definite instruction, and he did not suggest to the court that the court should instruct upon any specific ground on which the court had failed to instruct. The general allegation in a motion for a new trial is not sufficient to raise the question. State v. Conway, 241 Mo. 271; Secs. 5244 and 5245, R.S. 1909. The only exception to the above rule is in a case where there has been a failure to instruct the jury upon a question which goes to the fundamental rights of the defendant. State v. Conway, 241 Mo. 271; Sec. 5231, R.S. 1909. (2) When the evidence is sufficient to support a verdict then it becomes the peculiar right of the jury to consider and pass upon: (a) The weight of the evidence: State v. McDowell, 214 Mo. 343; State v. Sassaman, 214 Mo. 738; State v. Devorss, 221 Mo. 477; State v. Shelton, 223 Mo. 141; (b) the credibility of the witnesses: State v. Wooley, 215 Mo. 687; and (c) to determine all conflicts in the evidence: State v. Sharp, 233 Mo. 295. If there is any evidence to support the verdict in this case, then under the various cases above mentioned this judgment must be affirmed. (3) Is the evidence sufficient to support the verdict? That is the only serious question in this case. State v. Nesenhener, 164 Mo. 461; State v. Crabtree, 170 Mo. 642; State v. Gordon, 199 Mo. 561; State v. Francis, 199 Mo. 671; State v. King, 174 Mo. 647; State v. Mahan, 138 Mo. 112; State v. Marshall, 47 Mo. 378. (4) Before this court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is that the verdict is the result of passion. State v. Howell, 100 Mo. 659; State v. Orr, 64 Mo. 345; State v. Dickson, 78 Mo. 447; State v. Howell, 117 Mo. 346; State v. Lackland, 136 Mo. 32; State v. Miller, 156 Mo. 76; State v. Foley, 144 Mo. 620; State v. Tettaton, 159 Mo. 354; State v. Barrington, 198 Mo. 23. (5) In circumstantial evidence, proof to sustain a conviction must show: First, the criminal act, the corpus delicti; second, the defendant's guilty agency in its production. State v. Crabtree, 170 Mo. 650; State v. Jones, 106 Mo. 312; State v. Dickson, 78 Mo. 447; 3 Greenleaf Ev., sec. 30; Wharton Crim. Ev., sec. 325; 4 Elliott Ev., sec. 2708. (6) "It is a fundamental principle of the law of circumstantial evidence that each independent fact must be proved in the same satisfactory manner as if the whole issue rested upon the proof of that fact. Com. v. Webster, 5 Cush. 285; 1 Starke Ev., 510." State v. Crabtree, 170 Mo. 654. (7) If it appears that defendant had no motive for this murder, then that is a circumstance in favor of defendant. State v. David, 131 Mo. 397; State v. Crabtree, 170 Mo. 651; 4 Elliott on Evidence, sec. 2719, n. 79; 12 Cyc. 149. The only motive suggested in this case is that of robbery. (8) In a criminal case, based solely on circumstantial evidence, to justify the inference of guilt, the acts and circumstances should be consistent with each other, and with the guilt of the defendant, and inconsistent with any reasonable hypothesis of the innocence of defendant. State v. Moxey, 102 Mo. 388; State v. Hendricks, 172 Mo. 654; State v. Taylor, 111 Mo. 538; 4 Elliott on Evidence, sec. 2709. Other states have announced the same rule. People v. Fitzgerald, 156 N.Y. 258; People v. Nelson, 85 Cal. 430; State v. Miller, 9 Houst. 564; Cavender v. State, 126 Ind. 47; State v. Johnson, 19 Iowa 234; James v. State, 45 Miss. 579; State v. Milling, 35 S.C. 25; 3 Ency. Ev. 92, par. 2, n. 91; 3 Greenleaf Ev., sec. 137. (a) It is also held that circumstantial evidence in a criminal case is of no value if the circumstances are consistent with the hypothesis of innocence or the hypothesis of guilt. Andrew v. State, 42 S. E. (Ga.) 476; State v. Flanagan, 26 W.Va. 116; Pogue v. State, 12 Tex.App. 283. (b) It may be a fact that a crime will be shrouded in mystery if a verdict of guilty is not returned; but such fact cannot justify a verdict of guilty. Schusler v. State, 29 Ind. 394; Webb v. State, 73 Miss. 456; State v. Fahey, 54 A. 690. (c) It is not sufficient that the facts create a strong suspicion against the defendant. France v. State, 68 Ark. 529; Laws v. State, 114 Ga. 10; State v. Clousser, 69 Iowa 313; Silvey v. State, 36 S. E. (S. C.) 608; Davis v. Comm., 99 Va. 838; Leisenberg v. State, 60 Neb. 628. (d) Nor that there arises from the evidence a strong probability of defendant's guilt. Wharton v. State, 73 Ala. 366; People v. Dick, 32 Cal. 213; Algheri v. State, 25 Miss. 584; Dreesen v. State, 38 Neb. 375.

FARIS, J. Brown, P. J., and Walker, J., concur.

OPINION

FARIS, J.

Defendant was charged by information in the criminal court of Jackson county with murder in the first degree, for that, as is charged, he had killed an unknown man, designated in the information as John Doe. The jury having found him guilty of murder in the second degree and having assessed his punishment at imprisonment in the penitentiary for twenty years, he prosecutes this appeal.

The facts in this case are few and simple, and upon the facts alone the case must stand or fall. On the night of March 23 1912, at Kansas City, there was a snow of great depth, varying in that behalf, as the witnesses aver, from eighteen to twenty-four inches. On the morning following, at an early hour, an unknown man was found dead on the sidewalk in front of 542 Campbell street, this point being near Missouri avenue, on which avenue certain flats, which play an important part in this tragedy, were located. An examination of the body revealed three wounds, two of which were in their nature mortal. One of these wounds was on his left side, seemingly from the cut of a large, sharp knife, which penetrated the lung and produced a hemorrhage from which, evidently, the man had died. One of the gunshot wounds was in the face of the unknown man, evidently penetrating the brain, and was in itself alone sufficient to cause death. Deceased was dressed roughly; his coat was of heavy duck or canvas, fleecelined with sheep skin; he wore felt boots over which heavy rubber overshoes were drawn. His pantaloon pockets were turned inside out and no money or evidences of identity were found on him. His condition indicated that the motive for his killing was robbery. The finding of the unknown; the manner of his death and the inability, which still persists, to identify him, constituted a mystery, which induced much comment in the papers of Kansas City for a number of days. The police investigated, but for more than a week were unable to obtain any information of the man or of the manner of his death. About the 5th of April they were informed that the deceased, in company with defendant, who was locally known as "St. Louis Joe," at about one o'clock on the night of the homicide, had visited a house of prostitution kept by one Toll Arnold; that deceased and defendant came to this house about one o'clock on the morning of March 24th, and that they remained therein about an hour, leaving the house together at about two o'clock. While in this house, deceased was entertained on two different occasions by two different inmates of the place. He had bought some beer and spent twenty cents in a music box or piano; spending there altogether some $ 3.20. During the whole of this time defendant remained in the parlor or reception room; but was not entertained by any of the inmates and spent no money. While in the house deceased made inquiry as to where he could obtain a bed. He was offered accommodations at this house, but deeming the price quoted exorbitant he asked the keeper of the house where he could find a cheap bed, and was, among other places, directed by her to a certain livery stable where some Italians were rooming. Later, in this house he exhibited a pocket book in which, in addition to the silver money with which he paid his reckoning, there was certain...