State v. Davis

• Decision Date: 18 May 1928
• Docket Number: No. 28628.,28628.
• Citation: 6 S.W.2d 609
• Parties: THE STATE v. CARL B. DAVIS, Appellant.
• Court: Missouri Supreme Court

6 S.W.2d 609

THE STATE v. CARL B. DAVIS, Appellant.

No. 28628.

Supreme Court of Missouri, in Banc.

May 18, 1928.

Appeal from Jackson Circuit Court. — Hon. Fred W. Coon, Judge.

REVERSED AND DEFENDANT DISCHARGED.

McAllister, Humphrey & Pew and C. Fletcher Douglass for appellant.

(1) The court erred in overruling the defendant's separate motion to quash the indictment. (a) The indictment does not charge that any overt act was done in any attempt to murder. (b) The indictment in plain language states that no attempt to murder Frank was made. By its own language the indictment nullifies itself. (2) The trial court erred in overruling defendant's demurrer to the evidence. Defendant was not proven to be guilty of an attempt to murder. (a) The payment of money by Davis to Dill did not constitute an attempt, as the trial court so instructed the jury, and rightfully so, and that question is not now before the court. (b) Solicitation does not constitute an attempt. 13 R.C.L. 797; 1 Wharton, 279; 1 Brill, Encyc. Criminal Law, p. 298; 16 C.J. 112, 118; Clark on Criminal Law, pp. 185, 194; State v. Rider, 90 Mo. 54; Hicks v. Commonwealth, 86 Va. 223; State v. Baller, 26 W. Va. 90; People v. McDade, 29 Mich. 50; Robbs v. Mo. Pac. Ry. Co., 242 S.W. 155. (c) The employment of an agent to commit a crime is not an attempt. Ex parte Floyd, 95 Pac. 175. (d) Defendant had no control over the elements with which he proposed to commit murder. The testimony of the State is that Dill told Davis, "Leave all these details to me. I don't want any suggestions from an amateur. I have had experience in this matter and I will make my own plans." State v. Fraker, 148 Mo. 143. (e) The means employed by defendant were inadequate to commit murder. 1 Wharton, Crim. Law, sec. 177; 16 C.J. 116. (f) In the crime of attempt to murder, the guilty person must be at the scene of the crime. State v. Morney, 196 Mo. 43; State v. Ruckman, 253 Mo. 487. (g) There can be no attempt to murder without an assault. State v. Sullivan, 84 S.W. 109; State v. Priestly, 74 Mo. 24; State v. Harney, 101 Mo. 470; State v. Headley, 224 Mo. 177; State v. Hayden, 141 Mo. 311; State v. Scholl, 130 Mo. 396; State v. Priestly, 74 Mo. 24; State v. Owsley, 102 Mo. 678.

North T. Gentry, Attorney-General, and L. Cunningham, Assistant Attorney-General, for respondent.

(1) An attempt to commit a crime is an unfinished crime. It consists of the intent to commit the crime, and some act towards its commission, and where the design to commit the crime is clearly shown, as in this case, slight acts in the furtherance of such design will constitute an attempt to commit the crime. 16 C.J. 112-113; State v. Broyles, 295 S.W. (Mo.) 554. The indictment is sufficient in every respect. Sec. 3683, R.S. 1919; State v. Broyles, 295 S.W. (Mo.) 554; State v. Mitchell, 170 Mo. 633; State v. Scroggs, 170 Mo. 153; State v. Hayes, 78 Mo. 307; People v. DuVeau, 94 N.Y. Supp. 225; 1 C.J. 310, note 12. (2) The statute provides, "shall do any act towards the commission of such offense," not shall do such an act towards the commission of the offense as standing alone would be sufficient to produce the intended result. The evidence is overwhelming that defendant planned and intended to have Edmon Lourie killed, and that he and Alberdina Lourie did all of the acts charged in the indictment towards the accomplishment of that purpose, and that they failed because the instrument chosen, Joel L. Dill, broke the chain of acts which were intended to culminate in the murder. There can be no doubt as to the intent of the appellant to commit the crime. When the intent to commit the crime is supplemented by any act towards its commission, the offense of attempting to commit the crime is completed. State v. Hayes, 78 Mo. 307. The solicitation of another to commit the crime is an act towards its commission, and the fact that the person solicited had no intention of committing the crime does not exonerate the solicitor. State v. Hayes, 78 Mo. 307. The fact that appellant employed an officer who never intended to shoot and kill Edmon Lourie does not excuse or exonerate him. He made the attempt. State v. Hayes, 78 Mo. 307; State v. Mitchell, 170 Mo. 633; People v. DuVeau, 94 N.Y. Supp. 225. The rule is that when there is an intent to commit a crime and any act is done towards its commission, the attempt to commit the crime is complete, whether the crime fails or is prevented by extrinsic causes or because of some fact unknown to the defendant or some defect in the instrument chosen. State v. Mitchell, 170 Mo. 633. The statements made by appellant in connection with other facts proven are sufficient to establish the corpus delicti. State v. Flowers, 311 Mo. 510; State v. Sandoe, 289 S.W. (Mo.) 890; State v. Morro, 313 Mo. 98. Appellant's confession was admissible in evidence. State v. Johnson, 289 S.W. (Mo.) 847; State v. Young, 286 S.W. (Mo.) 29; State v. Midkiff, 278 S.W. (Mo.) 681; State v. Baker, 278 S.W. (Mo.) 987. The appellant testified as a witness in the case but did not deny guilt, and such fact is a circumstance showing guilt. In fact, the appellant admitted guilt but attempted to claim that he had abandoned the enterprise. State v. Ayres, 285 S.W. (Mo.) 997.

DAVIS, C.

Defendant was convicted on May 29, 1926, after a three days' trial of an attempt to commit murder in the first degree. The jury returned a verdict fixing his punishment at imprisonment in the penitentiary for a term of eight years, which the trial court reduced to five years, sentencing him to that term. Defendant duly appealed from the judgment entered accordingly.

On the hearing before us defendant accepted the facts as outlined by the Attorney-General in his brief as a true recital of the evidence adduced. The evidence submitted on the part of the State warrants the finding that defendant and Alberdina Lourie resided in Kansas City. They were seemingly infatuated with each other, planning and arranging to have Edmon Lourie, the husband of Alberdina, killed, so that they could obtain the insurance on his life, aggregating sixty thousand dollars, as well as cohabit. Edmon Lourie was absent from home the greater part of the time, returning at intervals of two or three weeks. In furtherance of their plan defendant, acting for himself and Alberdina, arranged to have one Earl Leverton obtain for them the services of an ex-convict to murder Edmon Lourie for hire. Leverton, instead of procuring the services of an ex-convict for that purpose, disclosed the plot to Joel L. Dill, a member of the Kansas City police force, who agreed to pose as an ex-convict to that end. Several meetings were had between defendant, Leverton and Dill, defendant stating that he and Alberdina were in love and desired Edmon Lourie killed. He agreed to pay for the execution of the plot. Defendant outlined his plan, offering Dill the sum of six hundred dollars, with the further agreement that Alberdina, who was to be with her husband at the time of the contemplated assault, would wear diamonds of the value of three thousand dollars. He further arranged for Alberdina and Dill to see each other, that each might recognize the other on sight. Defendant, Dill and Leverton during January and the early part of February, 1926, held prearranged conferences on the subject. Prior to February 11, 1926, defendant arranged for Dill to go to Chicago to kill Edmon Lourie there, defendant making and giving Dill a map or drawing showing where Lourie could be found, as well as two photographs of him. The arrangements contemplated that if Dill was unable to locate Lourie, Alberdina would go to Chicago to aid him. The trip to Chicago was to be made about February twelfth. However, Edmon Lourie telegraphed Alberdina that he would return to Kansas City on February 13, 1926, defendant thereupon notifying Leverton, who in turn communicated the fact to Dill. Defendant paid Dill six hundred dollars, advising him that Alberdina would persuade Edmon to accompany her to a place of amusement and that she planned to leave their home at eight o'clock P.M. on February 13, 1926. It was further planned that Alberdina was to carry the diamonds on her person, and that Dill was to shoot Lourie either as they left their home or as they returned, and that Alberdina was to be mussed up and the diamonds taken from her, so that it might appear the result of a robbery. Alberdina was to appear to faint, giving Dill time to make his escape. However, on the night of February 13, 1926, Dill, accompanied by three other police officers, proceeded about eight o'clock P.M. to the home of Edmon Lourie as arranged. Edmon and Alberdina Lourie were there found dressed and ready to leave, with the diamonds on her person. As Dill and the officers entered the room, she turned her face to the wall as planned. Two officers took charge of Edmon and Alberdina, Dill and the other officer going to the home of defendant, where they arrested him. The defendant had previously informed Dill that he would remain at home in order to have an alibi.

Upon his arrest defendant made and signed a confession in which he stated that he and Alberdina planned to have Edmon Lourie killed. In pursuance to the plan he met Dill, whom he assumed to be an ex-convict and the subject of hire for the purpose intended. The day before the contemplated murder he gave Dill two hundred dollars, and four hundred dollars the day the murder was to be consummated, together with a picture of Edmon Lourie. It was arranged that Dill was to go to Chicago to kill Lourie. Lourie, however, unexepectedly arranged to go home, notifying Alberdina of his intention by telegram. Thereupon Alberdina informed defendant of the fact, whereupon he notified Dill, resulting that the scene of the contemplated murder was changed to Lourie's home in Kansas City. The arrangements contemplated that Alberdina was to accompany Lourie that night to a picture show, and Dill was to stage a...