State v. King

• Decision Date: 17 August 1938
• Docket Number: 35352
• Citation: 119 S.W.2d 322,342 Mo. 1067
• Parties: The State v. Byron E. King, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 322

342 Mo. 1067

The State v. Byron E. King, Appellant

No. 35352

Supreme Court of Missouri

August 17, 1938

Appeal from Circuit Court of City of St. Louis; Hon. James M Douglas, Judge.

Reversed and remanded (with directions).

Herbert L. Kelley, Jr., for appellant.

Defendant has the right to be informed by the indictment as to the type of offense he is charged with so he can be prepared to offer a defense. He was deprived of his constitutional right by this procedure. Article II, Section 22 of the Missouri Constitution Bill of Rights provides, "In criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel, to demand the nature and cause of the accusation." In setting forth the constituent elements of the crime charged, it is necessary that the allegations made should be of such a nature as to apprise the accused of the nature of the crime with which he is charged, to the end that he may, under the right granted him by the Constitution, be enabled to prepare his defense. State v. Griffith, 311 Mo. 630, 279 S.W. 135; Mo Const., Art. II, Sec. 22. All the phrases contained in the statute defining murder in the degree necessary to make it cover the charge against this defendant should have been set forth in this indictment. In other words, granting that homicide in the perpetration of a robbery was the crime the State intended to prove, judging by the testimony produced at trial, the phrase pertaining to that form of murder in the first degree should have appeared somewhere in the indictment. If different word or phrases in a statute are connected by a conjunction or disjunctive, the said words or phrases are not synonymous and it is not sufficient to use only one of such words or phrases, but if the statute is being followed as expressive of all the constituent elements of the offense, then all the words or phrases necessary to define the particular crime involved must be used. State v. Brown, 304 Mo. 78, 262 S.W. 710; R. S. 1929, sec 3982. The right, long ago established in English law of every one accused of crime to be informed of the nature of the accusation against him, is expressly preserved in the constitutions of the several states. This right requires that the offense must be set out with clearness and all necessary certainty to apprise the accused of the crime of which he stands charged. State v. Greery, 68 N.H. 495, 38 L. R. A. 228; 8 R .C. L., pp. 67, 318; 5 L. R. A., 833. That every person has a right to be informed of the nature of the accusation, is held to mean that the offense must be set out with clearness, and all necessary certainty to apprise the accused of the crime of which he stands charged. United States v. Noelke, 17 Blatchf. 554. The indictment must set forth the offense with clearness and certainty. United States v. Cruickshank, 92 U.S. 542, 23 L.Ed. 588. No indictment shall be considered valid which does not fully inform the defendant of the offense of which he stands charged. R. S. 1929, sec. 3563. The correct form for an indictment charging murder while in the commission of a robbery is to charge murder in the first degree in general form in one count and to charge murder in the first degree while perpetrating a robbery in the other count. Such form was upheld in the following case. State v. Adams, 316 Mo. 157, 289 S.W. 948. Omission of the word "with" before the description of an instrument used in a killing was sufficient grounds for reversing a judgment. The court said that everything constituting the offense must be pleaded with certainty, and nothing left to implication. In this case the death penalty had been given. State v. Ferguson, 152 Mo. 92. The Missouri statutes give the defendant in an indictment or information a reasonable time in which to examine and prepare his pleading. R. S. 1929, sec. 3613. But what good will it do a defendant to examine an indictment if he is not informed as to the crime he is to be tried for but for another kind of a crime?

Roy McKittrick, Attorney General, J. E. Taylor, Assistant Attorney General, and Arthur O'Keefe for respondent.

(1) The indictment in this cause follows the language of the statute and is in a form which has been approved by this court. Sec. 3982, R. S. 1929; State v. Johnson, 26 S.W.2d 793; State v. Barbata, 235 S.W. 1057; State v. Moore, 235 S.W. 1057; State v. Copeland, 335 Mo. 140, 71 S.W.2d 746; State v. White, 330 Mo. 737, 51 S.W.2d 109; State v. Messino, 325 Mo. 743, 30 S.W.2d 750; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132; State v. Adams, 289 S.W. 948. (2) The corpus delicti was shown in this case. State v. Click, 57 S.W.2d 1077; State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523; State v. Mabry, 22 S.W.2d 639; State v. Kaufman, 329 Mo. 813, 46 S.W.2d 843; State v. Henderson, 186 Mo. 473, 85 S.W. 57; State v. Smith, 44 S.W.2d 45; State v. Skibiski, 245 Mo. 463; State v. Joy, 315 Mo. 7, 285 S.W. 489; State v. Emerson, 318 Mo. 643, 1 S.W.2d 109; State v. Mabry, 22 S.W.2d 639; State v. Morro, 313 Mo. 108, 281 S.W. 722. (3) The trial court properly admitted the confession of the accused. State v. Hershon, 45 S.W.2d 60; Wharton's Criminal Evidence, p. 981; State v. Hopkirk, 84 Mo. 284; State v. Stebbins, 188 Mo. 387, 87 S.W. 460; State v. Christup, 85 S.W.2d 1026. (4) The separation of one of the jurors during recess from the other eleven was not error. State v. Tarwater, 293 Mo. 273, 239 S.W. 480; State v. McGee, 83 S.W.2d 102; State v. Dodson, 92 S.W.2d 615; State v. McGee, 83 S.W.2d 104; State v. Orrick, 17 S.W. 180, 106 Mo. 111; State v. Link, 3 S.W.2d 369. (5) Homicide committed in the perpetration of robbery is first degree murder and deliberation and premeditation, willfulness or malice aforethought, does not have to be shown. Sec. 3982, R. S. 1929; State v. Mabry, 22 S.W. 640; State v. Lindsay, 62 S.W.2d 420; State v. Moore, 35 S.W.2d 905; State v. Messino, 30 S.W.2d 750; State v. Hart, 237 S.W.2d 473. (6) The court did not err in refusing to instruct on the other degree of homicide other than first degree murder. State v. Nasello, 30 S.W.2d 137; State v. Messino, 30 S.W.2d 750; State v. Yeager, 12 S.W.2d 30; State v. Merrell, 263 S.W. 118. (7) The cross-examination of the defendant at the preliminary hearing as to the admissibility of the confession was not prejudicial error. State v. Pierson, 331 Mo. 636, 56 S.W.2d 120; State v. Kelly, 284 S.W. 801; State v. Barnes, 29 S.W.2d 156, 325 Mo. 545; State v. Wilson, 122 S.W. 675; State v. Meyer, 293 Mo. 108, 238 S.W. 457.

OPINION

Ellison, J.

The appellant was convicted of murder in the first degree in the Circuit Court of the City of St. Louis and his punishment assessed at death. On this appeal he challenges the sufficiency of the indictment; contends the verdict is not supported by the evidence because there was no proof of deliberation, or of the corpus delicti aside from his extrajudicial confession; maintains his confession was involuntary and extorted by physical violence, threats and promises; complains of the admission of incompetent evidence, of improper cross-examination of himself as a witness and of the separation of the jury during the trial; and assigns error in the trial court's failure to instruct on second degree murder and manslaughter, and in the closing argument of the assistant circuit attorney. His defense was an alibi, supported only by his own testimony.

The victim of the homicide was George Speer, who had been a chauffeur for the J. A. McFall & Sons Auto. Livery Company in St. Louis for fourteen years or more. The indictment charged in the usual form a willful, deliberate and premeditated killing of Speer by appellant with a pistol on January 17, 1936, in violation of the first part of Section 3982, Revised Statutes 1929 (Mo. Stat. Ann., p. 2778). The appellant contends the State's evidence fails to show the killing was deliberate. The State answers that the evidence shows the homicide was committed in the perpetration of a robbery, in violation of the second part of said statute, and that proof of deliberation therefore was unnecessary. The appellant denies that but replies if the State desired to stand on that theory the indictment should have so charged. Hence the contention that it was insufficient to support the verdict.

The proposition is well settled in this State that a prosecution for first degree murder in the perpetration of any of the felonies enumerated in Section 3892, supra, may be maintained on an indictment or information which merely charges a willful, deliberate and premeditated killing. So appellant's attack upon the indictment need not be further considered. [State v. Copeland, 335 Mo. 140, 150, 71 S.W.2d 746, 752; State v. Meadows, 330 Mo. 1020, 1027, 51 S.W.2d 1033, 1037; State v. Nasello, 325 Mo. 442, 457-458, 30 S.W.2d 132, 136.] But a review of the evidence is, of course, necessary to determine whether the proof was sufficient to support the verdict on either theory, i.e., by showing deliberation, or that the homicide was committed in the perpetration of a robbery; and whether instructions on second degree murder and manslaughter should have been given.

There were no eyewitnesses to the homicide. There is strong evidence that it was committed by the appellant, but the State is forced to rely on his admissions to show the circumstances of the killing. The appellant, an ex-convict arrived in St. Louis on January 11, 1936. He was brought to the DeSoto Hotel by the deceased cab driver Speer that day, according to the testimony of Frank Cahill, clerk thereof, and was assigned to a room. He kept the room until the night of January 16, the night of the homicide, and left without paying his bill. He had no ostensible business and spent much time idling about the hotel. On the...