State v. Daly

• Decision Date: 18 February 1908
• Citation: 109 S.W. 53,210 Mo. 664
• Parties: STATE v. DALY.
• Court: Missouri Supreme Court

109 S.W. 53

210 Mo. 664

STATE v. DALY.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

On Rehearing, March 31, 1908.

1. CRIMINAL LAW—EVIDENCE—CONDUCT AND STATEMENTS OF ACCUSED.

The movements, conduct, and voluntary statements of a person charged with a crime, made after the commission of the alleged offense, and which tend to connect him therewith, are always admissible against him, whether part of the res gestæ or not.

2. SAME — OPINION EVIDENCE — COMPETENCY AS EXPERT.

Where a physician showed himself to be very familiar with the subject under consideration, his evidence was properly received, although he protested against being denominated an expert.

3. SAME—DETERMINATION OF COMPETENCY.

The question whether a witness possesses the necessary qualifications to render him competent to testify as an expert is a preliminary one, to be passed on by the court after the examination of the witness.

4. SAME—WEIGHT OF TESTIMONY—QUESTION FOR JURY.

The weight of the testimony of an expert witness like that of any other is for the jury.

5. HOMICIDE—PRESUMPTIONS.

In a prosecution for murder, it was not necessary for the state to account for the

whereabouts of the viscera of deceased between the time of the post mortem examination and the time when it was removed from the body at the morgue by the undertaker, as in the absence of evidence it must be presumed that the body and viscera remained in the care of the keepers of the morgue where the autopsy was held and the post mortem examination made.

6. SAME — INSTRUCTIONS — PREMEDITATION— MALICE AFORETHOUGHT—"MURDER IN THE FIRST DEGREE."

Under Rev. St. 1899, § 1815 (Ann. St. 1906, p. 1258), providing that every homicide committed in perpetration or attempt to perpetrate robbery shall be deemed murder in the first degree, where poison was administered willfully and deliberately in the perpetration of a robbery and death ensued, malice aforethought and premeditation were not elements of the offense, and it was unnecessary for the court to define such terms in the instructions.

7. CRIMINAL LAW — INSTRUCTIONS — CORROBORATION — DEFINITION.

An instruction that the evidence of an accomplice when not corroborated by some person not implicated in the crime as to matters material to the issue—that is, matters connecting defendant with the crime—ought to be received with great caution was not objectionable as failing to define the word "corroboration," especially where the testimony of defendant's accomplice was thoroughly corroborated by other witnesses.

8. SAME — ADDITIONAL INSTRUCTIONS — REQUEST BY JUROR.

Any one or more of the jurors may, after submission of the cause, ask further instructions on any question involved in the case, and the further instruction is not objectionable on the ground that it was given at the request of one juror only.

9. HOMICIDE — INSTRUCTIONS — MEDICAL TREATMENT OF DECEASED.

In a prosecution for murder committed by administering poison, one of the jurors, after they had retired, sent to the court a note asking if a wrong diagnosis of the disease from which deceased was suffering and the treatment given him at the time and after he was received at the hospital, based on such wrong diagnosis, would affect the guilt or innocence of defendant, whereupon the court further instructed that if the jury found "beyond a reasonable doubt that defendant willfully and knowingly administered the poison" to deceased, as in the other instructions defined, in a quantity sufficient to have caused the death of deceased, then the fact that after the administration thereof he may not have received proper medicinal treatment, or that the fact of his having been thus poisoned was not discovered prior to his death, would not relieve defendant from liability. Held, that such instruction was a proper explanation of the matter inquired about.

10. SAME—APPEAL—HARMLESS ERROR—EXAMINATION OF EXPERT.

In a prosecution for murder, defendant cannot complain of error in striking matter from the hypothetical question put to his expert witness where the answer to such question was favorable to defendant, and to the effect that deceased did not die from poison as charged in the indictment, but that death was due to other causes.

On Rehearing.

11. HOMICIDE — INSTRUCTIONS—ISSUES.

Under Rev. St. 1899, § 1815 (Ann. St. 1906, p. 1258), providing that every homicide committed in the perpetration or attempt to perpetrate robbery shall be deemed murder in the first degree, where all the evidence tended to prove that the offense was committed by the administration of poison for the purpose of committing a robbery which was effected, and the death resulted therefrom, defendant could not object that two issues were submitted to the jury.

12. CRIMINAL LAW — INSTRUCTIONS — EVIDENCE.

It is not necessary for the court to instruct that hypothetical questions put to experts by counsel are not evidence of the truth of the matter stated in such questions.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Frank Daly alias A. C. Biles was convicted of murder in the first degree, and he appeals. Affirmed.

H. H. McCluer, John A. Gernez, and Thomas W. Ditty, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

On the 12th day of February, 1907, the grand jury of the city of St. Louis returned an indictment against the defendant, charging him with murder in the first degree. The indictment was in two counts, the first of which charged that the defendant gave to one Robert Harvey a large quantity of morphine mixed in a glass of beer, which said beer and morphine the said Harvey drank, and from the effects of which he died. The second count charged that the defendant gave to one Robert Harvey a large quantity of morphine mixed in a glass of beer, which said Harvey drank, and that the defendant then struck, beat, kicked, and wounded the said Harvey in the chest and body, inflicting certain mortal wounds and fractures of the ribs, and from the effects of said morphine and wounds so administered the said Harvey died. The defendant was put upon trial on March 22, 1907, and convicted of murder in the first degree under the first count of the indictment. Defendant's motions for a new trial and in arrest of judgment having been overruled, he appealed.

The evidence for the state tended to prove that the defendant was known by two names, Frank Daly and A. C. Biles, and that he resided in the city of St. Louis. The deceased was an engineer, and lived with his family at Osage City, Mo. For several days prior to the 9th day of November, 1906, the deceased and the defendant had been visiting a saloon known as the "Ohio saloon," on the southwest corner of Market and Seventh streets, in St. Louis, and had been drinking considerably. On the afternoon of said day, the deceased, the defendant, and one Joseph Brown were sitting at a table in said saloon, drinking beer, the deceased usually paying for the drinks. A dispute arose between the deceased and the waiter as to whether or not he, the deceased, had paid for three bottles of beer which he had ordered, and which had just been brought to the table by the waiter. Having been assured that the beer had not been paid for, the deceased got up from the table, pulled a roll of bills out of his pocket and handed the waiter a $5 bill to pay for the beer. While the deceased was doing this, the defendant and Brown were sitting at the table watching him, and the defendant, when he saw the bills, "nudged" Brown in a significant way, calling his attention to the money. The deceased returned to the table and sat down, but immediately got up and went to the toilet room. As soon as he had left the table, the defendant asked Brown for a dime, saying, "I know where I can make a piece of coin." Brown gave him a dime, and the defendant said, "I will go and get some morph." He left the saloon and came back in about five minutes. In the meantime the deceased had returned from the toilet room, and was sitting at the table. The deceased and Brown each poured out a glass of beer from the bottles ordered by the former. Daly, however, did not do so just then, but took his empty glass and held it under the table, and Brown noticed him making some peculiar motions with his hands as if trying to put something into the glass. Brown kept talking to the deceased, who did not appear to notice what Daly was doing. The defendant, while the others were talking, poured beer into this glass, and managed to exchange his glass for that of the deceased, who had not yet drunk his glass of beer, and whose attention was attracted in a direction away from the table by Brown. The defendant then said, "Here goes," and all three drank. After drinking, the defendant poured the remainder of the contents of his bottle and that of the deceased into one glass, passed it over to the deceased, and said, "Drink it up," and the deceased did so. Some more beer was drunk, and all laughed and sang, but the deceased seemed "funnier" than previously and his throat soon got weak. The three men left the saloon, walked south on Seventh street to Clark avenue and turned into an alley, where the deceased, who appeared to be much muddled, sat or fell down. He got up, and again fell down. His companions took hold of his arms, raised him up and walked west on Clark avenue with him as far as Eighth street, where the deceased sat down in a doorway. He appeared to be in a stupor, and acted as if under the influence of an opiate, and had not spoken from the time he left the saloon. The defendant and Brown assisted him to his feet, and the three then went south on Eighth street as far as Spruce street, where there was a vacant lot, into which they went, and there the deceased sat down, his head bent forward. Daly and Brown went out to the street to see if anybody was approaching, and then returned to where deceased was sitting. The defendant then grasped the deceased around...