State v. Golden

• Citation: 183 S.W.2d 109,353 Mo. 585
• Decision Date: 05 September 1944
• Docket Number: 38813
• Parties: State v. Orville Golden, Appellant
• Court: United States State Supreme Court of Missouri

183 S.W.2d 109

353 Mo. 585

State v. Orville Golden, Appellant

No. 38813

Supreme Court of Missouri

September 5, 1944

Rehearing Denied or Motion to Transfer to Banc Overruled November 13, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Morris A. Shenker and Louis E. Zuckerman for appellant.

(1) The court erred in overruling defendant's motion to strike out parts of the indictment, and in overruling the demurrer to the indictment and the motion to quash, because the indictment is vague, confusing, ambiguous and misleading and does not clearly inform the defendant of the charge against him. State v. Hill, 352 Mo. 895, 179 S.W.2d 712; State v. Krebs, 8 S.W.2d 196; State v Meysenberg, 17 S.W. l.c. 232; State v. Reakey, 62 Mo. 40; State v. Stegner, 207 S.W. 826, 276 Mo 427; State v. Adams, 274 S.W. 21, 308 Mo. 624; State v. Sherrill, 278 S.W. 992; State v Griffith, 279 S.W. 135, 311 Mo. 630. (2) The indictment is duplicitous for the reason that it charges in one and the same count the distinct crimes of embezzlement and grand larceny. State v. Flynn, 167 S.W. 516, 258 Mo. 211; State v. Brown, 296 S.W. 125, 317 Mo. 361; State v. Kellman, 123 S.W.2d 70, 343 Mo. 762; State v. Flint, 62 Mo. 939; State v. Burks, 60 S.W. 1100, 159 Mo. 568. (3) The court erred in overruling defendant's motion for a continuance on May 11, 1942, on account of the public excitement, bias and prejudice then existing in the public mind, occasioned by newspaper articles and editorials, grand jury investigations, investigations by the circuit judges, the circuit attorney, the circuit clerk, the jury commissioners, the board of jury supervisors, and the Governmental Research Institute, a lay agency appointed by the circuit judges to investigate the Jenkins jury panel and the entire jury system, so that appellant could not have a fair and impartial trial at that time. Art. 2, Sec. 22, Mo. Constitution; 14th Amend., U.S. Constitution; 22 C.J.S., sec. 497; Seay v. State, 93 So. 403, 207 Ala. 453; McDaniel v. Commonwealth, 205 S.W. 915, 181 Ky. 766; Fountain v. State, 107 A. 554, 135 Md. 77, 5 A.L.R. 908; State v. Rasor, 167 S.E. 396, 168 S.C. 221, 66 A.L.R. 1237; Mickle v. State, 213 S.W. 665, 85 Tex. Cr. 560; 16 C.J., p. 484, note 25; 22 C.J.S., sec. 482, pp. 741, 742; State v. Taylor, 8 S.W.2d 29; 16 C.J., p. 484, sec. 876, note 31 (2), p. 485, p. 482, note 24 (c); State v. Owens, 259 S.W. 100. (4) The court erred in failing to grant defendant a new trial on the ground that the original panel of sixty (60) men was segregated and set aside, contrary to law. Secs. 827, 828, 832, R.S. 1939. (5) The court erred in failing to discharge the jury and declare a mistrial after defendant discovered that a second panel of 30 men had been brought over and segregated, and kept in a separate room from the other veniremen being examined on voir dire, and erred in segregating 18 veniremen out of the second panel of 30 men while 12 of the same panel were being examined in the courtroom on voir dire. Secs. 827, 828, 832, R.S. 1939. (6) The court erred in failing to sustain the affidavit filed in support of the motion and supplemental motion for a new trial, and in failing and refusing to grant appellant a new trial on account of the newly discovered evidence for the reason that defendant was denied an impartial trial by such segregation of the panel of 60 men at the instance and request of the acting circuit attorney, by the interference of the Governmental Research Institute with the veniremen summoned for jury duty by appearing in the Central Jury Room and asking prospective jurors concerning their union affiliations and their educational qualifications to sit as jurors in the trial of cases coming on at the time appellant was to be put on trial. 22 C.J.S., sec. 482, pp. 741-742; State v. Taylor, 8 S.W.2d 29; 16 C.J., p. 484, sec. 876; Secs. 827, 828, 832, 832, R.S. 1939. (7) The court erred in admitting in evidence the hearsay testimony of witness, Luella Jones, with reference to payments alleged to have been made by members of Local 42, such testimony being based upon her interpretation of copies of per capita lists and upon other hearsay evidence. (8) The court erred in admitting the testimony of State's witness, Jas. B. Hunt. (9) The court erred in admitting in evidence the oral statements testified to by State's witnesses, Hunt and Duffey, concerning the written statements obtained by them from Messrs. Hill, Hulahan and Jenkins, concerning the taking of the $ 41,000 by the fake Revenue Agents, for the reason that appellant, Golden, was not present when such statements of such other men were made; that they do not prove a conspiracy, and they are hearsay evidence. (10) The court erred in admitting in evidence the written statements of Edward Hill, State's Exhibit 26, dated October 1, 1941; the written statement of Paul Hulahan, State's Exhibit 28, dated October 2, 1941; and the written statement of Earl Jenkins, State's Exhibit 30, dated October 8, 1941, upon the grounds that they are hearsay, that no foundation was laid for their admission; that the statements were not made in the presence of defendant, Orville Golden, and such statements are not binding on him; that such statements biased and prejudiced the jury against him; that these statements were made after the alleged conspiracy had ended; that these statements were not made in furtherance of a conspiracy, but are mere narrative statements of past events. State v. Hill, 352 Mo. 895, 179 S.W.2d 712; State v. Priesmeyer, 327 Mo. 335, 37 S.W.2d 425; 22 C.J.S., pp. 1023, 1305, secs. 767, 774; State v. Buckley, 318 Mo. 17, 298 S.W. 780; 15 C.J.S., pp. 1150-56, sec. 93. (11) The court erred in admitting in evidence State's Exhibit 29, which was the alleged statement of appellant, alleged to have been made on October 3, 1941, to the Federal Officers, Hunt and Duffey, for the reason that said statement was not voluntary, but was obtained by coercion and trickery, and by representations that "things looked bad for him"; and that his statements were obtained from him after he had been accused and while he was in custody of these Federal Officers; and that said Exhibit 29 was not incriminating, but its introduction in evidence at the same time that the State's Exhibits 26, 28 and 30 were admitted in evidence, prejudiced defendant in the defense of his case. Constitution of Mo., Art. 2, Sec. 23; State v. Hill, supra. (12) The court erred in admitting in evidence, over the objections of appellant, State's Exhibit 32, which was an alleged written statement allegedly signed on October 9, 1941, and which was obtained by the Federal Officers Hunt and Duffey under coercion, duress, promises of immunity, and by trick and device after long periods of grilling, so that said exhibit was not a voluntary statement and could not be used against appellant in the trial of this case. 14th Amend. Constitution of the United States; Constitution of Missouri, Art. 2, Sec. 23; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608; State v. Williams, 99 S.W.2d 76, 339 Mo. 1038; State v. Butts, 159 S.W.2d 790, 349 Mo. 213. (13) The State failed to prove the corpus deliciti, and the demurrer to the evidence should have been sustained. State v. McWilliams, 267 Mo. 437, 449, 184 S.W. 96, 99; State v. Davis, 315 Mo. 1285, 292 S.W. 430; State v. Gallina (Mo. Sup.), 178 S.W.2d 433; 22 C.J.S., p. 1194, sec. 701, p. 1196, sec. 707; p. 1288, sec. 753. (14) The court erred in giving and reading to the jury of its own motion, Instruction 1. As this instruction is not supported by the evidence, the giving thereof was prejudicial error. State v. Herring, 268 Mo. 514, 188 S.W. 169; State v. Haschall, 284 Mo. 607, 226 S.W. 18; State v. Patterson, 159 Mo. l.c. 101, 59 S.W. 1104; State v. Washington, 259 Mo. 335, 168 S.W. 695; State v. Meysenburg, 171 Mo. 1, 71 S.W. 229; State v. Leonard, 171 Mo. 622, 71 S.W. 1017; State v. Smith, 31 Mo. 120; State v. McConnell, 240 Mo. 269, 144 S.W. 836; State v. Scovill, 15 S.W. 931; State v. Stewart, 63 S.W.2d l.c. 213; State v. Meek, 70 Mo. l.c. 358; State v. Bowman, 247 S.W. 143; State v. Craft, 23 S.W.2d 183; State ex rel. Hickey v. McGrath, 95 Mo. 193, 6 S.W. 425; State ex inf. Williamson v. Black, 145 S.W.2d 406; 1 Bouvier's Law Dictionary, p. 339; 1 Words and Phrases, 2nd Series: "Benevolence"; 1 Words & Phrases, 1st Series, p. 757: "Benevolence"; Society of Helpers of Holy Souls v. Law, 267 Mo. 667, 186 S.W. 718; State v. Brawner, 15 Mo.App. 597. (15) The court erred in giving and reading to the jury Instruction 1, for the reason that said instruction told the jury that if they found that defendant embezzled or secreted the sum of $ 30 at any time within three years before the filing of the indictment they should find him guilty. (16) Instruction 4, given by the court is erroneous, for that it contains only an abstract proposition of law, and is prejudicially erroneous on that account. State v. Meininger, 306 Mo. 675, 268 S.W. 71; State v. Cooper, 32 S.W.2d 1098; State v. Byrnes, 177 S.W.2d 909; State v. Shipley, 174 Mo. 512, 74 S.W. 612. (17) It was reversible error for the court to permit Juror No. 7, named Martin, to come to the court's Chambers during the trial of the case, resulting in a separation of the jury without the knowledge or consent of the defendant. State v. Alexander, 66 Mo. 148; State v. Beedle, 180 S.W. 888. (18) The remarks of counsel for the State, as set out in the argument, was an unwarranted criticism of counsel for appellant, and denied appellant his constitution and statutory rights not to be compelled to testify against himself. State v. Denison, 178 S.W.2d 449. (19) The repeated references by counsel for the State to the fact that a severance had been granted in ...