State v. Gillman

• Citation: 44 S.W.2d 146,329 Mo. 306
• Decision Date: 01 December 1931
• Docket Number: 31372
• Parties: The State v. Claude Gillman, Appellant
• Court: United States State Supreme Court of Missouri

44 S.W.2d 146

329 Mo. 306

The State v. Claude Gillman, Appellant

No. 31372

Supreme Court of Missouri

December 1, 1931

Appeal from St. Louis County Circuit Court; Hon. Jerry Mulloy, Judge.

Affirmed.

Howard Sidener and Verne Lacy for appellant.

(1) The evidence was insufficient to support the verdict. (a) The demurrer filed by the defendant at the close of the State's case should have been sustained and the jury instructed to discharge the defendant. The court erred in overruling the demurrer. The evidence introduced in behalf of the State was not sufficient to sustain the verdict. State v. Buckley, 274 S.W. 74; State v Hollis, 284 Mo. 627; State v. Nagle, 32 S.W.2d 596; State v. Francis, 199 Mo. 671; State v Gordon, 199 Mo. 561; State v. Scott, 177 Mo 665; State v. Ruckman, 253 Mo. 487; State v. Tracey, 284 Mo. 619; State v. Archer, 6 S.W.2d 912; State v. Matticker, 22 S.W.2d 647; State v. Prichett, 39 S.W.2d 794. (b) The State failed to introduce any evidence which connected the defendant with the commission of the offense charged in the indictment. Its failure to so connect the defendant should have caused the court to discharge him upon demurrer by a directed verdict. State v. Nave, 283 Mo. 35. (c) The State failed to overcome the presumption of innocence of the defendant that existed in favor of the defendant throughout the entire trial. State v. Scott, 177 Mo. 665; State v. Capps, 311 Mo. 697; State v. Francis, 199 Mo. 671; State v. Buckley, 274 Mo. 74. (d) Evidence which raises a strong suspicion or probability of the defendant's guilt is insufficient to sustain a verdict of conviction. State v. Scott, 177 Mo. 665; State v. Gordon, 199 Mo. 561; State v. Murphy, 324 Mo. 854; State v. Pritchett, 39 S.W.2d 794; State v. Perkins, 18 S.W.2d 6; State v. Matticker, 22 S.W.2d 647; State v. Archer, 6 S.W.2d 912; State v. Capps, 311 Mo. 683; State v. Hollis, 284 Mo. 627. (e) Evidence to sustain a conviction must be clear and conclusive and should exclude every reasonable doubt of defendant's innocence. State v. Duncan, 317 Mo. 451; State v. Buckley, 274 S.W. (Mo. Sup.) 74, and all cases cited under (a). (f) If all the evidence is admitted to be true in the record, it is not inconsistent with defendant's innocence. State v. Tracey, 284 Mo. 624; State v. Capps, 311 Mo. 699; State v. Ruckman, 253 Mo. 501. (g) The proof on the part of the State failed to show any agency of the defendant with the kidnaping or confinement of Hoffman. It was necessary to connect the defendant with the commission of the crime in order to convict him. (h) The corpus delicti as to the defendant was not proven. Substantial evidence of the criminal act and the defendant's agency must be shown. This, the evidence failed to do. State v. Bass, 251 Mo. 107; State v. Miller, 234 Mo. 558; State v. Crabtree, 174 Mo. 650; State v. Dickson, 78 Mo. 447; State v. Adkins, 222 S.W. 435; State v. Ruckman, 253 Mo. 500; State v. Schyhart, 199 S.W. 211; State v. Hollis, 284 Mo. 627. (i) The evidence was insufficient to justify the submission of the case to the jury. The proven circumstances are insufficient without basing an inference on an inference, which is not permissible. United States v. Ross, 92 U.S. 281; 16 C. J. 765; Vernon v. United States, 146 F. 121; State v. Lackland, 136 Mo. 26; State v. Murphy, 324 Mo. 854; State v. Matticker, 22 S.W.2d 647; State v. Hollis, 284 Mo. 253; State v. Capps, 311 Mo. 683; State v. Ross, 300 S.W. (Mo. Sup.) 717; State v. Kurtz, 295 S.W. (Mo. Sup.) 747; State v. Zeikle, 296 S.W. (Mo. Sup.) 117; State v. Knight, 296 S.W. (Mo. Sup.) 367. (j) It was reversible error for the court to admit in evidence the three .45 calibre automatic pistols, for the reason that wherever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved and not themselves be presumed. State v. Lackland, 136 Mo. 26; Starkie on Evidence (10 Am. Ed.) 80; Douglass v. Mitchell's Ex'r, 35 Pa. St. 440; United States v. Ross, 92 U.S. 281; McAleer v. McMurray, 58 Pa. St. 126. (k) Presumptions must rest upon established facts and not upon other presumptions. Richmond v. Aiken, 25 Vt. 324; Pennington v. Yell, 11 Ark. 212; O'Gara v. Eisenlohr, 38 N.Y. 296; Railway Co. v. Henrice, 92 Pa. St. 431; Yarnell v. Railway Co., 113 Mo. 570. (2) The court's failure to instruct and require the jury to find that a conspiracy existed was fatal error. It is only when a conspiracy has been established that the acts of one are the acts of all. In so failing to instruct the jury that a conspiracy must be shown, the court failed to instruct on all the law necessary for the jury's information. Sec. 3681, R. S. 1929; State v. Walker, 98 Mo. 95; State v. Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32; State v. Kennedy, 177 Mo. 131; State v. Roberts, 201 Mo. 702; State v. Thompson, 293 Mo. 116; State v. Gentry, 8 S.W.2d 20.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) The evidence, while circumstantial, is sufficiently substantial to support the verdict of the jury. Where such is the case this court will not disturb the lower court's judgment. State v. Mann, 217 S.W. 67. An inference that an established fact must have existed in the immediate past may be drawn from the circumstances and facts of the present. State v. Janes, 318 Mo. 529. The evidence shows that Hoffman was kidnaped by three men in the city of St. Louis; that he was in the custody of these men for a period of three nights. On the third night he was found in the basement of a house located in St. Louis County being guarded by defendant and others. From this evidence and other facts in the record it is a legitimate inference that defendant was one of the three men who forcibly abducted and kidnaped Hoffman. 22 C. J. 92. (2) The trial court committed no error in admitting in evidence the three pistols which were found at the place of the confinement of Hoffman. The pistols were within the res gestae of the crime and were competent for the purpose of showing that Hoffman was being secreted and confined against his will.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Defendant, Claude Gillman, together with John Pepe and John Sinovich, was indicted by the grand jury of St Louis County on the charge of kidnaping Jacob Hoffman. Pepe and Sinovich made application for and were granted a severance. Defendant Gillman was tried May 19, 1930, was found guilty, and was sentenced to a term of ten years in the penitentiary. His motion for a new trial having been overruled, defendant appealed to this court. At the close of the State's case, defendant offered a demurrer, which the court refused to give. Defendant then rested his case. The main question for decision is the sufficiency of the evidence offered by the State.

Jacob Hoffman, a resident of the city of St. Louis and having a cigar store at 112 North Broadway in that city, had an office on the floor above the store. He testified that he was in his office on the evening of February 18, 1930, when three men, masked with handkerchiefs over their lower faces and armed with pistols, entered and robbed him of $ 200. They led him down stairs to the street and placed him in an automobile in which there was a fourth man at the wheel. His three captors also got into the car, which was driven about the streets of St. Louis at high speed and at last came to a stop at a point which Hoffman sensed was in the southern part of St. Louis. With his eyes blinded by the taped glasses he was led into a building where "they" kept him the first night of his captivity, and until the next night. Then he was driven to another house into which his captors led him on the second night. And there he remained until the third night, his eyes meantime having been blindfolded. He was taken to still another place on the third night over a very hard road, and, on the way, one of his captors said the chances were that he (Hoffman) would be there for a week. He was kept for a time in a shed or a cottage, it seemed to him, with one of the men in charge of him. The others left but returned after an absence of five or ten minutes and gave orders that a bed, which was in the shed, be moved into a cellar. This was done and Hoffman, still blindfolded, was led into the cellar of a house, where he was found the next morning, the fourth day of his captivity, by the sheriff of St. Louis County and by police officers of the city of St. Louis acting in consort.

The cellar, as described by the officers, was beneath the brick house of Joseph Sinovich, 4025 Bayless Avenue, between Lemay Ferry Road and the Kirkwood branch of the Missouri Pacific Railway, in the southern part of St. Louis County. The house was fifteen or twenty feet above the highway and hidden by trees. A grove, used for amusements, was west of the house and a ball park was east of it. The cellar was separated into two parts by a solid wall. The part into which Hoffman was led was subdivided into two small rooms by a partition with a doorless communicating passageway. Stairs covered by the familiar type of folding cellar doors led down from the yard of the Sinovich premises to an area-way from which conventional wall doors admitted to the cellar spaces. A porch above the area-way together with the folded doors on the yard level kept the cellar rooms in darkness. In the part of the cellar where Hoffman was kept there was one small window which, when the officers came, was obscured by heavy dark paper. An electric wire with a brown globe giving little or no light, was also in the cellar. Of the two rooms into which was subdivided the half of the cellar in which Hoffman was captive, one was ten by twelve feet and was entered by a door from the area-way. The...