State v. Kinnamon

• Decision Date: 28 May 1926
• Docket Number: No. 26449.,26449.
• Citation: 285 S.W. 62
• Parties: STATE v. KINNAMON.
• Court: Missouri Supreme Court

285 S.W. 62

STATE v. KINNAMON.

No. 26449.

Supreme Court of Missouri, Division No. 2.

May 28, 1926.

Appeal from Circuit Court, Cooper County; H. J. Westhues, Judge.

Emmett Kinnamon was convicted of being an accessory before the fact of murder, and he appeals. Affirmed.

Elmer D. Martin, of Kansas City, Kan., Dumm & Cook, of Jefferson City, Horace Griffin, of West Plains, and D. W. Peters, of Jefferson City, for appellant.

Robert W. Otto, Atty. Gen., and W. 3. Frank, Asst. Atty. Gen., for the State.

HIGBEE, C.

An opinion was filed in this cause at the last term, in which we declined to consider the bill of exceptions for the reason that it appeared from the record that the motion for new trial was filed in vacation, and, finding no error in the record, the judgment of conviction was affirmed. It being subsequently shown by a corrected transcript that the motion was seasonably filed within four days after verdict, during a recess of the court (Maloney v. Mo. Pac. R. Co., 122 Mo. 106, 114, 26 S. W. 702; Shewalter v. McGrew, 60 Mo. App. 288, 289; Beckmann v. Phœnix Ins. Co., 49 Mo. App. 604), the court, of its own motion, in furtherance of justice, granted a rehearing.

The appellant and William Gray were charged with murder in the first degree for shooting and killing John Tritsch on November 12, 1923, in Cole county, Gray being charged as principal and Kinnamon as an accessory before the fact. Gray entered a plea of guilty, and was sentenced to imprisonment for life. Kinnamon was awarded a change of venue to Cooper county, where he was tried to a jury, found guilty, and sentenced to life imprisonment, from which he appealed.

John Tritsch, the deceased, conducted a restaurant on West Main street in Jefferson City, about three blocks west of the state capitol and across the street from the roundhouse of the Missouri Pacific Railroad Company, and was patronized by railroad employees. On pay days Tritsch cashed their pay checks and kept money on hand for that purpose. November 12 was pay day, and Tritsch had cashed a number of these checks. At 6 p. m. the employees at the roundhouse had twenty minutes for their suppers at this restaurant. On the evening of November 12, these employees having eaten and left the restaurant, William Gray, with a revolver in his hand and a handkerchief over the lower part of his face, entered the restaurant, saying "Stick 'em up!" Tritsch, it seems, did not take this seriously, but said: "If that is the way you are going to play, I can play too." Gray then shot Tritsch in the side, inflicting a wound from which Tritsch died November 14. Gray took the money out of the cash register and left the restaurant. He was arrested that evening with the revolver in his pocket and $86.25 in cash on his person.

Kinnamon had lived for a short time in a tent at Osage City, a village eight miles east of Jefferson City, and followed the occupation of fishing. A few days prior to, and again on the afternoon of the day of the homicide, he and Gray had been seen together at Kinnamon's camp at Osage City. Kinnamon was in Jefferson City on the afternoon and evening of November 12, and was seen by several persons in the vicinity of the restaurant after the homicide. He was arrested the following morning at Osage City. Gray, a boy of 18, came to Jefferson City in October, 1923, and was a comparative stranger. Kinnamon was little known. We quote from the statement of the Attorney General:

"J. D. Coffelt testified that he resided at 221 East Main street, Jefferson City, and boarded at the Tritsch restaurant; that on the evening of the killing he had just eaten supper, came out of the restaurant and started to town; that about one-half block from the restaurant he observed two men talking together. One answered to the name of Gray, and one answered to the name of Kinnamon. As he got up within ten feet of them, one said to the other, `That won't work'; and the other one said, `Work, God damn it; it's got to work.'

"On cross-examination, this same witness said: `Q. Which one said, "It can't be done?" A. Gray. Q. What did the other man say? A. He said, "It won't work? Why, God damn it, it's got to work." Q. Then what did Gray say? A. He said, "It will get us both in bad." The Witness: Gray said something, but I didn't hear what was said, and then Kinnamon, he called him a yaller son of a bitch.'

"This witness further testified: `Q. You recognized them at the preliminary that morning as being the two men you saw the night before? A. Yes, sir.'

"This witness further testified that immediately after hearing this conversation he went on to the fire station, which was about five blocks, and when he arrived there he heard of the shooting.

"John Kremer testified that he was living in Osage City on November 12, 1925, and had lived there for several years; that a few days prior to the killing he saw appellant and William Gray together in Osage City. `I met appellant in Osage City the next morning after the killing, and he said to me, "This boy took any smoker and went up there to Jefferson City and pulled off a stunt." He made this statement to me about 8 or 9 o'clock the next morning.'

"Witness Guental testified as follows: `I am night watch at the sand plant; and go on duty at 5 o'clock in the evening and work until 6 o'clock in the morning. The sand plant is about one block north of the Tritsch restaurant. I had a .25 Colt automatic pistol I kept in a drawer in the desk in the office at the sand plant. Appellant Kinnamon had been in the office several times and saw this pistol lying on the desk. I saw Kinnamon about 5 o'clock in the afternoon on the day of the killing, about 100 yards from where I work, and saw him at the plant at 7 o'clock when the policemen were there. He slept in the office at the sand plant until about 12 o'clock on the night of the killing, then got up and said he was going home. I looked for my revolver about midnight on the day of the killing, and it was gone. Q. I hand you State's Exhibit A, being a Colt revolver, and ask you to state if that looks like the Colt revolver you had there in the sand plant office? A. Yes, sir; it looks like it.'

"Geo. F. Wallau testified that he and his father were owners of the sand plant. He identified the Colt revolver that was taken from Gray and introduced in evidence at the trial, and testified that it was the revolver that the night watch had at the sand plant. He further testified that he furnished this revolver to the night watch, and that he knew by the serial number that it was the same revolver. He further testified that he had seen appellant around the sand plant.

"Albert Schatzer testified that he, with other officers, arrested appellant. `We found some clothes at appellant's camp that Bill Brennan said belonged to Gray.'

"William Gray testified that he took the revolver from the office at the sand plant and afterward shot Tritsch with it. He denied that Kinnamon had anything to do with the killing. Gray further testified that he was with Kinnamon at his camp near Osage City about 10 o'clock a. m. on the day he shot Tritsch."

1. It is insisted that, since it is conceded Kinnamon was not present at the homicide, there is no substantial evidence to support the verdict. Learned counsel say:

"We believe that the sum total of the evidence tending in the remotest degree to connect this defendant with the crime is as follows: That a few days prior to November 12, 1923, the defendant, Kinnamon, who was camping and fishing near Osage City, was seen with William Gray on the street in Osage City; that on the next morning the defendant said to John A. Kremer, at Osage City, `This boy took my smoker and went up there to Jefferson City and pulled off a stunt'; that Kinnamon was a friend of Guental, the night watchman at the sand plant, and had frequently visited him there; that Kinnamon was in Jefferson City and in the vicinity of the sand plant at 5 o'clock in the afternoon of the said day the crime was committed and again at 7 and 8 o'clock in the evening of that day; that about 6 o'clock in the evening of said day, the witness Coffelt observed...