State v. Kenyon

• Citation: 126 S.W.2d 245,343 Mo. 1168
• Decision Date: 21 February 1939
• Docket Number: 35887
• Parties: The State v. Robert Kenyon, Appellant
• Court: United States State Supreme Court of Missouri

126 S.W.2d 245

343 Mo. 1168

The State v. Robert Kenyon, Appellant

No. 35887

Supreme Court of Missouri

February 21, 1939

Rehearing Granted, Reported at 343 Mo. 1168 at 1183.

Appeal from Oregon Circuit Court; Hon. William E. Barton Judge; Opinion filed at May Term, 1938, August 17, 1938 motion for rehearing filed; motion overruled December 20 1938; motion to transfer to Court en Banc filed; motion overruled at September Term, February 21, 1939.

Reversed and remanded (with directions).

J. N. Burroughs for appellant.

(1) The information is fatally defective for the reasons following: (a) It fails to charge that the infliction of the mortal wound upon the deceased was feloniously done. (b) The information fails to charge that the homicidal act itself was done feloniously. (c) There is failure to allege that the deceased met his death through means of the pistol or to allege in what way or manner the pistol gave him a mortal wound. (d) There is no alleged connection of the defendant with the shooting of the deceased nor is he named or referred to in any appropriate way as having caused any wounds and especially a mortal wound to be inflicted upon the deceased. (e) The information fails to describe the location and character of the mortal wound, but duplicitously alleges that the deceased received a mortal wound in the body and the head, without charging which one was a mortal wound or caused the death of deceased, and for that reason failed to apprise the defendant of the nature and character of the charge lodged against him. By comparison of the information in the instant case with the indictments disapproved in the following cases it will be found that the present information contains all the fatal defects pointed out in cases cited below. State v. Woodard, 191 Mo. 629; State v. Birks, 199 Mo. 272; State v. Brown, 168 Mo. 449; State v. Williams, 184 Mo. 261; State v. Herrell, 97 Mo. 109; State v. Ferguson, 152 Mo. 92. In an indictment of information nothing can be left to intendment or implication. State v. Ferguson, 152 Mo. 92. (2) The conviction in this case cannot stand for the reason there was no sufficient proof of the cause. State v. Hughes, 71 Mo. 633; State v. Miller, 71 Mo. 89; State v. Meyer, 64 Mo. 190. (3) The record fails to show that the verdict was rendered by the twelve men paneled to try the cause, or that they were all in court at the rendition of the verdict or that the jury were in charge of the sheriff or that the sheriff brought them into court to return the verdict, which is fatal to the verdict. Sec. 3700, R. S. 1929; State v. Meyer, 68 Mo. 266; State v. Mansfield, 41 Mo. 472. (4) The record fails to show that the defendant was present in person on the 22nd day of July, the day the trial was concluded and the verdict was received. The only recital as to the presence of parties on that date is the following: "Now at this day comes again the said parties, plaintiff and defendant, by their respective attorneys, whereupon the trial is resumed and progresses in the hearing of the evidence to the conclusion thereof." This recital must be taken as a conclusive showing that the defendant was not present and the verdict should be set aside for that reason. State v. Shoenwald, 31 Mo. 147; Sec. 3655, R. S. 1929; State v. Smith, 90 Mo. 39; State v. Meagher, 49 Mo.App. 571. (5) The court erred in giving Instruction 1 for the reason that under the evidence of the State, the defendant was not guilty of murder in the first degree and the whole evidence fails to sustain a conviction for first degree murder. State v. Lewis, 74 Mo. 222; State v. Kelleher, 201 Mo. 614; State v. Speyer, 207 Mo. 540. This proposition will be discussed from the standpoint of the evidence under the head of Argument.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance and states a charge of murder in the first degree, and fully informs the defendant of the crime charged. Sec. 3982, R. S. 1929; State v. Benson, 8 S.W.2d 52; State v. Johnson, 26 S.W.2d 793; State v. McKinley, 111 S.W.2d 118; State v. Meinhardt, 82 S.W.2d 890. (2) The evidence in the case was sufficient to prove the venue of the cause in Howell County, Missouri. State v. Skibiski, 245 Mo. 464, 150 S.W. 1038; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066. (3) The record does show that the verdict was rendered by the twelve men in the panel to try the cause, and that they were all in court at the rendition of the verdict and that the jury were in charge of the sheriff, and that the sheriff brought them into court to return the verdict. (4) The court did not err in giving Instruction 1 for the reason that it followed the information and was proper. State v. Rodgers, 102 S.W.2d 567. (5) Objections to instructions are abandoned when not included in motion for new trial. State v. Mason, 98 S.W.2d 574, 339 Mo. 874.

OPINION

Ellison, J.

The appellant, twenty years of age, was convicted of murder in the first degree, the death penalty being inflicted by the jury, in the Circuit Court of Oregon County on change of venue from Howell County, for shooting and killing Dr. J. C. B. Davis while kidnaping him in the latter county on January 26, 1937. There were five assignments of error in his motion for new trial in the circuit court, only two of which are specific enough to comply with the new trial statute, Section 3735, Revised Statutes 1929 (Mo. Stat. Ann., p. 3275). One of these challenges the sufficiency of the evidence; the other complains of the reception of testimony from a witness who had remained in the court room during the hearing of the evidence after the rule had been enforced.

The Assignment of Errors in appellant's brief filed in this court complains of several errors not assigned in the motion for new trial, some of these being charged to be apparent on the face of the record proper: (1) that the information was fatally defective; (2) that the record fails to show the jury were kept together in custody of a sheriff during the second day of the trial, and when they returned their verdict; (3) that it does not appear from the record that the appellant was present at the trial on said day; (4) that the State failed to prove the venue; (5) that error was committed in giving two instructions.

The deceased, Dr. Davis, was a practicing physician in Willow Springs, Missouri, well along in life. He had been married thirty-six years. He was seen by B. F. Thomas of that city to leave his office on the afternoon of January 26, 1937, about five o'clock, and walk away with the appellant. His office girl, Miss Geraldine Frommell, testified that about that hour he departed from the office saying he was going to see his sisters, but in a few minutes returned, and reported that he had to make an emergency call at the home of a man named James about six miles in the country. She saw him get his medical kit from his automobile and leave the latter parked. Thereafter he disappeared until his corpse was found a week later.

In the meantime a ransom note from the doctor to his wife passed through the West Plains post office on the evening of the next day, January 27; his medical kit was found in North Fork Creek in Ozark County on January 30, and a second ransom note addressed to Mrs. Davis was deposited in the U.S. Mail letter box outside the post office door in West Plains, about twenty miles from Willow Springs, sometime between 8 P. M. on February 1 and the next morning. A Special Agent of the Federal Bureau of Investigation saw a man answering appellant's general description drive up alone in a 1937 Ford sedan or coach with Missouri license plate No. 437,154, and deposit something in that mail box at 8:05 P. M. on the night mentioned. Mr. Thomas gave Sargeants Massey and Beach of the State Highway Patrol a description of the man he had seen leave with Dr. Davis on the afternoon of January 28. They arrested appellant at the home of his father, Daniel Kenyon, on February 2. He had a .25 caliber Colt's automatic pistol and his suit case contained a tablet of writing paper. His automobile was a 1937 Ford bearing license No. 437,154, corresponding with that seen to drive up to the West Plains post office.

After prolonged questioning about four o'clock in the morning of February 3 the appellant conducted Col. Casteel and other members of the State Highway Patrol, and Federal agents, to a point on Highway 63 about two miles south of Pomona where the body of Dr. Davis was found lying in the woods near a pond face down, frozen to the ground, glasses on the nose undisturbed, the right arm extended akimbo with a glove on the hand, the left arm doubled under the body with a check book in the hand. His hat was on the ground about twenty feet away, and his overcoat on. There were two bullet wounds close together almost directly in the back of the head which did not penetrate the skull cavity; three entrance wounds in the back and three exit wounds in the front, of the torso. All of these went clear through the body. Two of them passed through or near the heart and were instantly fatal. There were skin abrasions on the thumb and middle finger of the right hand made by a bullet. This accounted for six bullets. Two bullets about waist high at the front of the body had not penetrated the underwear and were recovered. Another bullet was later found which had been shot into and remained in the glove on the right hand. These three bullets were miscroscopically compared with test bullets fired through the pistol taken from appellant at the time of his arrest, and in the opinion of Mr. Guinn Tamm, a ballistics expert from the Federal Bureau of Investigation at Washington, all had been shot from the...