State v. Jackson

• Citation: 102 S.W.2d 612,340 Mo. 748
• Decision Date: 11 March 1937
• Docket Number: 34742
• Parties: The State v. Roscoe Jackson, Appellant
• Court: Missouri Supreme Court

102 S.W.2d 612

340 Mo. 748

The State v. Roscoe Jackson, Appellant

No. 34742

Supreme Court of Missouri

March 11, 1937

Appeal from Stone Circuit Court; Hon. Robert L. Gideon Judge.

Affirmed.

G W. Rogers for appellant.

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

(1) General assignment of error No. 11 in appellant's motion for new trial is insufficient. Sec. 3735, R. S. 1929; State v. Smith, 68 S.W.2d 696; State v. Copeland, 71 S.W.2d 746. (2) The court did not err in overruling appellant's application for a continuance. State v. Bennett, 87 S.W.2d 159; State v. Lindsey, 62 S.W.2d 420; State v. Sherry, 64 S.W.2d 238; State v. Smith, 59 S.W.2d 722; State v. Messino, 30 S.W.2d 750; State v. Mosley, 32 S.W.2d 74. (3) The court did not err in its ruling as to the cross-examination of the appellant. State v. Miller, 17 S.W.2d 353; State v. Austin, 29 S.W.2d 686; State v. Sherry, 64 S.W.2d 238; State v. Trainer, 80 S.W.2d 131; State v. Gilmore, 81 S.W.2d 431; State v. Hawley, 51 S.W.2d 77; State v. Powell, 55 S.W.2d 334. (4) The court did not err in failing to give the appellant's requested instruction on second degree murder. State v. Messino, 30 S.W.2d 759; State v. Aguelera, 33 S.W.2d 904. (5) The jury having returned a verdict of guilty but being unable to agree upon the punishment, it was not error for the court to fix the punishment. Sec. 3704, R. S. 1929; State v. McVey, 66 S.W.2d 857; State v. Bunch, 62 S.W.2d 442; State v. Walters, 29 S.W.2d 89; State v. Tribbey, 50 S.W.2d 1017; State v. Turpin, 61 S.W.2d 945; State v. De Shon, 68 S.W.2d 805.

OPINION

Leedy, J.

By information filed in the Circuit Court of Taney County, appellant was charged with murder in the first degree. A change of venue having been awarded, he was tried in the Circuit Court of Stone County and there convicted. The death penalty was imposed by the court upon the failure of the jury to agree as to his punishment. After an unavailing motion for a new trial, he appeals but has filed no brief.

The charge involved in this case grows out of the murder of a motorist, alleged to have been committed at the hands of his "hitch-hiking" passenger, who had been picked up along the highway and given a "lift." Looking to the motion for a new trial for assignments of error, we find twelve grounds, one of which we are treating as raising the question of the sufficiency of the evidence. The evidence on the part of the State was to the following effect: That on the morning of August 4, 1934, the dead body of P. L. Bozarth was found on a byroad in Taney County some three hundred feet north of State Highway No. 78, and at a point about twenty-three miles northeast of the town of Forsyth. Deceased had been shot twice through the head, and probably elsewhere. The body, found at the side of the road, was lying prone, fully clothed (except coat), and had a brown leather glove on each hand. There was a straw hat some six or eight feet from the body. The left hip pocket of the trousers was turned inside out. This gruesome discovery was made by a farmer whose home was about a quarter of a mile distant. He testified that the day before, or two days before, "just before 11 o'clock, between 10 and 11 o'clock in the morning," he was working in the woods cutting brush within two hundred yards of the place where the body was found, and at that time he heard three or four shots fired from that direction, which sounded like a .22 rifle -- two or three in rapid succession, and one ten or fifteen seconds later. The weather had been extremely hot, and the body was already in an advanced state of decomposition. There was evidence to the effect that death had occurred something more than forty-eight hours previously. The coroner was called, and he viewed the body, on which a slip or identification card was found bearing the name of P. L. Bozarth, and giving his address, the kind and number of his motorcar, et cetera. No money was found on the body. Because of the conditions mentioned, the coroner's examination was superficial. However, he did find two bullet holes in the head, but "didn't look for any more because that was enough for my records." There were car tracks indicating a car had been driven off the highway to the place where the body was found, and there it had turned around and returned to the highway.

Deceased was an elderly traveling salesman. Certain portions of Southwest Missouri, including the town of Forsyth, were embraced within his territory, where he had traveled many years and was well known. He traveled by motorcar, and at the time in question was the owner of and using a tan, straight-eight, Dodge coupe, in which he and appellant, who was a hitch-hiker, reached the Shadow Rock tourist camp, at the edge of Forsyth, on the evening of August 1. There was some conflict in the testimony as to whether appellant had been picked up by deceased at Springfield, or at the junction of Highways No. 65 and No. 44. In any event, appellant left Bozarth at the tourist camp and went into town under an arrangement that they would continue their journey the next morning between eight and nine o'clock. Bozarth stayed all night at the camp, and appellant elsewhere. Appellant returned to the camp early the next morning, and was there some two and a half or three hours until he and Bozarth left in the latter's Dodge coupe. As they were leaving Forsyth, they stopped at a filling station, where Bozarth purchased gas and oil. The owner of the filling station testified Bozarth had a purse containing a sum of money out of which he paid for his purchase, and then put the purse back in his left hip pocket, all of which was seen by appellant who was sitting in the car.

Appellant, who was about thirty-three years of age, was born in a nearby county, where certain of his relatives still resided, and although he had been in Oklahoma for some years, he had acquaintances at Forsyth. Some of these he contacted the night of August 1. They testified he said he was traveling through the country with an oil man from Seminole, Oklahoma; that they were drifting around seeing the country together in a big Dodge coupe; that they were going by his (appellant's) home and see his folks. A number of witnesses testified to certain peculiarities noted in the shoes or oxfords worn by appellant. They were white and black, but the distinguishing mark or identification was the manner in which they had been cut out around the heels. One witness testified he asked appellant why he had the heels so cut, and that appellant replied that because it was hot in the car, and it was done for the purpose of keeping his feet cool.

Appellant was apprehended on or about August 8 at Wewoka, Seminole County, Oklahoma, to which place the sheriff and prosecuting attorney of Taney County, a son-in-law of deceased, and other Missouri officers had gone in anticipation of such an event. The arrest was made by Sheriff Aldrich of Seminole County, and Sheriff Pumphrey of Taney County. At the time of his arrest, appellant was in a black Dodge coupe in company with a young woman. The car was Bozarth's, which had been repainted, and the rear bumper, trunk, spare tires and covers, and ornamental radiator cap had been removed. These accessories, or some of them, were found "out in the hills" some six or seven miles from Wewoka, where the repainting of the car had been accomplished. Appellant admitted having done the painting, but said the car "belonged to another party." In it, at the time, was found a .32 caliber Smith & Wesson revolver, the ownership of which appellant admitted, and he had in his pockets shells of that caliber. Oxfords fitting the description of those worn by him while at Forsyth were found in the "turtle back" of the car. Appellant was returned to Missouri that night, and en route he told the officers of having been present when Bozarth was held up and killed, but claimed that another "hitch-hiker," whom they had picked up "had done the job."

Thereafter at a time not definitely fixed by the record, but apparently shortly after his return to Missouri, and while incarcerated in jail, appellant made a full confession of his guilt to the prosecuting attorney, whose testimony in that connection was as follows: "Q. Tell the jury what he said before making the statement. A. Well, I went up there and was talking to him; and, he started in to telling me about the third fellow. I said, 'Roscoe, if you want to make any statement, all right. If you don't, it is all right. You needn't talk to me about the third party. I know there was not any third party there;' and, he went ahead and said he went out with Mr. Bozarth, and they got out on the road there, not very far from where the body was found, and he put the gun on him and said it was a hold-up; and, Mr. Bozarth said, 'Well, I can't believe it;' and, he said, 'Yes, I mean business.' Had the gun on him, and he said that the old gentleman said, 'What do you want me to do?' 'Well,' he said, 'turn off on the first road you come to;' and, he drove on a little ways, come to this old byroad where the body was found. He pulled out, and he told him to get out; and, Mr. Bozarth got out on the lefthand side of the car; he slipped under the wheel, meaning he got out on the same side, the lefthand side of the car; and, he said 'Turn your back to me;' and, he said Mr. Bozarth turned, but turned around and grabbed at the gun; and, he said, 'I let him have it; shot him three times with a .32 caliber pistol;' and then, he said that he fell on his face. He said he didn't move him from where he was; and, he said he took out a pocket book, out of his left hip pocket. He fell on his face by the left front wheel of the car, and that he...