State v. Long

• Citation: 253 S.W. 729
• Decision Date: 21 June 1923
• Docket Number: No. 24191.,24191.
• Parties: STATE v. LONG.
• Court: United States State Supreme Court of Missouri

253 S.W. 729

STATE v. LONG.

No. 24191.

Supreme Court of Missouri, Division No. 2.

June 21, 1923.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Ralph Long was convicted of murder in the first degree, and he appeals. Affirmed.

H. S. Miller, of Joplin, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

DAVID E. BLAIR, P. J.

Ralph Long was convicted in division 2 of the Jasper county circuit court of the crime of murder in the first degree for the killing of one George Babcock. The jury fixed his punishment at death, and he has appealed.

Defendant and one Sterling Jackson, both negroes, arrived in Joplin from Pittsburg, Kan., on Saturday afternoon, April 8, 1922, and engaged a room for the night at the home of one Ivy Elmore. They inquired concerning the street car fares to Webb City and Carthage, and later told her they were going out, and if they were not back by 9 o'clock that night they might not be back before 5 o'clock in the morning.

They then boarded a street car and rode to Carthage, arriving there about 9 o'clock in the evening. According to the statement of the two men they had no money and had to secure some and went to Carthage to rob some one and to kill, if necessary. In walking around they passed a small grocery store conducted by said Babcock. He was a man 66 years of age. The store was three or four blocks from the public square. Babcock was about to close the store and had been counting up his money. The store had a glass front and was well lighted.

After passing the store front two or there times, the negroes entered, and Jackson, referred to as the "yellow" negro, asked for some tobacco and purchased 5 or 10 cents worth. Then defendant Long asked for soda water, and was told by Babcock he only had soda pop. One Fred 0. Beard, who lived near by, was in the store at the time and was sitting on the counter. As Babcock went to the ice box to get the soda pop, Jackson followed him. Beard then discovered defendant was covering him with a revolver. Defendant told him in a low voice to put up his hands. Not thinking defendant was serious, Beard was slow in complying. As Babcock was stooping over the ice box getting the soda pop Jackson seized him, and Babcock whirled around and said, "That is what you are after." Jackson had an open knife in his hand at the time. Long then said, whether to Beard or Babcock is not clear, "Put 'em up" and immediately fired his revolver.

The shot took effect in Babcock's neck, and he sank to the floor. Defendant and Jackson ran out and away without securing any money. Babcock died within a few minutes.

The alarm was quickly given, and an organized search for the negroes began and continued in Carthage and vicinity during the night of April 8th and until the report reached there that the men had been arrested the following afternoon in Joplin. Defendant and Jackson escaped from Carthage by walking or running through alleys. They then followed the street car tracks and the Missouri Pacific Railway tracks until they reached the concrete road, which they followed into Joplin. They escaped observation by hiding in the bushes when automobiles approached them. At about 1 o'clock Sunday afternoon, April 9th, they appeared again at the home of Ivy Elmore. It seems that some negro woman of the neighborhood telephoned to the Joplin police station and several officers rode to Ivy Elmore's house in a patrol wagon, surrounded the house and arrested both negroes there. Long was unarmed at the time he was arrested. Jackson had on his person a .38-caliber revolver, fully loaded. The bullet removed from Babcock's body was of that caliber. One barrel of the revolver appeared to have been recently fired. The revolver belonged to Jackson. Long had it in his hands at the time Babcock was killed, and he fired the fatal shot. A son of George Babcock afterwards found an open knife on the floor near where his father lay. This was shown to Long and Jackson, and they admitted it was the knife Jackson had in his hands when he assaulted Babcock, and Jackson admitted that he had dropped it on the floor.

After being arrested, Long and Jackson were taken to the Joplin police station and there questioned. At first they told conflicting stories concerning their whereabouts the preceding night. Long said that they spent the night on the depot platform. Jackson claimed that he stayed at Ivy Elmore's house all night. Jackson shortly confessed, and when Long was confronted with such confession he also admitted his connection with the crime. On being arraigned before the justice of the peace, both men said they were guilty.

The foregoing facts were developed from the testimony of Beard, the sole eyewitness, and from the confessions of the men as testified to by a number of police officers of Joplin. Beard was positive in his identification of the men. All of the officers questioned on the point said no promises were made and no coercion used to secure the confessions, and that such confessions were voluntarily made.

The defendant was separately charged and was tried in Joplin, May 1 and 2, 1922. He did not take the witness stand himself or offer any evidence in his behalf. As it appears from the files in Jackson's case, also here on appeal, Jackson was tried at Joplin immediately thereafter before Judge Perkins, sitting in division 1 of the Jasper county circuit court, and was convicted of murder in the first degree and his punishment also fixed at death. Both trials were held within one month after the killing.

The information is in the usual form, and charges Ralph Long with maliciously, willfully, deliberately, and premeditatedly killing George Babcock. Such information does not charge that the killing was done in an attempt to perpetrate a robbery. The case was submitted to the jury under instructions upon first and second degree murder.

Defendant has filed no brief in this court. Nevertheless, the duty is laid upon us to scrutinize the record carefully to see that defendant was accorded a fair and impartial trial and, in a case where the death penalty has been imposed, this duty becames a specially serious and solemn one. "

I. (a) The first assignment of error in the motion for new trial is that the court erred in admitting improper, incompetent, illegal, and irrelevant testimony on the part of the state, over the objection and exception of defendant. We have carefully studied the testimony with this point in mind and find only two instances where defendant's objections to testimony were overruled and exceptions saved, except as noticed hereafter in subdivision (c).

J. F. Laster, a police detective of Joplin, was being examined with reference to statements made by Long, and by Jackson in Long's presence, when the following occurred:

"Q. State what he said, if anything, with reference to their purpose in going to the store?

"Mr. Miller: Objected to as leading and suggestive.

"The Court: Go ahead and state what he said about going to the store, if anything.

"Mr. Miller: Except.

"A. He said they went there to rob the store.

"The Court: Who said that?

"Witness: This defendant."

The question was certainly not subject to the objection that it suggested the answer sought. It merely directed the attention of the witness to the nature of the information desired, and cannot be attacked as improperly leading the witness. It was cumulative testimony anyway. Besides it is almost entirely within the discretion of the trial judge whether he will permit the asking of leading questions. State v. Knost, 207 Mo. loc. cit. 23, 105 S. W. 616; State v. Bateman, 198 Mo. loc. cit. 222, 94 S. W. 843.

The other objection was lodged against a question on the ground that the subject had already been gone over with the witness. The objection was overruled. Permitting the question to be answered was clearly within the discretion of the trial judge. The assignment is without merit.

(b) It is next charged that the trial court erred in refusing to admit proper, competent, legal, and relevant testimony offered by the defendant. There is nothing in this assignment. The defendant offered no witnesses, and the entire record discloses not a single objection on the part of the state to any question asked the state's witnesses by defendant's counsel upon cross-examination.

(c) The next assignment is really part of the first assignment. It is that the court erred in permitting the state to introduce in evidence the transcript from the justice of the peace court, wherein the preliminary examination was held. The transcript was not introduced in evidence, but the complaint was introduced in connection with the testimony of the justice of the peace, wherein he stated that when the complaint was read to defendant he said he was guilty. The complaint charged defendant with feloniously, willfully, maliciously, deliberately, and premeditatedly shooting and killing George Babcock. We do not see how any valid objection can be made to this evidence. If it did not amount to, or was not the proper way to show, a judicial confession or admission (which we are not deciding) it was at least evidence of an extrajudicial admission or confession. There was read to defendant a certain writing charging him with having committed the murder and he said he was guilty of the charge. The complaint was then put in evidence in order to show exactly of what charge he was admitting his guilt. The admission in evidence of such complaint was not error.

II. Assignments of error in the motion for new trial from 4 to 11 relate to the trial court's action in giving instructions.

(a) Instruction 1 is the usual instruction, defining the words "willfully," "feloniously," "malice," "deliberately," "premeditatedly," and "malice aforethought." These words are defined in language which has been approved in case after case in this court from its organization to the most recent case on...