State v. Hyde

• Decision Date: 11 April 1911
• Parties: THE STATE v. B. CLARK HYDE, Appellant
• Court: Missouri Supreme Court

136 S.W. 316

234 Mo. 200

THE STATE v. B. CLARK HYDE, Appellant

Supreme Court of Missouri, Second Division

April 11, 1911

Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.

Reversed and remanded.

Frank P. Walsh, John M. Cleary, Johnson & Lucas and R. R. Brewster for appellant.

(1) Indictment is illegal and void and the defendant should be discharged. State v. Stowe, 132 Mo. 199; United States v. Riley, 74 F. 210; State v. Drake, 30 N. J. L. 422; State v. Wiseback, 139 Mo. 214; State v. Thompson, 137 Mo. 620; State v Meysenberg, 171 Mo. 51; State v. Hall, 130 Mo.App. 175; State v. Krueger, 134 Mo. 262; State v. Barbee, 136 Mo. 440. (2) The evidence of the State is wholly insufficient to sustain the verdict. State v. Nesenhener, 164 Mo. 461; State v Jackson, 95 Mo. 623; State v. Moxley, 102 Mo 374; State v. Francis, 199 Mo. 671; State v. Jones, 106 Mo. 302; State v. Scott, 177 Mo. 665; State v. Crabtree, 170 Mo. 642; State v. Johnson, 209 Mo. 357. (3) The court committed error in admitting over defendant's objection incompetent, irrelevant, immaterial and prejudicial testimony offered by the State, and in excluding competent, relevant and material testimony offered by the defendant. (a) As to other offenses: Schafner v. Commonwealth, 72 Pa. St. 60; Sykes v. State, 112 Tenn. 572; Farris v. People, 129 Ill. 528; Pitts v. State, 43 Miss. 473; State v. Palmberg, 199 Mo. 233; State v. David, 131 Mo. 397; Bird v. United States, 180 U.S. 356; Kearney v. State, 68 Miss. 233; People v. Molineux, 168 N.Y. 26; Beavers v. State, 54 Ark. 336; State v. Boatright, 182 Mo. 51; State v. Spray, 174 Mo. 85; State v. Goetz, 34 Mo. 85; State v. Reed, 85 Mo. 194; State v. Tabor, 95 Mo. 590; State v. Reavis, 71 Mo. 419; State v. Burlingame, 146 Mo. 207; State v. Harroll, 38 Mo. 496; State v. Alston, 94 N.C. 930; Lee v. State, 72 S.W. 1005; Davis v. State, 54 Neb. 177; Janzen v. People, 159 Ill. 441; Raymond v. Commonwealth, 96 S.W. 515; State v. May, 142 Mo. 154; State v. Wilson, 174 Mo. 569; State v. Parker, 96 Mo. 382; State v. Raymond, 53 N. J. L. 260; Boyd v. United States, 142 U.S. 450; People v. Lonsdale, 122 Mich. 388; State v. Brown, 188 Mo. 464; People v. Collins, 107 N.W. 1114. (b) As to expert evidence: Baehr v. Casualty Co., 133 Mo. 541; Glasgow v. Railroad, 191 Mo. 347; Braggs v. Railroad, 192 Mo. 343; Taylor v. Railroad, 185 Mo. 255; Gutridge v. Railroad, 194 Mo. 472. (4) The court erred in giving instruction number two for the State. State v. Bailey, 57 Mo. 131; State v. Sayers, 58 Mo. 588; State v. Hudson, 59 Mo. 138; State v. Chambers, 87 Mo. 409; State v. McKenzie, 102 Mo. 631; State v. May, 142 Mo. 152. (5) The court erred in permitting the prosecuting attorney and special counsel to make improper and highly prejudicial statements during the progress of the trial in the presence of the jury. State v. Jackson, 95 Mo. 623; State v. King, 64 Mo. 591; State v. Reed, 71 Mo. 200; State v. Lee, 66 Mo. 165; State v. Mahly, 68 Mo. 315; State v. Elmer, 115 Mo. 401; State v. Fairlamb, 121 Mo. 150; State v. Ulrich, 110 Mo. 350; State v. Shipley, 174 Mo. 512; State v. Clancy, 225 Mo. 654; State v. Fischer, 124 Mo. 460; State v. Robbst, 131 Mo. 328; State v. Moxley, 102 Mo. 374; Evans v. Trenton, 112 Mo. 390; State v. Lentz, 184 Mo. 243. (6) The improper comments of the court on the law and the evidence, and his repeated exhibitions and manifestations of anger toward defendant and his counsel, during the trial in the presence of the jury, were gross errors and tended to prejudice the jury against defendant. Rose v. Kansas City, 125 Mo.App. 231; Wright v. Richmond, 21 Mo.App. 76; Padgett v. Moll, 159 Mo. 143; State v. Shipley, 174 Mo. 512; State v. Lentz, 184 Mo. 243; State v. Kring, 64 Mo. 591; State v. Phillips, 109 P. 1049; Hicks v. United States, 103 P. 873; Wheeler v. Wallace, 53 Mich. 355; State v. Swisher, 186 Mo. 14. (7) The court erred in permitting counsel specially employed to prosecute defendant to make the opening statement to the jury and the closing argument on the part of the State. R. S. 1899, sec. 2627; State v. Price, 111 Mo.App. 423; R. S. 1899, sec. 4890. (8) The court erred in revoking the defendant's bond and committing him to jail during the pendency of the trial. (9) The court erred in overruling defendant's objections to the hypothetical questions propounded to the State's experts, because the questions assumed facts which were not in evidence and excluded facts which were in evidence. Russ v. Railroad, 112 Mo. 48; Benjamin v. Railroad, 50 Mo.App. 610; Hicks v. Railroad, 124 Mo. 125; Root v. Railroad, 195 Mo. 377; Dernart v. Storage Co., 121 Mo.App. 105; Davis v. Ins. Co., 52 P. 67 (Kas.) ; Soquet v. State, 72 Wis. 659. (10) The verdict of the jury is the result of bias, passion and prejudice, and is therefore a denial of the constitutional guarantee that the defendant shall have a trial by a fair and impartial jury.

Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State; Virgil Conkling and James A. Reed of counsel.

(1) The indictment is sufficient in form and substance and contains every material and essential allegation charging appellant with murder in the first degree of Thomas H. Swope, by administering to him "strychnine, and other deadly drugs and poisonous substances, to the jurors unknown." R. S 1909, sec. 4485; Kelley's Crim. Law (2 Ed.), sec. 568; Sherwood's Crim. Law, 142; 3 Chit. Crim. Law, 771; State v. Steen, 115 Mo. 474; State v. Brooks, 92 Mo. 550; Joyce on Indictments, 733. (2) The indictment is legal and valid and fully informed appellant of the crime with which he is charged. Appellant makes the further contention that the indictment is insufficient, because it does not contain the specific charge of the administering of cyanide of potassium, a deadly poison, instead of charging "and other deadly drugs and poisonous substances, to the jurors unknown." In other words, appellant contends that the indictment should be held bad as against our State Constitution, which provides by Sec. 22 of the Bill of Rights that, "the accused shall have the right . . . to demand the nature and cause of the accusation" against him, and relies upon the case of State v. Stowe, 132 Mo. 199, as the leading authority in this State as supporting his contention. On this point the rule is clearly stated in Bishop's New Criminal Procedure, sec. 553, to be as follows: "In homicide, the indictment may charge that it was committed 'in some way and manner, and by some means, instruments, and weapons, to the jurors unknown,' if in fact the grand jury are unable on investigation to be more specific." The author cites the following, among other authorities, in support of the above rule: Commonwealth v. Webster, 59 Mass. 295; State v. Williams, 7 Jones (N. C.) 446; People v. Cronin, 34 Cal. 191; State v. Burke, 54 N.H. 92; State v. Parker, 65 N.C. 453; State v. Wood, 53 N.H. 484; Cox v. People, 80 N.Y. 500; Olive v. State, 11 Neb. 1. (3) The evidence offered on the part of the State clearly and positively proved appellant guilty as charged beyond a reasonable doubt, and the verdict of the jury is fully warranted in finding appellant guilty of murder in the first degree as charged. The rule of law is well settled in this State that if there is any substantial evidence upon which to base the verdict, even in a criminal case, it will not be disturbed on appeal. State v. Smith, 190 Mo. 723. (4) The court did not err in admitting evidence tending to prove the commission of the other crimes than the one charged in this indictment. It is a general rule of law that a distinct, unconnected crime with that laid in the indictment cannot be proved against the defendant. 1 Bishop's Crim. Proc., sec. 1120. Yet this general rule of law has a number of well recognized exceptions. 1 Bishop's Crim. Proc., sec. 1126. See sections 1127, 1128 and 1129 of 1 Bishop's Crim. Proc., for further additional exceptions to the general rule. People v. Molineux, 168 N.Y. 293; Goersen v. Commonwealth, 99 Pa. St. 398. The real question to be considered is whether the events connected with the other crimes or attempted crimes, as proved in this case, are so related to the murder of Col. Swope, as charged in the indictment, as to fall within one or more of the well recognized exceptions as heretofore stated. One common motive for the crime as charged in the indictment runs through all of the other alleged crimes. State v. Spaugh, 200 Mo. 594; State v. Bailey, 190 Mo. 279; Goersen v. Commonwealth, supra; Commonwealth v. Robinson, 146 Mass. 577; Commonwealth v. Snell, 189 Mass. 22; Hawes v. State, 88 Ala. 37; Higgins v. State, 157 Ind. 57; People v. Harris, 136 N.Y. 423; Zoldoske v. State, 82 Wis. 580. The evidence of the other alleged crimes was properly admitted to show the intent with which Dr. Hyde administered the capsule to Col. Swope, and to disprove the possibility of mistake, accident, or doubt as to the cause of Col. Swope's death. People v. Molineux, supra, 300; Wharton's Am. Crim. Law (6 Ed.), sec. 649; 3 Greenleaf, Ev., sec. 15; Stephen's Digest of Ev., arts. 11 and 12; 7 Am. and Eng. Ency. Law, 61-62. There was one common plan or scheme in the murder of Col. Swope and all of the other alleged crimes. People v. Molineux, supra, 305. The following additional authorities fully sustain the position of the State as to the admissibility of the evidence showing the commission of the other alleged crimes: State v. Toohey, 203 Mo. 678; Regina v. Cotton, 12 Cox's Cr. Cas. 400; Makin v. Attorney-General, 17 Cox's Cr. Cas. 704; Regina v. Geering, 18 L. J. Maj. Cas. 215; Regina v. Heesom, 14 Cox's Cr. Cas. 40. (5) The court did not err in permitting the expert medical witnesses for the State to give their opinions on...