State v. Lindsey

• Decision Date: 24 June 1933
• Docket Number: No. 32825.,32825.
• Citation: 62 S.W.2d 420
• Parties: THE STATE v. OLA LINDSEY, Appellant.
• Court: Missouri Supreme Court

62 S.W.2d 420

THE STATE v. OLA LINDSEY, Appellant.

No. 32825.

Supreme Court of Missouri, Division Two.

June 24, 1933.

Appeal from Boone Circuit Court. — Hon. H.A. Collier, Judge.

AFFIRMED.

Baker & Baker for appellant.

(1) The prosecuting attorney cannot in his opening statement present to the jury damaging facts which he does not in good faith expect to prove by competent testimony upon the trial. When he does make such statements the court should give a cautionary instruction. People v. Luberto, 209 N.Y. Supp. 544, 212 App. Div. 691; Shacklett v. State, 211 Pac. 1063, 23 Okla. Cr. 4; State v. Olivieri, 236 Pac. 1100, 49 Nev. 75; People v. Desimons, 225 N.Y. 261, 121 N.E. 761; Choate v. Commonwealth, 196 S.W. 1060, 176 Ky. 427; People v. Rogers, 136 N.E. 470, 303 Ill. 578; Nichanin v. United States, 263 Fed. 680; People v. Donaldson, 171 Pac. 442, 36 Cal. App. 63. (2) The court erred in giving Instruction 2 on the part of the State, because the court, in its instruction, should never assume a controverted fact. State v. Johnson, 234 S.W. 794; State v. Potts, 144 S.W. 495, 239 Mo. 403; State v. Farr, 265 S.W. 1069. (3) One coconspirator is not responsible for each and every act of another coconspirator in carrying out the common design, but is only responsible for such acts as could reasonably have been expected or anticipated. State v. Robinett, 279 S.W. 696; State v. Hays, 262 S.W. 1037. Therefore defendant's Instructions B, F, and G should have been given. (4) The statement made by the prosecuting attorney during the closing argument of appellant's counsel commenting upon the failure of defendant to testify constitutes reversible error. State v. Shuls, 44 S.W. (2d) 96. (5) The prosecuting attorney should not be permitted in his closing argument to make inflammatory statements, or one which would arouse the prejudice and passion of the jury. When he does so and is not properly reprimanded, such action on his part constitutes reversible error. State v. Delcour, 248 S.W. 606, 297 Mo. 321; State v. Conner, 252 S.W. 713; State v. Ray, 225 S.W. 969. (6) A homicide committed in an attempt to escape jail is not murder in the first degree, but is murder in the second degree. Only homicide committed in a perpetration or attempt to perpetrate arson, rape, robbery, burglary or mayhem, constitute murder in the first degree. Secs. 3982, 3983, R.S. 1929; State v. Robinett, supra; State v. Hays, supra.

Roy McKittrick, Attorney-General, and Franklin E. Reagan, Assistant Attorney-General, for respondent.

(1) The prosecuting attorney acted in good faith in making the opening statement, and included therein facts which he expected to prove, and in fact did prove in the trial of the case. State v. Beaghler, 18 S.W. (2d) 427. (2) The court properly refused to give defendant's requested Instruction A because it was unnecessary, and was a comment on the evidence. (3) The court properly refused to give defendant's Instruction B. State v. Williams, 274 S.W. 435; State v. Linders, 299 Mo. 671; State v. Nasello, 30 S.W. (2d) 133. (4) The court properly refused to give defendant's Instructions F and G. Nasello case, supra; State v. Linders, 299 Mo. 671. (5) The court committed no error in giving Instruction 2 which properly sets out the responsibility of coconspirator. State v. Williams, 274 S.W. 434; State v. Robinett, 279 S.W. 696; State v. Hays, 262 S.W. 1037; State v. Nasello, 30 S.W. (2d) 138. (6) There was no comment upon the defendant's failure to testify in this case. State v. Faught, 140 Mo. App. 369; State v. Brugioni, 7 S.W. (2d) 264; Sec. 3693, R.S. 1929; State v. Greer, 12 S.W. (2d) 90; State v. Long, 22 S.W. (2d) 809; State v. DeWitt, 186 Mo. 61; State v. Shuls, 44 S.W. (2d) 96; Kenefick v. Norwich Ins. Co., 103 S.W. 961; State v. White, 253 S.W. 724; State v. Cooper, 271 S.W. 471; State v. Lucas, 293 S.W. 1051. (7) The argument of the prosecuting attorney was not prejudicial. State v. Mathis, 18 S.W. (2d) 8; State v. Lynn, 23 S.W. (2d) 139; State v. Greer, 12 S.W. (2d) 91. (8) The court properly submitted the issues of defendant's guilt as to murder in the first degree to the jury.

FITZSIMMONS, C.

Appellant, upon a separate trial in the Circuit Court of Boone County, was found guilty of murder in the first degree. His punishment was fixed at imprisonment in the penitentiary for life. From the sentence and judgment he appealed. The charge of murder in the first degree was lodged by a joint indictment against appellant, Ola Lindsey and Floyd Brown, Roy Stephens and Norris Stephens for the death of Omar Cook who was beaten with a stick of wood and an iron stove shaker in the county jail of Boone County at Columbia on November 30, 1931. Appellant, Lindsey, and Floyd Brown, Norris Stephens and the deceased Cook were prisoners in the jail at the time of the assault. Appellant and Brown escaped from the jail soon after the assault. Norris Stephens made an unsuccessful attempt to escape. Two preliminary assignments of error merit first consideration.

[1] I. Appellant attributes error to the order of the court in overruling his motion to quash the panel from which the trial jury subsequently was chosen. The ground of the motion was that, on March 16, 1932, the day set for appellant's trial, Norris Stephens, one of the codefendants, was brought into court and he entered a plea of guilty to murder in the second degree in the presence and hearing of the members of the panel, who had been subpoenaed in appellant's case. Appellant in his motion alleged that this was done with the connivance and knowledge of the prosecuting attorney for the purpose of influencing the jury to the prejudice of appellant. A hearing being had on the motion to quash, the prosecuting attorney testified that he was informed by the sheriff, a few minutes before court convened on the day of appellant's trial, that a witness whom the State desired to call could not be found. The prosecuting attorney decided to have Norris Stephens to testify substantially to the same facts as he had expected to prove by the missing witness. He had an understanding of several weeks duration with the attorney for Stephens that the latter would plead guilty. Therefore, when he learned of the absence of the material witness, he arranged with the attorney for Stephens to enter the plea of guilty at once in order that Stephens might be a competent witness. The prosecuting attorney also testified that what he and counsel for Stephens said to the court in connection with the plea of guilty was out of the hearing of the members of the panel and that in these statements no reference was made to the fact that the Stephens case was connected with the case of appellant. The testimony of the prosecuting attorney was not controverted. The essential allegations of the motion to quash were not supported by the evidence and the trial court properly overruled that motion and also appellant's motion for a continuance which was grounded substantially upon the same reasons as the first motion.

[2] II. The second assignment of error is aimed at the ruling of the court upon an objection of appellant's counsel to parts of the prosecuting attorney's opening statement to the jury. The prosecuting attorney stated that appellant and his codefendant Brown discussed with a fellow prisoner named Roy Fite, several days before the assault upon Cook and their escape their scheme to break jail; that they said to Fite that Roy Stephens (a codefendant), was to bring them saws; that Omar Cook (the fellow prisoner who later was killed) was a snitch. At this point counsel for appellant objected to the prosecuting attorney further stating what purported to be a conversation between Fite and Brown and appellant for the reason that the prosecuting attorney, at the preliminary hearing upon the motion to quash the panel, had stated that Roy Fite would not be a witness. The prosecuting attorney retorted that he had stated a subpoena had not been served on Fite and that he was depending on getting him back to be a witness. The court informed the prosecuting attorney that he was bound by his statement and directed him to proceed. Without further objection, the prosecutor stated that appellant Lindsey and Brown, in their conversation with Fite, referred to Omar Cook as a snitch and said that in making their escape, it might be necessary that they kill two or three men in the jail.

Of this assignment of error, we may observe first, that counsel for appellant delayed making objection until the prosecuting attorney almost had completed that part of his statement. "We object to that statement," said counsel. "We have let it go on quite awhile," etc. Second, substantially the same facts which the prosecutor stated that he expected to prove by Roy Fite he elicited from the witness Norris Stephens. [3] Third, the rule is well settled that the opening statement of the prosecuting attorney is not error if he acts in good faith and with reasonable grounds for supposing that he can prove the facts stated. The trial court has a wide discretion in determining whether the prosecuting attorney is acting in good faith. [16 C.J. 890; Dees v. Skrainka Construction Co., 320 Mo. 839, 8 S.W. (2d) 873; State v. Beaghler (Mo.), 18 S.W. (2d) 423.] We cannot find in the instant case that the court abused its discretion. This assignment therefore is ruled against appellant.

[4] III. A third assignment of error, closely related to the preceding one, is based upon the refusal of the court to give the jury appellant's Instruction A which is as follows: "The court instructs the jury that you will not consider as evidence in this case any statement made by the prosecuting attorney in his opening statement to you. In this connection the court instructs that there is no evidence in this case as to any statements made by either the defendants Lindsey or Brown to one Roy Fite and you (should) wholly disregard statements made by the...