State v. Foster

• Decision Date: 19 January 1897
• Parties: The State v. Foster, Appellant
• Court: Missouri Supreme Court

38 S.W. 721

136 Mo. 653

The State v. Foster, Appellant

Supreme Court of Missouri, Second Division

January 19, 1897

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

R. F Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.

(1) The verdict in this case is supported and warranted by the law and the evidence. The evidence shows that the killing was murder in the first degree; that it was perpetrated in the consummation of a prearranged conspiracy to rob, and under the instructions given by the court, the jury could do nothing but return a verdict of murder in the first degree. (2) There was no testimony upon which to base an instruction for murder in the second degree. The defendant did not complain that the court had failed to instruct the jury either upon all the law of the case or as to this degree, and having saved no exceptions to the failure of the court so to do, he is too late in his motion for new trial and will not be heard to complain in this court. State v Cantlin, 118 Mo. 111; State v. Paxton, 126 Mo. 500. (3) No reversible error was committed in the admission of testimony to which defendant objected. (4) The state had a right to show that defendant attempted to flee or make his escape.

OPINION

Sherwood, J.

The defendant, a negro, with two others, Germans, Peter Schmidt and John Schmidt, was indicted at the January term, 1896, of the St. Louis county circuit court for murdering Bertram A. Atwater at Webster Groves, in that county, by shooting him to death with a pistol. This crime was committed in an attempt to rob Atwater, on the twenty-third day of January, 1896. At the same term, the accused parties entered their plea of not guilty, a severance was granted, and defendant being tried was found guilty of murder in the first degree, and sentenced to be hanged.

It appeared in evidence that the indicted parties formed a conspiracy to rob Atwater, and, in trying to effect such robbery, Atwater was shot and killed, defendant joining John Schmidt in firing on the deceased. Defendant in a written statement signed by him, admitted his guilt to Desmond, chief of detectives.

It is unnecessary to relate the facts in this case any further, as they will be found fully stated in an opinion by Gantt, P. J., delivered at the present term, in the case of State v. Peter Schmidt, ante, p. 644.

The indictment charges that the murder was committed in the attempt to rob Atwater, but such statement was wholly unnecessary, as the indictment may be drawn in common form, and then when proof is made that the homicide was done in the perpetration of a robbery, this proof being made is tantamount to that premeditation, deliberation, etc., which otherwise are necessary to be proven, in order to constitute murder in the first degree. State v. Hopkirk, 84 Mo. 278; State v. Meyers, 99 Mo. 107, 12 S.W. 516; State v. Donnelly, 130 Mo. 642, 32 S.W. 1124.

But the unnecessary statement aforesaid did not vitiate the indictment; enough was stated outside of the matter in reference to the robbery, which made the indictment good, but we do not approve of the unnecessary averment.

Three grounds are urged for a new trial: "First, that the verdict is contrary to the law and the evidence. Second, that the court erred in not...