State v. Fields

• Decision Date: 23 May 1911
• Citation: 234 Mo. 615,138 S.W. 518
• Parties: STATE v. FIELDS.
• Court: Missouri Supreme Court

138 S.W. 518

234 Mo. 615

STATE v. FIELDS.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

1. CRIMINAL LAW (§ 1064)—APPEAL—PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW.

Where exceptions to the overruling of challenges to jurors were not preserved in the motion for new trial, they cannot be considered on appeal.

2. JURY (§ 129)—CHALLENGES FOR CAUSE— SPECIFIC GROUNDS.

A challenge of a juror for cause is not sufficient, unless the specific ground be stated.

3. CRIMINAL LAW (§ 427)—EVIDENCE—DECLARATIONS OF CONSPIRATORS.

The order of proof of a conspiracy with reference to the introduction in evidence of the acts and declarations of an alleged co-conspirator rests largely in the discretion of the trial judge.

4. CRIMINAL LAW (§ 427)—EVIDENCE—DECLARATIONS OF CONSPIRATORS.

For the acts and declarations of an alleged co-conspirator to be admissible against one accused of crime, the existence of a conspiracy between the accused and the co-conspirator must be shown.

5. CRIMINAL LAW (§ 427)—EVIDENCE—DECLARATIONS OF CONSPIRATORS.

The evidence showing a conspiracy, necessary to render the declarations of a co-conspirator admissible in evidence, need not be direct, but may be inferred from the facts and circumstances in evidence.

6. CRIMINAL LAW (§ 427)—EVIDENCE—DECLARATIONS OF CONSPIRATORS.

In a prosecution for murder, evidence held sufficient to show a conspiracy between defendant and an alleged co-conspirator, so as to render the declarations and acts of the co-conspirator admissible against defendant.

7. HOMICIDE (§ 340)—MURDER—STATUTES.

Under Rev. St. 1909, § 4903, providing that any person found guilty of murder in the second degree shall be punished according to the verdict of the jury, though the evidence shows him guilty of a higher degree, and section 5115, providing that no judgment shall be affected because the evidence tends to show defendant to be guilty of a higher degree of the offense than that of which he is convicted, a defendant cannot complain of an instruction on murder in the second degree, because the evidence showed only murder in the first degree.

8. CRIMINAL LAW (§ 721)—TRIAL—ARGUMENT BY COUNSEL.

The remark by the prosecuting attorney in his closing argument that the state proved certain facts by witnesses whose testimony had not been controverted by the defendant's witnesses was not erroneous, as a comment on the fact that defendant had not taken the stand.

9. CRIMINAL LAW (§ 656)—TRIAL—REMARKS BY COURT.

Where defendant objected to part of the argument of the prosecuting attorney as a comment on his failure to take the stand, an admonition by the court that the prosecuting attorney had no right to comment on that fact was not error.

10. CRIMINAL LAW (§ 1137)—APPEAL—RIGHT TO ALLEGE ERROR.

Where a defendant objected to part of the argument of the prosecuting attorney as a comment on his failure to take the stand, and the court admonished the prosecuting attorney that he could not remark on that fact, the error, if any, was invited by defendant, and hence was not cause for reversal, under the direct provisions of Rev. St. 1909, § 5115.

11. HOMICIDE (§ 254)—EVIDENCE—SUFFICIENCY.

In a prosecution for murder, evidence held sufficient to support a verdict of murder in the second degree.

12. CRIMINAL LAW (§ 741)—TRIAL—PROVINCE OF JURY.

When the evidence tends to prove the offense charged, the weight of the evidence is for the jury, and not for the trial court.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Carlos Fields was convicted of murder in the second degree, and appeals. Affirmed.

Ward & Collins, for appellant. Elliott W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

KENNISH, P. J.

On January 14, 1909, an information was filed in the office of the clerk of the circuit court of Pemiscot county, charging appellant, Carlos Fields, and his brother, Ray Fields, jointly, with the crime of murder in the first degree, for having killed one Sam Edmondson. A severance having been granted to appellant, he was tried, convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for 35 years. He appealed to this court.

The evidence for the state tended to show the following facts: Ray Fields and Carlos Fields are negroes, as was also the deceased. On the evening of December 31, 1908, a "watch party" was held at negro churches in Caruthersville, one known as the Baptist Church and the other as the African Methodist Church. On the evening of the homicide, the defendant, Carlos Fields, who was a porter in a saloon, asked permission to take a revolver from the saloon, but was refused permission to take it. Later in the evening he and two others went to the "watch party" at the Baptist Church. Ray Fields arrived at the Baptist Church about the same time. A few minutes later the defendant asked one of the men who accompanied him to the church to go with them (Ray and Carlos Fields) to the Methodist Church, remarking, "Hell's going on there." The witness declined to go, and defendant, Ray Fields and another man started to the Methodist Church. On the way there was some conversation about a girl named Corrine Branham and about Sam Edmondson, the deceased, being "sore" at Ray Fields on account of Corrine. The three entered the church at about the same time as the deceased. Defendant walked down to the stove and remarked to a small boy that he had better get out of the house, as there was going to be trouble there. After making this remark, he was seen "edging" his way along the wall toward the door with a revolver in his hand, and his eyes upon the deceased, who was standing a few feet away at a refreshment booth. A woman who saw the revolver called attention to defendant and exclaimed that he had a gun. At almost the same instant, Ray Fields shot the deceased, instantly killing him. The deceased had made no demonstration of hostility to either of the brothers. The two left the building, and in a short time the defendant returned, walked to where the dead man lay, and brandishing a revolver inquired with oaths: "Who don't like it?" "What's the matter with you?" "Who has anything to do with it?" The defendant then left the church again. Early the next morning he told one of the witnesses where he had thrown the revolver, asked him to go and find it, return it to the saloon, and say nothing about it. This witness found the revolver, and upon a written order from the defendant delivered it to the bartender at the saloon where the defendant was employed. The revolver had been left at the saloon as a pledge for a debt, and was the same revolver the defendant had asked the bartender for the night of the homicide, when he was told he could not have it. The defendant did not go upon the stand, and but one witness testified in his behalf. Portions of the testimony given at the preliminary examination before the justice of the peace, tending to contradict the testimony given at the trial by the state's witnesses, were introduced and read in evidence by the defendant.

1. Error is assigned to the action of the court in overruling the defendant's challenges to Jurors Little, Stevens, and Ellison on their voir dire examination. The record fails to show that either of these jurors was not qualified to serve, and in addition it is disclosed that as to Jurors Stevens and Ellison no objection to their qualification is preserved in the motion for a new trial. For that reason the question is not now before the court for review. As to Juror Little, the defendant's challenge was as follows: "We challenge the juror for cause." It has been decided by this court that a general challenge for cause, such as made to Juror Little, is not sufficient. The specific ground of the challenge must be stated, in order that the trial court may have its attention called to the reason for which it is asked to disqualify the juror. State v. Bobbitt, 215 Mo. 10, 114 S. W. 511; State v. Taylor, 134 Mo. 109, 35 S. W. 92; State v. Myers, 198 Mo. 225, 94 S. W. 242.

2. Many objections were interposed by the defendant to the...