State v. Conway

• Decision Date: 07 June 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

June 7, 1943

Reported at 351 Mo. 126 at 135.

Original Opinion of March 25, 1943, Reported at 351 Mo. 126.

Ellison and Tipton, JJ., concur; Leedy, J. dissents.

OPINION

PER CURIAM.

On Motion For Rehearing.

In its motion for a rehearing the state does not object to the principles applied but contends that we have overlooked the effect and purport of certain evidence; evidence from which the jury did and should be permitted to find that Conway was engaged in the perpetration of or attempt to perpetrate a robbery when he shot and killed Cecil Curd. The state's position is that by circumstantial evidence it discharged its obligation of proving beyond a reasonable doubt that Conway and his accomplice were engaged in the commission of or attempt to commit a robbery.

The state again points to Mr. Dalrymple's evidence, especially his testimony that before he went upstairs to bed he forgot and left $ 95.00 to $ 100.00 in his billfold "on the shelf behind the stairway" and the next morning it was gone. He also testified that he left eight or ten dollars with Cecil for the purpose of making change and that Cecil had some money of his own. He said Cecil kept the station money in his overall pocket and his own money "in a billfold up here in his overcoat." In our principal opinion we pointed out the objections to and the weaknesses of all this evidence and indicated why we thought it insufficient to sustain the state's theory of its case. A re-examination of the record has not changed our views but there is one further circumstance strongly corroborative of what we have already said.

The appellant's twenty-fourth assignment in his motion for a new trial is as follows: "Because the state offered testimony to the effect that money was missing from the body of deceased (Curd) shortly after the homicide by witness Dalrymple, thereby implying that defendant had taken said money, when in truth and in fact said moneys had been taken from the body of deceased by the coroner of Clinton County and also by the undertaker, as appears from the affidavit of Dr. A. D. Templeman, Coroner, attached hereto. And said facts first came to the knowledge of defendant and his counsel after the verdict of the jury was rendered, although due diligence by defendant's counsel was exercised in attempting to learn these facts, which facts they did not at the time know."

The attached affidavit of Dr. Templeman is as follows: "I A. D. Templeman of lawful age and residing in Cameron, Clinton County, Mo. and after being first duly sworn on oath state, that I am a regularly licensed...