State v. Dowling

• Decision Date: 25 September 1941
• Docket Number: 37464
• Parties: The State v. Elmer Dowling, Appellant
• Court: Missouri Supreme Court

154 S.W.2d 749

348 Mo. 589

The State v. Elmer Dowling, Appellant

No. 37464

Supreme Court of Missouri

September 25, 1941

Appeal from Circuit Court of St. Louis County; Hon. John Witthaus, Judge.

Reversed and remanded.

Edw E. Hieby for appellant.

(1) There was no evidence to support the finding of the jury, and this court should examine the entire record in order to verify this assignment. State v. Brown, 209 Mo. 413 107 S.W. 1068. (2) It was highly improper for the State in its opening statement to suggest the implication of defendant in another case when no connection could be established. State v. Koch, 10 S.W.2d 928. (3) The admission of evidence that the prosecuting witness was a witness in another case with which the defendant had no connection was improper and prejudicial. State v. Koch, 10 S.W.2d 928. (4) The introduction in evidence of the record of the case of State of Missouri v. Londe, charge "Bombing," was erroneous. State v. Koch, 10 S.W.2d 928. (5) It was highly improper, prejudicial, and offensive to defendant's constitutional rights, to allow the introduction of evidence referring to defendant's silence when in custody, and to defendant's refusal to answer questions. State v. Murray, 126 Mo. 611; State v. Hogan, 252 S.W. 387; State v. Swisher, 186 Mo. 1, 84 S.W. 910; State v. Kissinger, 123 S.W.2d 81. (6) It was improper for the prosecutor to refer to another and dissimilar case (State of Missouri v. Londe) in his closing argument, when defendant had no connection with said case. State v. Koch, 10 S.W.2d 928.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) There was sufficient and substantial evidence to support the finding of the jury. State v. Caviness, 33 S.W.2d 940, 326 Mo. 992; State v. Busch, 119 S.W.2d 265, 342 Mo. 959; State v. Farmer, 111 S.W.2d 76; State v. Pease, 133 S.W.2d 409; State v. Spinks, 125 S.W.2d 60, 344 Mo. 105. (2) It was not improper for the State, in its opening statement to the jury, to set out that the prosecuting witness in the case at bar was a witness in the case of State of Missouri v. Londe. State v. Koch, 10 S.W.2d 928; State v. King, 119 S.W.2d 277, 342 Mo. 975; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066; State v. Garrison, 116 S.W.2d 23, 342 Mo. 453. (3) It was proper for the police officer to testify as to his conversation with the defendant at the time of the arrest and on the way to the police station. State v. Murphy, 133 S.W.2d 398; State v. Hardin, 21 S.W.2d 758, 324 Mo. 28; State v. Capotelli, 292 S.W. 42, 316 Mo. 256; State v. Widick, 292 S.W. 52; State v. Kissinger, 123 S.W.2d 81.

OPINION

Ellison, J.

Appellant was convicted of assault with intent to kill one Lewis Lee Baker with a pistol, in violation of Sec. 4408, R. S. 1939, Sec. 4014, Mo. Stat. Ann., p. 2817. The maximum punishment fixed by the statute is life imprisonment in the penitentiary. The duration of the punishment assessed by the jury was thirty years. On this appeal appellant's brief makes twenty-one assignments of error in the trial below complaining: that there was no substantial evidence to support the verdict; of the prosecuting attorney's opening statement and closing argument; of the admission of incompetent and prejudicial evidence; of improper conduct of court officers; of the giving of improper instructions; of the improper modification of instructions; and of the refusal of proper instructions.

First, on the sufficiency of the evidence. Baker was a negro and a witness for the State in another criminal case wherein Isadore Londe was charged with bombing a garment cleaning establishment in St. Louis. That case was before this court on appeal last fall. [345 Mo. 185, 132 S.W.2d 501.] It was set for trial in the Circuit Court of St. Louis on November 21, 1938. The assault upon Baker which is the basis of the charge in the instant case occurred three days before that on November 18, 1938. For a month or so before that Baker had been working on a cotton farm about fifteen miles beyond Sikeston, which is approximately 170 miles south of St. Louis. He was there with the knowledge of the St. Louis police and within a week or so before the trial date had received two letters from the Department advising him that he would be expected to appear at the trial.

About 2 P. M. on November 18, two white men drove up in a Chrysler sedan to the cotton farm where Baker was working. Baker swore one of them was the appellant, Dowling, and the other was a man who he said on cross-examination was named Selvaggi. They greeted him and told him they had come after him. Dowling said the Chief had sent them, and added "You know Londe's trial will be Monday." One of the men gave him $ 5 to pay his debts. Baker notified the people on the farm of his intended departure, got his laundry and clothes at Sikeston, and thence they proceeded toward St. Louis on Highway 61. The two men were in the front seat and Baker sat on the right side of the rear seat. They stopped three times on the trip: once to buy whiskey and cigarettes for the kidnappers and Baker. Further on, Dowling said: "When I get up here I got to call in and report to the chief." It got dark. On a side road they came to a grove and a tavern with a red electric sign on it that said "'Zimmer' something like that, 'Beer Tavern.'" The witness identified the place from photographs in evidence showing a sign "Duffy-Zimmer."

The automobile stopped there and Dowling got out and went into the tavern saying "I will go and see if they are in here." Witness Baker remained outside with the other man, but through a tavern window could see Dowling inside talking to someone. Dowling came out and upon being asked "Did you find him" answered "No, he is here at this house over here drunk." The other man said "Let's go over and wake him up." They drove on "a pretty good little piece from it -- on another road," to a small house with a porch on it. It was dark inside but Dowling had a flashlight. Baker demurred about going in but the little man pushed and urged him in. They stumbled through two or three rooms but couldn't find the man they were looking for. The other man said "Let's go upstairs," and as Baker turned around the other man shot him in the eye. Baker fell in the doorway and Dowling stepped over him. The other man said "you had better shoot him again." Dowling put his pistol against Baker's neck and fired. The two men tiptoed out of the house and Baker crawled outside and into some weeds.

Presently two cars returned to the house, one being like the car in which he had ridden up from Sikeston, and some men went into the house for a short time. One of them halloed "he is gone" and they left driving rapidly. Baker could see the electric sign on the tavern. He crawled to a white man's house and to a negro's home. He was repulsed both places, but finally found his way to the City Water Works. A man there called the Highway Patrol. He told all these men he had been in an automobile wreck. The patrolmen took him to the County Hospital. He was there for ninety-one days. Neither the white man, the negro, the City Water Works employees nor the State Highway troopers thus mentioned by Baker in his testimony were called as witnesses by either side. But it does appear that Capt. Murphy and Lt. Dirrane of the St. Louis Police Department were summoned to the County Hospital about 3 A. M. the next morning, November 19, and saw and interviewed Baker. The physician at the County Hospital testified Baker's wounds were such as might have been made by bullets. The one entering the eye was not recovered. The neck wounds apparently extended clear through; at least they corresponded in position on both sides. The wounds might have been fatal and would have produced shock but not necessarily unconsciousness.

Later that same morning Capt. Murphy, Lt. Dirrane and deputy sheriffs Erickson, Baker and Newbold of St. Louis County went to the vacant cottage where the alleged shooting occurred. They found a large spot of what appeared to be blood in one of the rooms with a .38 caliber bullet imbedded in the wooden floor about the middle of the spot. Two discharged .38 shells were found on the floor. There was a trail of similar stains leading from the large spot along the base of the walls and up to a height of four or five feet in some places. This trail passed through several rooms and emerged on a back porch and continued to the ground. Close by the large stain a board or boards of the floor had been raised and there was a hole in the ground underneath. The witnesses' estimates varied as to the dimensions of the hole but it was large and deep enough to permit the burial of a human body therein. Excavated dirt was on one side and there was a sealed sack of lime in a nearby closet. The dirt was somewhat dry but the witnesses refused to make a deduction from that fact as to whether the hole had or had not been recently dug. One witness said, "You see the hole was underneath the house, and was dry" -- in other words, might be dry for that reason. The lime in the sack was partly lumpy, from which the defense inferred it was old and had been there some time. About twenty feet from the door of the cabin in the soft ground there were automobile tire prints. Plaster paris impressions were taken of the tracks made by the front wheels, and later when Dowling's car was discovered, as hereinafter narrated, the tires were compared with these impressions. They were the same type of treads, both Goodrich, but the court refused to admit the opinion of the witness as to the degree of wear on the tires because he was not qualified as an expert.

This further corroborating evidence was introduced, circumstantial in nature. The purchase of a 1938...