State v. Conway

• Decision Date: 25 March 1943
• Docket Number: 38215
• Citation: 171 S.W.2d 677,351 Mo. 126
• Parties: State v. Kenneth David Conway, alias Cotton Conway, Appellant
• Court: Missouri Supreme Court

171 S.W.2d 677

351 Mo. 126

State v. Kenneth David Conway, alias Cotton Conway, Appellant

No. 38215

Supreme Court of Missouri

March 25, 1943

Rehearing Denied June 7, 1943.

Appeal from Clinton Circuit Court; Hon. R. B. Bridgeman Judge.

Reversed and remanded.

Frank L. Pulley and A. R. Alexander for appellant.

(1) The trial court had no jurisdiction over the person of the defendant to try him for the offense with which he was charged. Henry v. Henkel, 235 U.S. Rep. 219, 59 L.Ed. 203, 35 S.Ct. 54; Ex parte Lamar, 274 F. 160; State v. Buckner, 234 S.W. 651. (2) The indictment was insufficient. Sec. 4376, R. S. 1939. No evidence of premeditation was adduced. The indictment did not allege the homicide to have been committed in the commission of a crime or other felony, thereby not informing the defendant with the issues he had to meet. (3) The court erred in giving instructions 7 and 8, there being no evidence that defendant was present at the scene of the homicide and no evidence of any premeditation, and no direct or credible evidence that a robbery had been committed. 16 C. J. 1043; State v. Edwards 203 Mo. 528.

Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.

(1) The indictment in this case against the appellant, Conway, charges murder in the first degree and is sufficient. State v. Stacy, 103 Mo. 11, 15 S.W. 147; State v. Clay, 201 Mo. 679, 100 S.W. 439; State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763; State v. Messino, 325 Mo. 743, 30 S.W.2d 750; Secs. 4376, 4855, R. S. 1939; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132; State v. King, 342 Mo. 1067, 119 S.W.2d 322; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938; State v. Young, 345 Mo. 407, 133 S.W.2d 404. (2) Paragraphs 1, 2, 3, 4 and 5 of the motion for new trial are too general and insufficient to preserve anything for review. State v. Copeland, 335 Mo. 140, 71 S.W.2d 746; State v. Williams, 292 S.W. 19; State v. Carroll, 62 S.W.2d 863; State v. Francis, 330 Mo. 1205, 52 S.W.2d 552; State v. Tippett, 317 Mo. 319, 296 S.W. 132; State v. Burrell, 298 Mo. 672, 252 S.W. 709; State v. Standifer, 316 Mo. 49, 289 S.W. 856; State v. Simon, 317 Mo. 336, 295 S.W. 1076.

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

OPINION

BARRETT

Kenneth David Conway was convicted of murder in the first degree and sentenced to suffer the penalty of death.

By an irrefragable set of circumstances the state's evidence shows that Conway, an habitual criminal, shot and killed Cecil Curd, a filling station attendant, and the question presented by this appeal is whether the proof shows the killing to have been "deliberate and premeditated" compelling a verdict of murder in the first degree. Mo. R. S. A., Sec. 4376.

The state contends that the defendant's motion for a new trial is too general to save the point for review by this court. But paragraph eight of the motion asks for a new trial "because there was no evidence of premeditation or deliberation on the part of the defendant" and we do not see that more could be said to call the matter to the trial court's attention. It is the existence of premeditation and deliberation which defines, delineates and distinguishes murder in the first degree from other kinds and types of murder and permits the assessment of the death penalty. Mo. R. S. A., Secs. 4376, 4377 and 4378; State v. Eaton (Mo.), 154 S.W.2d 767; State v. Reagan (Mo.), 108 S.W.2d 391. The assignment is more specific and points out in greater detail and particularity and even more accurately the vice, if any, in the state's case than the assignment in a first degree murder case that "there is no substantial evidence to support the verdict" which was held to comply with the statutory demand that the motion for a new trial "set forth in detail and with particularity . . . the specific grounds or causes therefor." State v. Goodwin, 333 Mo. 168, 61 S.W.2d 960; Mo. R. S. A., Sec. 4125. Consequently we are confronted with the problem of whether or not the evidence was such that the only inference the jury could draw was that Conway's killing of Cecil Curd was deliberate and premeditated and, therefore, murder in the first degree, the only degree the jury was permitted to find under the court's instructions.

The state's theory is that the evidence shows a homicide "committed in the perpetration or attempt to perpetrate . . . robbery" and, therefore, the killing is "deemed murder in the first degree," dispensing with proof of deliberation and premeditation in their usually accepted sense. Mo. R. S. A., Sec. 4376; State v. Schnelt, 341 Mo. 241, 108 S.W.2d 377; State v. Barr, 340 Mo. 738, 102 S.W.2d 629; State v. Moore, 326 Mo. 1199, 33 S.W.2d 905. On the other hand, the defendant's position is that the state failed to prove a homicide in the perpetration of a robbery and thereby a deliberate and premeditated murder and for that reason he is entitled to a new trial.

The approved practice is to indict or inform against a defendant, as was done here, charging murder in the first degree in the usual language that he "did then and there with specific criminal intent wilfully, unlawfully, deliberately, premeditatedly, feloniously, on purpose, and of his malice aforethought" assault with a deadly weapon and kill Cecil Curd and then prove that the homicide occurred during a robbery, even though that fact is not charged in the indictment or information, and even though there is no other evidence from which the jury could infer the essential and distinguishing elements of deliberation and premeditation. State v. Nasello, 325 Mo. 442, 30 S.W.2d 132; State v. Messino, 325 Mo. 743, 30 S.W.2d 750. The "'deliberation and premeditation' formula, on the one hand," and the statutory named felony-murder rule, on the other hand, perform the function of determining what homicides may be capitally punished. 37 Col. L. R. 701, 706. "No new offenses are created by statutes with relation to murder in the perpetration of, or attempt to perpetrate, a felony or named felonies; the common-law offense remains the same, having been divided into degrees only. They only prescribe a severer punishment when murder is committed in the attempt to perpetrate a felony, on account of the enormity of the offense, and fix absolutely the degree of the offense, usually as murder in the first degree." Wharton, Homicide, Sec. 118, p. 173. Consequently, if the evidence shows that the murder was committed in the perpetration of a robbery or other statutorily named felony, then the crime is murder in the first degree and the jury could find "only one of two verdicts; namely, conviction of murder in the first degree, or an acquittal." State v. Kauffman, 335 Mo. 611, 73 S.W.2d 217; State v. Hart, 292 Mo. 74, 237 S.W. 473; State v. Jackson, 340 Mo. 748, 102 S.W.2d 612; State v. Yeager (Mo.), 12 S.W.2d 30.

But even so the fact remains that if the state's theory is that Conway killed Cecil Curd in the perpetration of a robbery it was incumbent upon the state to show by direct or circumstantial evidence that a robbery was perpetrated or attempted. "On a trial for homicide committed during the perpetration of, or attempt to perpetrate, another felony, the fact that defendant was engaged in the commission of a felony at the time of the killing must be established beyond a reasonable doubt, and every element of the offense must be so established, but need not be demonstrated to an absolute certainty, and may be shown by circumstantial evidence, or by the statement of defendant." 30 C. J., Sec. 549, p. 303; State v. Wright, 337 Mo. 441, 85 S.W.2d 7; Wharton, Homicide, Sec. 614, p. 952; the annotation in 63 L. R. A., 353, 397 398-399; State v. Donnelly, 130 Mo. 642, 32 S.W. 1124; State v. Greenleaf, 71 N.H. 606, 54 A. 38; Pliemling v. State, 46 Wis. 516, 1 N.W. 278. And, therefore, the question for our determination is whether there was any evidence that Conway was a party to an attempted or accomplished robbery during the course of which he shot and killed Cecil Curd.

Several people identified Conway and his accomplice, Don Stephens, as the strangers seen in Gower during the late afternoon and early evening of October 25, 1939. Some noticed that they were driving a black Ford automobile with an Oklahoma license plate on it. They were not seen in the D-X filling station about two and one-half miles from Gower on Highway 169 where Cecil Curd was killed, but Stephens was shown to have been there because his fingerprints were found on a coffee cup and Conway admitted that they were there. Mr. Dalrymple owned the station and lived upstairs. Between eleven and twelve o'clock he went upstairs to bed leaving Cecil alone and in charge. Some time later he was conscious of the fact that there was someone in the station asking for coffee. He went to sleep and was awakened by the sound of someone running across the floor and a car starting and driving away. When he got downstairs he found Cecil Curd lying on the floor behind the counter dead. He aroused the neighbors and soon officers and others arrived.

During that night William Strange, a school teacher, was acting as night watch for his father in the town of Smithville and while he was in a garage about 3:15 a car drove in through the driveway of the garage and up the street for some distance and turned around. They stopped and appeared to be tampering with a parked car and by the time the car came back Strange was standing at the corner of the bank building and was able to write the license number of the car on the side of the building as it passed. The license plate was Oklahoma 39AE037. Though Strange did not personally observe it he knew that the occupants of the Oklahoma car had stolen a doctor's automobile which was later abandoned on...