State v. Copeland, 33,170.

Citation71 S.W.2d 746
Decision Date17 May 1934
Docket NumberNo. 33,170.,33,170.
CourtUnited States State Supreme Court of Missouri
PartiesTHE STATE v. EUGENE COPELAND, <I>alias</I> WARD BERRY, <I>alias</I> BARNEY WARD, Appellant.

Appeal from Circuit Court of City of St. Louis. Hon. Erwin G. Ossing, Judge.

AFFIRMED.

De Witte T. Lawson for appellant.

Prejudicial cumulative testimony was introduced by the State in testimony of Max Davis and Sam Weber, brother and brother-in-law respectively of deceased. State v. Baublets, 27 S.W. (2d) 16. Introduction of forty-five bullets taken from the floor five days after the death of deceased, and after the State had shown previously that the only bullet in the place was removed by a colored employee was erroneous. Also it was error to refer to letter from suspect never caught. State v. Cropper, 36 S.W. (2d) 193. Verdict and sentence should be reversed where circumstantial evidence points suspicion toward accused, but does not exclude every reasonable theory of innocence. State v. Francis, 98 S.W. 11; State v. Richardson, 36 S.W. (2d) 944; State v. Singleton, 243 S.W. 147; State v. Buckley, 274 S.W. 74; State v. Pritchett, 39 S.W. (2d) 974. A strong suspicion of accused's participation in conspiracy to rob is insufficient to sustain conviction of first degree murder. State v. Nagle, 32 S.W. 596. Instruction defining deliberately as "Indicating intent to kill, executed in furtherance of design to accomplish some other unlawful purpose is erroneous and misleading." State v. Kaufman, 46 S.W. (2d) 843.

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

(1) Paragraphs 1, 2, 4, 5, 6 and 7 of the motion for new trial are too general assignments of error and are insufficient to preserve anything for review. Sec. 3735, R.S. 1929; State v. Anno, 296 S.W. 827; State v. Williams, 292 S.W. 20; State v. Carroll, 62 S.W. (2d) 867; State v. Francis, 52 S.W. (2d) 552; State v. Standifer, 289 S.W. 857; State v. Tippett, 296 S.W. 135; State v. Burrell, 298 Mo. 678; State v. Simon, 295 S.W. 1080; State v. Fannin, 296 S.W. 85; State v. Adams, 318 Mo. 723, 300 S.W. 743; State v. Hohensee, 62 S.W. (2d) 436; State v. Miller, 17 S.W. 356; State v. Jetts, 300 S.W. 752; State v. Moore, 36 S.W. (2d) 928. (2) There was no error committed in regard to the Sadler letter. Assistant circuit attorney not guilty of misconduct in closing argument to jury. State v. Carroll, supra; State v. Tippett, supra; State v. Ellis, 290 Mo. 230; State v. Beaghler, 18 S.W. (2d) 426; State v. Janes, 1 S.W. (2d) 139. (3) The punishment assessed by the jury is not excessive. 16 C.J. 1364; State v. Chissell, 245 Mo. 558; State v. Alexander, 285 S.W. 985; State v. Preslar, 300 S.W. 690; Sec. 3984, R.S. 1929. (4) The testimony in the case justified a verdict of murder in the first degree. Sec. 3982, R.S. 1929; State v. Messino, supra; State v. Meyers, 99 Mo. 107; State v. Peak, 292 Mo. 249, 237 S.W. 466; State v. Adams, 316 Mo. 157, 289 S.W. 948; State v. Nasello, 30 S.W. (2d) 136.

LEEDY, J.

This case comes to us on appeal from the Circuit Court of the City of St. Louis where, at the June, 1932, term thereof, appellant was convicted of murder in the first degree, and the extreme penalty provided by law for that offense was assessed by the jury. Timely steps for review were taken, including an order permitting defendant to prosecute his appeal as a poor person at the expense of the State. It should be stated that counsel representing appellant in this court did not appear for him in the court below.

One of the assignments may be treated as challenging the sufficiency of the evidence, but otherwise the scope of our review of the matters complained of has been quite narrowly limited by the motion for new trial. We shall, therefore, set forth in some detail the facts of the case as disclosed by the 400-page record before us. Appellant, whose full name, as he testified, is Barney Eugene Copeland Ward, is a colored man, thirty-three years of age, a native of Tennessee, and who removed to St. Louis in 1916. The charge grew out of a holdup and robbery of the Avenue Furniture Company, 1107-1109 Franklin Avenue, in the city of St. Louis on Monday, June 1, 1931, wherein Jack Davis, one of the sons of the proprietor of that business, was killed.

The Avenue Furniture Company is located on the north side of Franklin Avenue between Eleventh and Twelfth Streets. The building extends between fifty and sixty feet east and west on Franklin, and, as was variously estimated, from eighty-five to one hundred and ten feet deep, north and south. There is a solid partition running north and south through the center of the store, dividing the space into what was called the east room or store, and the west room or store, each having approximately the same area. These rooms or stores were connected by means of two openings, each eight feet in length, referred to in the testimony as archways. One of the archways was near the front, or Franklin Avenue, entrance, and the other toward the rear of the building. An office which was described by the witnesses as resembling a "teller's cage" is located in the east room and in close proximity to the rear archway. It was built of composition board or wood, and was about nine feet high at the rear and was open in front. There is a stairway leading to the basement from the west storeroom, and the doorway thereto is on the west wall of that room, and some distance north of the south or front line of the building.

Jack Davis unlocked the front door, and opened up the store for business at eight o'clock, A.M., on the day mentioned, accompanied by Ernest Thomas, a colored boy, who was employed there as a porter and who also "helped on the truck." According to the testimony of Thomas, they entered the east storeroom, and Davis went back to the office, but he (Thomas) stopped at the front archway connecting the two storerooms where there was a radio, which he turned on. While engaged in that operation, his back was to the front door, and he was facing the back of the store. When stooping over the radio "Somebody put a gun in my back," as he expressed it, and told him to "Stick them up." When he started to comply with that direction, one of the voices said, "Put them down; somebody might be on the outside and see them and know something was going on." He then attempted to look up over his shoulder, and was told not to look around. When he straightened up, he was asked where his boss was, and he said "He is around here some place." He was then ordered "To get on back there," and was walked north down an aisle of furniture to the rear of the store, beyond the office, where he was caused to lie down on the floor, face down, behind an ice box. Thomas testified that after he had passed the office, he heard a voice say, "Hello, Jack" and that the deceased, Jack Davis, replied, "Hello, boy." At that time another voice said, "I came after you," and commanded Davis to "Open the safe." Davis said, "It's already open." Thomas then heard them moving around in the office, and a voice saying, "Don't you step on nothing." To which the reply was, "I am not trying to step on nothing." Thomas was unable to say definitely how many robbers there were, and he did not know whether "the people who were talking to him" were black or white "only by voice; it sounded like colored people." Just after the conversation last related, Thomas, who was prone on the floor in the back of the store, under guard, heard the front door slam. A second after the front door was heard to slam, he heard a voice say, "Old man, you get over in the bunch." Then he heard "a lick pass" and someone walked toward the office. By that time Thomas was told to get up off of the floor. It is appropriate to say at this time that the person who slammed the door was a plain clothes officer, Captain William Tierney who was in charge of the Ninth Police District, and who had come to the store for the purpose of arresting one Frank Sadler, a colored man employed there as chauffeur. He was wanted in connection with another robbery case. Thomas, Davis and Captain Tierney were lined up, and ordered to march to the basement. Thomas led the procession, followed next by Davis, and then by Captain Tierney. The robbers remained behind the line of march, and could not be seen by Thomas. They proceeded from the rear archway west through such archway into the west storeroom, thence south down an aisle of furniture toward a door leading to the basement. Thomas had reached that door, and turned on the light in the basement when he heard a noise "like somebody scuffling, and moving furniture around" behind him. He turned around, and found Jack Davis standing beside him. The scuffling noise came "from the back, about middleways of the store," but at that time Thomas did not see anyone back there in the aisle. Whereupon, Jack Davis turned or whirled around and ran back to where the scuffling was in progress. Thomas testified that a shot was then fired, and that Davis "made a jump, and jumped behind a chifforobe" with his two arms extended in front of him, but at that time he (Thomas) could not see either the robbers or Captain Tierney. Thomas himself stooped down behind a chifforobe, and he was then about four feet from the basement door, where he remained "until things got quiet." Thomas further testified that after hearing the shot fired, he heard "about four more shots after that," and that "about a second after the shooting" he saw a man clad in overalls run out of the front door, whom he identified as a colored man, named James Sanford, known as "Baby Boy." Thomas then "turned on the light to see what happened," and went back to where he had heard the scuffling, and heard somebody breathing. He moved some furniture, and found Jack Davis crouched alongside a chifforobe against the east wall of the west storeroom, with his head on his breast, unconscious. He then went to the office, and attempted to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT