State v. Larkin

• Decision Date: 20 May 1913
• Citation: 157 S.W. 600,250 Mo. 218
• Parties: THE STATE v. ROY LARKIN and IDA BELLE HARRIS, Appellants
• Court: Missouri Supreme Court

157 S.W. 600

250 Mo. 218

THE STATE v. ROY LARKIN and IDA BELLE HARRIS, Appellants

Supreme Court of Missouri, Second Division

May 20, 1913

Appeal from St. Francois Circuit Court. -- Hon. Peter H. Huck Judge.

Reversed and remanded as to appellant Larkin; abated as to defendant Harris upon proof of her death.

T. M Jackson, J. H. Malugen and Benjamin H. Marbury for appellants.

(1) The mere presence of a person while the alleged crime was being committed by another, or her mental approval of what was being done, will not, in the absence of some word or act of approval or encouragement, make her guilty of that crime. State v. Valle, 164 Mo. 551; State v Orrick, 106 Mo. 120. By neither direct nor circumstantial evidence, did the respondents show that Mrs. Harris, did actually either aid, abet, assist or advise the commission of the alleged crime; nor was it shown that she was there with that purpose in mind to the knowledge of Roy Larkin; nor was it shown that she gave him encouragement; nor was it shown that she committed a single act, made a single gesture, or uttered one word of advice; and, if this be true, then the trial court should have directed a verdict of not guilty. State v. Nelson, 98 Mo. 414; State v. Miller, 100 Mo. 606; 12 Cyc. 186. One accused of a crime should not be convicted on a mere suspicion of guilt. State v. Lentz, 184 Mo. 243. The unbroken line of expression of this court is that a judgment of conviction upon insufficient evidence should be reversed. State v. Scott, 177 Mo. 673; State v. Maham, 134 Mo. 112; State v. Marshall, 47 Mo. 378. (2) There is no evidence to warrant the trial court in giving instruction 6. This is so well established in this State that authorities need not be cited. (3) While it is true that all the facts and circumstances that occurred at the time of the shooting with respect thereto may properly be admitted; yet, the four bottles of beer introduced in evidence were not found until about ten o'clock on the morning after the killing and they were not an event or part of a series of events so closely connected that a knowledge of them was necessary in order correctly to determine the nature of the transaction; and their introduction created in the minds of the jurors a prejudice against appellants. State v. Hendricks, 172 Mo. 672. (4) The law-making power of Missouri has prohibited the cross-examination of the defendant upon any matter not refrred to in his examination in chief; and the right of the prosecuting attorney to comment upon the testimony of the defendant who has offered himself in his own behalf, extends no further than his right to cross-examine him in regard to matters testified to by him in his direct examination. Sec. 5242, R.S. 1909; State v. James, 216 Mo. 403; State v. Deitz, 235 Mo. 335; State v. Patterson, 88 Mo. 90; State v. Potts, 239 Mo. 415; State v. Chamberlain, 89 Mo. 133. Under the statutory provisions (Sec. 5242, R.S. 1909) it is clear that appellant (who was the defendant) having offered himself as a witness in his own behalf could not be cross-examined except as to such matters as were referred to by him in his examination in chief (and no reference was made to Cora Carrow's statement), and it necessarily follows from this, that the comment on his evidence should have been confined to such matters as he testified about in his examination in chief and cross-examination; for, if the cross-examination was limited only to such matters as he testified about in chief, upon what principle had the prosecuting-attorney the right to comment in argument upon matters about which his cross-examination under the statute would not be allowed? Under the statute, Roy Larkin elected to take the witness stand, and chose not to testify to any matter mentioned by Cora Carrow and commented upon by the prosecuting-attorney; and the fact that he did not testify concerning this Carrow statement, the essence and spirit of the statute forbids comment upon what he might have sworn to while on the stand and which he elected not to testify about. If it is reversible error to inquire on cross-examination about matters not referred to in the examination in chief, why is it not reversible error if the prosecuting attorney comments upon a matter concerning which if the appellant had been required to testify the judgment would be reversed? Any other ruling or construction of the statute would necessarily have the effect to compel the defendant in a criminal case either to elect not to go on the witness stand at all, or if he elects to testify, then to compel him to testify fully in regard to all matters connected with the charge, even though he might thereby criminate himself. This error alone should reverse this case. State v. Graves, 95 Mo. 513; State v. Guinn, 174 Mo. 686; State v. Snyder, 182 Mo. 523. We submit it was reversible error to permit the prosecuting attorney, over the objections of appellant, and without rebuke from the court, to comment upon material and prejudicial evidence adduced by another witness, but not denied by appellant when on the witness-stand. State v. Potts, 239 Mo. 415; State v. Deitz, 235 Mo. 335; State v. Eisler, 220 Mo. 67; State v. Weaver, 165 Mo. 1; State v. Moxley, 102 Mo. 392; State v. Elmer, 115 Mo. 403; State v. Ferrell, 233 Mo. 457.

John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.

(1) It is not necessary to prove a conspiracy by direct evidence; it may be shown by facts and circumstances in the case. State v. Walker, 98 Mo. 104; State v Flanders, 118 Mo. 235; State v. Darling, 199 Mo. 199; State v. Fields, 234 Mo. 623; State v. Roberts, 201 Mo. 702; State v. Sykes, 191 Mo. 62. (2) Everything done or said by the parties during the time a conspiracy is in existence, is competent evidence, whether said in the presence of the other party or not. State v. Darling, 199 Mo. 201; State v. Copeland, 186 Mo. 120; State v. Roberts, 201 Mo. 728; State v. Fields, 234 Mo. 623. (3) The evidence strongly tended to support the theory of conspiracy. State v. Fields, 234 Mo. 623. (4) Instruction 6, given for the State, correctly stated the law as to one voluntarily entering into or provoking a difficulty in order to kill or injure his adversary. The evidence justified it. State v. Gilmore, 95 Mo. 563; State v. Davidson, 95 Mo. 155; State v. Weeden, 133 Mo. 76; State v. Smith, 125 Mo. 2; State v. Lewis, 118 Mo. 79. (5) The evidence of Cora Carrow tended to show a conspiracy; it was a question for the jury to pass upon. (6) The statement of the prosecuting attorney in his argument, as to the failure of the defendants to place the little girl on the stand, was not error. She was the daughter of one of the defendants, and was under the control of the defendants. State v. Emory, 79 Mo. 463; State v. Parker, 172 Mo. 191; State v. McCord, 237 Mo. 242. (7) Other states have held, that where a witness was related to a defendant or under his influence or control, and it was shown that such witness had an opportunity to know some material facts in the case, and was either not subpoenaed by the defendant, or if subpoenaed, not placed on the stand by him, and that fact was referred to by the prosecuting attorney in his argument, it would not constitute error in the case. Bagley v. State, 109 S.W. 1095; Eggleston v. State, 59 Tex. Crim. 542; Jackson v. State, 56 Tex. Crim. 28; State v. Costner, 127 N.C. 566; State v. Parker, 172 Mo. 191; Comm. v. McCabe, 163 Mass. 98; State v. Thomas, 127 La. 576. (8) Where a defendant takes the witness stand, and fails to deny certain criminating testimony against him, then as a matter of law, there is a presumption of law that the criminating testimony not denied is true. State v. Preston, 77 Mo. 296; State v. Anderson, 89 Mo. 330; State v. Musick, 101 Mo. 271; State v. Alexander, 119 Mo. 461; State v. Paxton, 126 Mo. 514; State v. Taylor, 134 Mo. 127; State v. Grubb, 201 Mo. 610. (9) The statements accredited to the prosecuting attorney in this case are not reversible error. State v. Ruck, 194 Mo. 440; State v. Miles, 199 Mo. 547; State v. Grubb, 201 Mo. 610; State v. Donaldson, 243 Mo. 477. (10) Under the common law, the defendant had no right to be a witness in the case. 1 Bishop's New Crim. Proc., sec. 1181. (11) Statutes in derogation of the common law are strictly construed. Perry v. Strawbridge, 209 Mo. 621; Sanders v. Railroad, 116 Mo.App. 614; Thomas v. Maloney, 142 Mo.App. 193; 36 Cyc. 1178, pt. 5. (12) Secs. 5242 and 5243, R.S. 1909, are contray to the course of the common law, and should be strictly construed. (13) As originally passed in 1877, Sec. 5242, R.S. 1909, contained no provision limiting the right to cross-examine defendants. Under that section as first enacted, a defendant who became a witness in his own behalf, was not even allowed the benefit of the constitutional immunity against incriminating himself, as against cross-examination. 1 Bishop's New Crim. Proc., sec. 1183; State v. Ober, 52 N.H. 459; Comm. v. Lannam, 13 Allan, 563; Connors v. People, 50 N.Y. 240; Comm. v. Nichols, 114 Mass. 285; Comm. v. Tolliver, 119 Mass. 312; State v. Wentworth, 65 Me. 234; Cotton v. State, 87 Ala. 103; Spies v. People, 122 Ill. 1; State v. Thomas, 98 N.C. 599; People v. Tice, 131 N.Y. 651. (14) Where defendant has become a witness, and has failed to deny criminating evidence against him, the law presumes the evidence not denied to be true, if it were in his knowledge to deny or explain it. State v. Emory, 79 Mo. 463; State v. Dickson, 78 Mo. 447; State v. Hopkirk, 84 Mo. 288; State v. Anderson, 89 Mo. 330; State v. Jackson, 95 Mo. 657; State v. Musick, 101 Mo. 271; State v. Paxton, 126 Mo. 514; State v. Taylor, 134 Mo. 127; Payne v. Railroad, 136 Mo. 594; State v. Grubb, 201 Mo. 585. (15)...