State v. Jackson
| Decision Date | 21 June 1923 |
| Docket Number | No. 24192.,24192. |
| Citation | 253 S.W. 734 |
| Parties | STATE v. JACKSON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.
Sterling Jackson was convicted of murder in the first degree, and he appeals Affirmed.
H. S. Miller, of Joplin, for appellant.
Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.
The defendant was charged with the crime of murder in the first degree for the killing of one George Babcock. He was found guilty as charged, and the jury assessed his punishment at death. After unsuccessfully moving for a new trial and in arrest of judgment, he was sentenced on the verdict and has appealed.
This is a companion case to the case of State v. Ralph Long, No. 24191, 253 S. W. 729, decided on this date. The Long Case was tried at Joplin on May 1 and 2, 1922, before Judge Emerson, in division 2 of the Jasper county circuit court, and appellant Jackson was tried before Judge Perkins at Joplin in division 1 of said court on May 3, 4, and 5, 1922.
The two cases grew out of the same homicide. The evidence in the two records is practically indentical. It is unnecessary to state the facts in this case at length, and reference is made to the opinion in State v. Long, No. 24,191, 253 S. W. 729, and we adopt the statement of facts made therein, except as herein noted.
Ralph Long and defendant attempted to rob deceased in his grocecry store in Carthage. They entered the store for that purpose. Long had a revolver belonging to defendant, and defendant had an open knife in his hand. Babcock offered resistance, and Long shot him, and he died within a few minutes.
The witnesses offered by the state in this case were the same as were used in the Long Case, except Luther Laster, a police officer of Joplin, and E. McDonald, a justice of the peace of Galena township, before whom the preliminary examination was held, did not testify in the instant case. No witness testified in this case who did not testify in the Long Case. The testimony of the witnesses who testified in both cases was substantially the same at both trials. The same counsel represented both defendants.
Defendant did not testify as a witness and offered no evidence in his own behalf. The trial court instructed on murder in the first degree only, and not upon murder in the second degree, as was done in the Long Case. Like the Long Case, this case is before us on the record and transcript of the evidence and proceedings without statement or brief of counsel, and it becomes necessary for us to scrutinize such record for ourselves, as it is our duty under the law to do.
I. The first assignment of error in the motion for new trial is that the trial court erred in admitting improper, incompetent, illegal, and irrelevant testimony on the part of the state, over the objection and exception of the defendant. Our examination of the transcript discloses only three or four instances where testimony offered by the state was thus admitted.
(a) Policeman Reha was examined concerning the finding of a revolver upon defendant, and "stated that he did not see it taken off of him, although he was present when the defendant was arrested. The examination of said witness then proceeded as follows:
It appears that no objection was really made. However, the court treated the remark of counsel as such, and we will do likewise. Even if it was error to permit the witness to identify a revolver he did not see taken from the defendant, the error was harmless. There was abundance of testimony by other witnesses that the revolver was the same one taken from the defendant, and that defendant admitted that a revolver was taken from him when he was arrested, that it was his and was the revolver with which the shooting was done by Long.
(b) At another place in the record an objection and exception are noted to the admission of testimony relative to where Long was found in the house and that the officer told him to come out. Defendant was in the yard at the time and under arrest, and probably did not hear what was said or see what was done when Long was arrested. We are unable to see how defendant could possibly have been prejudiced by this testimony, even if it was not properly admitted, which we need not decide.
(c) Defendant objected and excepted to the admission of testimony by the sheriff that immediately after the killing he organized a large force of men in order to scour the town and surrounding country to apprehend the men who committed the homicide, and was unable to find Long or Jackson after such search. This testimony was clearly admissible for the purpose of showing flight by the persons committing the homicide. State v. Witherspoon, 231 Mo. loc. cit. 721, 133 S. W. 323; State v. Kelley, 191 Mo. 680, 90 S. W. 834. Defendant admitted that he and Long left Carthage as quickly as they could get away after the killing.
The foregoing constitute all the exceptions made to the admission of testimony—and in fact all the objections not sustained by the court—which diligent study of the record discloses. The assignment is without merit.
II. The assignment that the trial court erred in refusing to admit proper, competent, legal, and relevant testimony offered by defendant is utterly without foundation. Defendant offered no evidence, and no testimony was denied him on cross-examination of the state's witnesses.
III. Assignments 3 to 12, both inclusive, deal with the instructions given by the trial court.
(a) Instruction if, in substance, required the jury to and beyond a reasonable doubt that Ralph Long feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought shot and killed George Babcock with a revolving pistol, a deadly weapon, and that defendant was feloniously, etc., present, aiding and abetting Long in such shooting and killing of Babcock, before the jury were authorized to find defendant guilty of murder in the first degree. We find no fault with the instruction. It is in the usual and often approved form, and correctly laid down the law applicable to cases where one is charged with being present, aiding and assisting another in the commission of a crime. It involves a finding by the jury of all the elements of murder in the first degree as defined by section 3230, R. S. 1913.
(b) Instruction 2 told the jury that if they found defendant was acting jointly or in concert with Ralph Long, and that said Long intentionally shot and killed said Babcock for the purpose of robbing him and in attempting to rob him, then such shooting was done feloniously, willfully, deliberately, premeditatedly, etc., and that if defendant was then and there intentionally present, aiding, assisting, etc., said Long in attempting to rob said Babcock and in shooting him, and that Babcock died as a result of such shooting, the jury should find defendant guilty of murder in the first degree. The instruction properly declared the law. It is proper to instruct on the effect of killing in an attempt to rob, although the information does not charge the killing is done in an attempt to perpetrate a robbery. State v. Barrington, 198 Mo. as, 95 S. W. 235; State v. Long, the companion case hereto.
(c) Instruction 3 was as follows:
"You are further instructed that when two or more persons form a design or purpose to do an unlawful act, each of said persons is guilty of any and all acts done by any of them in furtherance of such design or purpose; and if you find from the evidence that one Ralph Long and the defendant, Sterling Jackson, acting together, in concert and with a common design, went to the store a George Babcock for the purpose of robbing him of his money or property, and, in attempting to accomplish such robbery, the said Ralph Long shot and killed the...
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...as by the indictment he stands charged; and assess the punishment at death, Frank S. Winter, Foreman" —is sufficient. State v. Jackson (Mo. Sup.) 253 S. W. 734, loc. cit. 737; State v. Adams, 316 Mo. 157, loc. cit. 164, 289 S. W. 948; State v. Baublits, 324 Mo. 1199, loc. cit. 1207, 27 S.W.......
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