State v. Hamilton

• Decision Date: 11 March 1937
• Docket Number: 35056
• Parties: The State v. Elmer Hamilton, Appellant
• Court: Missouri Supreme Court

102 S.W.2d 642

340 Mo. 768

The State v. Elmer Hamilton, Appellant

No. 35056

Supreme Court of Missouri

March 11, 1937

Appeal from Nodaway Circuit Court; Hon. T. A. Cummins Judge.

Affirmed.

Livengood & Weightman and Emmett Bartram for appellant.

(1) To convict the defendant of the crime of accessory after the fact, the State was required to prove (a) That a felony had been committed. (b) That the accessory had knowledge that principal committed the felony. (c) That the accessory having such knowledge, assisted the principal in making his escape or in concealing the crime. State v. Varnell, 289 S.W. 844, 316 Mo. 169; State v. Naughton, 221 Mo 389; 16 C. J. 137; State v. Miller, 182 Mo. 370. (2) The court therefore erred in admitting evidence: (a) Concerning the whereabouts of Frank "Swede" Benson prior to the homicide. (b) Concerning his character and habits. (c) As to the whereabouts of the deceased, Hayes Benson and the witness Bockelman, covering a period of time aggregating several weeks prior to their arrival at defendant's home. (d) As to the activities of Hays, Benson and Bockelman at defendant's home during their stay and prior to the homicide. (3) This evidence was wholly incompetent, irrelevant and so prejudicial as to constitute reversible error. State v. Evans, 65 Mo. 574; State v. Umfried, 76 Mo. 404; State v. Nelson, 166 Mo. 191; State v. Darling, 202 Mo. 150; State v. Darling, 199 Mo. 168; State v. English, 67 Mo. 136; State v. Murray, 292 S.W. 434, 316 Mo. 31.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) General assignments of error numbered 17, 19 and 21 in appellant's motion for new trial are insufficient. Sec. 3735, R. S. 1929; State v. Thompson, 92 S.W.2d 892; State v. Bagby, 93 S.W.2d 241; State v. Goods, 39 S.W.2d 784; State v. Eason, 18 S.W.2d 71; State v. Maness, 19 S.W.2d 628. (2) The court did not err in admitting preliminary testimony as to activities of Benson, Hays and Bockelman and their association with appellant prior to the commission of the crime. 16 C. J., pp. 544, 545; State v. Jones, 256 S.W. 791. (3) The court did not err in admitting in evidence conversation between the murderer, Benson, and witness Bockelman made out of the presence of the appellant. State v. Shawley, 67 S.W.2d 83; State v. Smith, 37 Mo. 69. (4) The court did not err in permitting the State to introduce Exhibits 3 and 4. State v. Shawley, 67 S.W.2d 74; State v. Tarwater, 239 S.W. 480; State v. Stogsdill, 23 S.W.2d 22; State v. Gaiters, 39 S.W.2d 548; State v. Smith, 37 Mo. 69. (5) Appellant is not entitled to a new trial because the prosecuting attorney asked his witnesses questions which might tend to incriminate them. State v. Shepard, 67 S.W.2d 95. (6) The court did not err in its ruling as to the disqualification of members of the jury panel. Sec. 8756, R. S. 1929; State v. Boone, 289 S.W. 578; State v. Wheeler, 2 S.W.2d 777; State v. Murphy, 237 S.W. 529; State v. Knight, 278 S.W. 1036; State v. Goetz, 255 S.W. 345; State v. France, 76 S.W.2d 681; State v. Tummons, 34 S.W.2d 122; State v. Compton, 296 S.W. 137; State v. Jackson, 83 S.W.2d 87; State v. Pine, 57 S.W.2d 1087; State v. Minor, 1 S.W.2d 109; State v. Mason, 98 S.W.2d 574.

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

OPINION

WESTHUES

Appellant was convicted in the Circuit Court of Nodaway County, Missouri, of being an accessory after the fact in a murder. The information also alleged a former conviction of a felony and a discharge from the punishment imposed. A jury found appellant guilty of the charge and also found that he had been previously convicted, and assessed the maximum punishment of five years' imprisonment in the penitentiary. From this sentence an appeal was duly perfected.

Appellant lived with his three small children in Nodaway County, south of Maryville, near U.S. Highway 71. In the early part of May, 1934, Frank "Swede" Benson, Lawrence Hays and Janis Bockelman came to appellant's home and remained there, except for a trip to Colorado, until the 22d day of May, the day of the homicide. The house had two rooms, but the partition dividing them was not finished. The three children slept in one bed and Hays and Janis Bockelman occupied another bed in the same room. Appellant and Benson slept in a "bunk" house a short distance away. The evidence disclosed that Hays and Janis Bockelman were living together though not married. Mrs. Bockelman had been married but was separated from her husband. The evidence disclosed the whereabouts of Benson, Hays and Bockelman for several weeks prior to the time they arrived at appellant's home, but the details of their whereabouts will not be discussed because not material to the issues presented on this appeal, except we may say that Nodaway County was not their home.

On the evening of May 21, Benson and Hays left appellant's home. The purpose of their business was not disclosed by the record. They returned about 4:00 o'clock the following morning. Benson had been shot in the neck. Appellant was called from the "bunk" house and aided in dressing Benson's wound. It was suggested that a doctor had better be called. Hays and Bockelman drove to Hopkins, in the northern part of the county, for a doctor, but soon returned without being able to get one. Appellant thereupon took Benson to Maryville to be treated. When they arrived at the doctor's home appellant informed the doctor that he had a friend who was suffering with a carbuncle and wished to be treated. Instead of a carbuncle the doctor discovered a gunshot wound, which he treated. Appellant and Benson then returned to the home of appellant. Benson went to bed in the "bunk" house and appellant began to do the chores about the place. It was then about six-thirty A. M. While appellant was doing his chores he heard a shot, then a scream, and he ran to the house. When he arrived he found that Benson had shot Hays while Hays was in bed sleeping. The bullet passed through his head resulting in instant death. Benson also threatened Bockelman, but she ran and got in bed with the three children. After some threatening, by Benson, towards Bockelman, appellant and Benson drove away in a car. They drove to Hopkins, which is located a few miles south of the Iowa state line, where Benson got out of the car at a filling station and appellant drove back to Maryville. When appellant arrived at Maryville he stopped at an undertaking establishment and informed the man in charge that there was a dead man at his house whom he wanted them to get. He also requested the undertaker to call the sheriff and coroner. The sheriff and coroner soon arrived and questioned appellant as to what had happened. He gave them but little information, telling the officers he did not know the parties but there was a woman at the house who would tell them all about it. When the officers arrived at the home of appellant Mrs. Bockelman could not be found. It later developed that she had left immediately after appellant and Benson departed and was later found at the home of her mother in St. Joseph, Missouri. When appellant was asked as to the identity of the deceased and as to where Benson was, he denied that he knew them and misinformed the officers as to where he had taken Benson, but did inform them that he had been forced, by the killer, to take him to Maryville where he, the killer, got out of the car at the water tower. Other facts will be stated as we dispose of various points briefed by appellant.

Appellant's first point briefed is, that the evidence failed to sustain the charge. Appellant contends that the State was required to prove: First, that a felony had been committed; second, that the accessory had knowledge that the principal committed the felony; third, that the accessory, having such knowledge assisted the principal in making his escape or in concealing the crime. As to the first and second points, both the State and appellant introduced evidence establishing those facts. The defendant testified fully with reference to the homicide. He said that when he arrived at the house he saw Hays in bed, and Mrs. Bockelman informed him that Benson had killed Hays; that Benson said to him: "I killed the dirty rat, s -- of a b --. Come on and get me out of here or I'll kill you too." Appellant also testified that Benson still had a gun in his hands and threatened to kill Mrs. Bockelman, but that he, appellant, persuaded him not to do so because of the children; that Benson informed him, appellant, that Hays was the person who had shot him in the neck, that it was not an accident, and that he had not accidently shot Hays. For the State Mrs. Bockelman testified to facts showing that Benson was guilty of murder and that appellant knew of it. There was, therefore, an abundance of evidence establishing that a felony had been committed by Benson, and that appellant knew it. These facts were conceded at the trial. The third point, whether appellant voluntarily assisted Benson in making his escape, was the disputed issue at the trial. If appellant's version was correct, then Benson forced appellant, at the point of a gun, to take him to Hopkins and, therefore, appellant could not be guilty of the crime charged against him. Appellant testified in detail how Benson forced him to drive him away; that he feared Benson; that he knew him as a killer and a bad man; that Benson had been drinking and acted as if he were crazy. Appellant further testified that after he returned from Hopkins he misled the officers as to the whereabouts of Benson and kept Benson's name a secret because he was afraid that if he informed them correctly Benson would return and kill him; that Benson had threatened to do this. On the other hand, Mrs. Bockelman...