State v. Crow

• Decision Date: 11 June 1940
• Docket Number: 36895
• Citation: 141 S.W.2d 66,346 Mo. 306
• Parties: The State v. Cleve Crow, Appellant
• Court: Missouri Supreme Court

141 S.W.2d 66

346 Mo. 306

The State v. Cleve Crow, Appellant

No. 36895

Supreme Court of Missouri

June 11, 1940

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

Ward & Reeves for appellant.

(1) Our principal contention in this case is that the evidence was wholly insufficient to support the verdict of the jury and the court, therefore, erred in refusing to give the jury defendant's peremptory instruction to find the defendant not guilty, which instruction is designated as B. (a) There was not sufficient evidence in this case to establish the corpus delicti, that is, there was no substantial proof that N. C. Teroy died from a wound unlawfully inflicted by a club by the principal, Robert Privett. The evidence in this case was wholly circumstantial as declared in an instruction to the jury. These circumstances are certainly as consistent with the theory that Teroy was fatally injured by Luther Gillam's automobile, as with the theory that he was fatally injured by blows administered by Privett. The verdict was, therefore, necessarily based upon conjecture and suspicion and such result under the testimony could not have been reached by excluding the reasonable hypothesis that the automobile inflicted the fatal injury. State v Bass, 251 Mo. 107; State v. Singleton, 294 Mo 346; State v. Francis, 199 Mo. 671; State v. Joy, 285 S.W. 489; State v. Frisby, 204 S.W. 3. (b) The evidence is that appellant Crow and deceased Teroy engaged in a free for all fight, and that after they were separated Teroy ran some forty or fifty yards into the dark, and that he was followed by Robert Privett, who was armed with a club, and that the defendant Crow with a crowd of others, estimated by the witnesses from six to twenty, followed to see the fight. It is the theory of the State that Privett fatally wounded Teroy with the club and that appellant Crow aided and assisted him in that assault. There was no direct evidence that Privett struck Teroy with the club. There was no evidence whatever that Crow participated in this alleged assault in any manner whatever, either by act, word or sign, but that he, like the balance of the crowd, followed for the purpose of seeing the fight, which appeared to be imminent between Privett and Teroy. To convict Crow as an aider and abettor the jury was first required to find from circumstantial evidence that Privett fatally assaulted Teroy, and further from the mere circumstance of presence or near presence, that Crow aided and abetted Privett. In other words, in order to convict Crow the jury had to infer from the circumstances that Privett administered a fatal blow and then further infer that Crow aided and abetted Privett. In other words, base an inference upon an inference or presumption upon a presumption, which cannot be done. There was no evidence that Crow had any knowledge of the intention or purpose of Privett to commit a crime. There was, therefore, no sufficient evidence upon which the jury could legally convict the defendant Crow as an aider and abettor. State v. Porter, 276 Mo. 387; State v. Odbur and Shade, 317 Mo. 372; State v. Bell, 316 Mo. 185; State v. Pippin, 327 Mo. 299; State v. Larkin and Harris, 250 Mo. 218; State v. May, 142 Mo. 135; State v. Privett, 130 S.W.2d 575. (c) It is true that several witnesses attribute to Crow more or less violent and intemperate statements and threats of and concerning Teroy, but all of which occurred from ten to twenty minutes after the alleged felonious assault by Privett. These statements made after the commission of the alleged crime by Privett did not contain or embrace therein any admission or participation in the previous alleged assault by Privett. Such expression of enmity after the alleged fatal encounter is wholly insufficient to support a charge of aiding and abetting. State v. Odbur and Shade, 317 Mo. 372; State v. Larkin and Harris, 250 Mo. 218; State v. Singleton, 294 Mo. 346. (2) The court erred in permitting the State to prove by witness Clarance Ballard that he (Robert Privett) said, "They would not be worried with him any more," and further, that Privett said, "We would not be bothered with the son of a bitch any more." The above statements attributed to Robert Privett were made, as estimated by the witness, from five to fifteen minutes after the trouble was over and after Teroy had fled from the scene and after Privett had come back to the front of the building some forty to fifty yards from the place where it is claimed he had struck Teroy. The statements or admissions were no part of the res gestae and were incompetent evidence against appellant. State v. Hayes, 249 S.W. 49; State v. Frisby, 204 S.W. 3; State v. Condit, 307 Mo. 393; State v. Kennedy, 177 Mo. 98.

Roy McKittrick, Attorney General, and Tyre W. Burton, Assistant Attorney General for respondent.

(1) The information is sufficient in form and substance and apprises the appellant of the crime charged. Secs. 3381, 3553, 3982, 4446, R. S. 1929; State v. Frazier, 98 S.W.2d 711, 339 Mo. 966; State v. Privett, 130 S.W.2d 579; State v. Peters, 123 S.W.2d 34. (2) The verdict is in proper form and is responsive to the issues. Sec. 3997, R. S. 1929; State v. Morgan, 56 S.W.2d 387. (3) There was sufficient substantial evidence to support the verdict. State v. Privett, 130 S.W.2d 579; State v. Smith, 339 Mo. 952, 98 S.W.2d 658; State v. Frazier, 98 S.W.2d 713, 339 Mo. 966; State v. Mitchell, 86 S.W.2d 186; State v. Cohen, 100 S.W. 547. (4) The court did not err in refusing to give appellant's Instructions D and E. State v. Wilkins, 100 S.W.2d 896; State v. Decerk, 340 Mo. 972, 104 S.W.2d 311. (5) The court did not err in including in instructions 3, 5, and 7 the law as it applies to one aiding and abetting in the commission of a crime. State v. Robinett, 279 S.W. 699; State v. Nasello, 325 Mo. 442, 30 S.W.2d 137. (6) The court did not err in giving the manslaughter Instruction 7. State v. Murphy, 111 S.W.2d 137. (7) The court did not err in giving an instruction on circumstantial evidence. State v. Richardson, 36 S.W.2d 946; State v. Nasello, 325 Mo. 442, 30 S.W.2d 139; State v. Blankenship, 330 Mo. 792, 50 S.W.2d 1024. (8) Instructions should be considered together. State v. Nasello, 325 Mo. 442, 30 S.W.2d 139. (9) The court did not err in giving instruction defining "aider" and "abettor." 16 C. J., p. 972, sec. 2370. (10) The court did not err in refusing to give erroneous request for instructions. State v. Park, 16 S.W.2d 33, 322 Mo. 69; State v. Gilden, 289 S.W. 822, 316 Mo. 252. (11) The acts and declarations of each person, while participating in a crime, are admissible against all others committing the crime. State v. Peters, 123 S.W.2d 38. (12) The court did not err in permitting Dr. Shirey to testify about the injuries on Teroy's head. Ambruster v. Levitt Realty & Inv. Co., 341 Mo. 364, 107 S.W.2d 80. (13) Motions for new trial do not prove themselves. State v. Short, 87 S.W.2d 1031, 337 Mo. 1061; State v. Hohensee, 62 S.W.2d 439, 333 Mo. 161. (14) The court did not err in excluding hearsay testimony. State ex rel. Met. Life Ins. Co. v. Shain, 121 S.W.2d 792; Sconce v. Jones, 121 S.W.2d 781. (15) Remarks made by the court in ruling on testimony not prejudicial. State v. Raffie, 60 S.W.2d 671.

OPINION

Cooley, C.

Defendant Crow and three others, Robert Privett, Amuel Ring and Arnold Tucker were jointly charged by information filed in the Circuit Court of Pemiscot County with murder in the first degree for the killing of one N. C. Teroy. Severances were granted and in the instant case Crow was tried alone. Privett had been tried previously and convicted of murder. On appeal we reversed and remanded that case for error in the exclusion of certain evidence, State v. Privett, 344 Mo. 1020, 130 S.W.2d 575. Ring also had been tried and was convicted of manslaughter. That case is State v. Ring, No. 36776, 346 Mo. 303, 141 S.W.2d 57. The Ring case appears on our present docket along with the instant case. The opinion has been written in the Ring case, affirming the judgment below, and, if adopted by the court, will go down with the opinion in the instant case. In the case now before us the defendant was convicted of manslaughter, sentenced to two years' imprisonment and has appealed. In this case, as in the Ring case, it seems to be conceded that the fatal assault, if any, was committed by Privett and that defendant is guilty, if at all, as an accessory. Also, as in the Ring case, it is contended that the evidence is insufficient to show that Teroy's death resulted from wounds inflicted by Privett and, further, that in any event it is insufficient to show that defendant had criminal connection with the offense, and that his demurrer to the evidence should have been sustained.

The assault upon Teroy occurred on the night of May 22, 1938, soon after midnight, at a place called Skinner's Night Club, located on the south side of paved State Highway No. 84, about seven miles west of Hayti, Missouri, in Pemiscot County. The clubhouse faces north toward the highway. Back of it -- southward -- there was a small building, referred to as a cabin, and a few feet south of the cabin there was a barbed wire fence, running generally east and west. South of the fence was a woods pasture. The fence was forty or fifty yards south of the clubhouse.

On the night in question defendant Crow and Teroy got into a fist fight on the grounds near the clubhouse. The State's evidence tends to show that Ring and Privett called out encouragement and offers of assistance, if needed, to Crow during that fight. Crow and Teroy were separated with no substantial damage done to either. There is evidence that Crow had suffered a small wound on his head or face (which was bleeding), either from a...