State v. Lowry

• Decision Date: 10 January 1929
• Docket Number: 29045
• Citation: State v. Lowry, 12 S.W.2d 469, 321 Mo. 870 (Mo. 1929)
• Parties: The State v. Thomas Lowry, Appellant
• Court: Missouri Supreme Court

12 S.W.2d 469

321 Mo. 870

The State v. Thomas Lowry, Appellant

No. 29045

Supreme Court of Missouri

January 10, 1929

Motion for Rehearing Overruled January 10, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Affirmed.

Emmett Golden, Jerome Simon and Verne Lacy for appellant.

(1) A juryman who has any pecuniary interest in a cause is incompetent. Meyer v. Nelson, 67 Mo.App. 389; Kinney v. Railroad Co., 261 Mo. 97. The Constitution, Art. 2, sec. 22, requires defendant to have a trial by an impartial jury. (2) When an indictment is found by the grand jury, the names of all the material witnesses must be indorsed thereon. Sec. 3889, R. S. 1919; State v Ray, 83 Mo. 268; State v. Pearson, 270 S.W 347; State v. Walton, 255 Mo. 413. (3) A homicide in resisting an illegal arrest is manslaughter and not murder in the first degree. 29 C. J. 1144; McKeon v. Casualty Co., 270 S.W. 707; Jones v. State, 14 Mo. 412; Robert v. State, 14 Mo. 138; State v. Holcomb, 86 Mo. 371; State v. Edwards, 70 Mo. 482; State v. Hancock, 73 Mo.App. 19; State v. Grant, 79 Mo. 134; Earles v. State, 85 S.W. 4; Jenkin v. State, 3 Ga. 146; State v. Underwood, 75 Mo. 230; State v. McGeehee, 274 S.W. 70. (4) Witnesses cannot testify to transactions of which they know only by hearsay. State v. Hansom, 231 Mo. 14; State v. Little, 228 Mo. 273; State v. Elkins, 101 Mo. 344; 16 C. J. 641, 642. (5) A confession or admission to be admissible must be entirely voluntary. State v. Hart, 292 Mo. 74; State v. Ellis, 294 Mo. 269; State v. Meyers, 312 Mo. 91; State v. Thomas, 250 Mo. 189. (6) Words and acts of one of a class of persons importing hostility towards another, upon a charge of homicide committed upon one of the class, while decedent was apparently in pursuit of the common hostile purpose, are held admissible in favor of the accused for the same purpose as evidence of specific acts of violence of decedent. 30 C. J. 242; Jackson v. State, 103 Ark. 21; Fain v. Com., 78 Ky. 183; State v. Dows, 51 Ore. 136; State v. Hanlon, 38 Mont. 563; Parsons v. Commonwealth, 138 Va. 783. (7) An instruction which fails to define probable cause is error. State v. Grant, 79 Mo. 134. Instructions which assume facts are erroneous. State v. Creed, 252 S.W. 628; State v. Frish, 195 S.W. 997; State v. Mills, 272 Mo. 526. Instructions which comment on the evidence are erroneous. State v. Swarens, 294 Mo. 139; State v. Hogan, 252 S.W. 387; State v. Malloch, 269 Mo. 235; State v. Ferguson, 221 Mo. 524. (8) An instruction which does not properly declare the law on the right to resist an illegal arrest and which does not require a finding that the defendant knew the deceased was acting as on officer is erroneous, and which does not define reasonable cause is erroneous. State v. McGeehee, 274 S.W. 73; State v. Grant, 79 Mo. 134; 5 C. J. 405. (9) Instructions which present defendant's theory of the case and which are based on evidence must be given. Jones v. State, 14 Mo. 412; Robert v. State, 14 Mo. 138; State v. Grant, 79 Mo. 134; State v. McGeehee, 274 S.W. 70; McKeon v. Casualty Co., 270 S.W. 707. Instructions which are converse of instructions given by the State and which are offered by defendant must be given. State v. Majors, 237 S.W. 486; State v. Levitt, 278 Mo. 372; State v. Cantrell, 234 S.W. 800; State v. Johnson, 234 S.W. 794; State v. Jackson, 126 Mo. 521; State v. Dougherty, 228 S.W. 786. (10) Instruction 7 offered by defendant presented defendant's theory of the case and should have been given. Jones v. State, 26 Tex.App. 12; State v. Hancock, 73 Mo.App. 19; State v. Matthews, 49 S.W. 1085; State v. Rose, 142 Mo. 418; Plumner v. State, 135 Ind. 312. (11) The city ordinance on speeding should not have been introduced, as there was no evidence of violation of said ordinance and no evidence of defendant's residence in St. Louis, or continuous presence therein for 48 hours. Sec. 7550, A23, par. A, Laws 1921, Ex. Sess. p. 99.

Stratton Shartel, Attorney-General, and L. Cunningham, Assistant Attorney-General, for respondent; A. M. Meyer of counsel.

(1) The State concedes that a juryman who has pecuniary interest in a cause is incompetent, but contends the doctrine has no application to this case. The fact that a citizen is a stockholder in a corporation which contributes funds to a committee for the suppression of crime, does not disqualify the citizen as a juror. State v. Daniels, 274 S.W 28; State v. Burns, 85 Mo. 47, 49; State v. Lee, 298 S.W. 1044; State v. Stephens, 195 Mo.App. 34; State v. Gartland, 263 S.W. 168. (2) No witnesses' names were improperly indorsed on the indictment. The record shows that the circuit attorney made a showing of good faith. State v. Barnes, 289 S.W. 562; State v. Anderson, 274 S.W. 20. The court offered defendant time to interrogate and investigate the witness, and this opportunity was refused. There was no error in this and the affidavit of surprise and motion for a continuance and the motion to strike out were properly overruled. State v. Barnes, 289 S.W. 562; State v. Anderson, 271 S.W. 20; State v. Aurentz, 315 Mo. 242; State v. Frost, 289 S.W. 898. (3) A homicide, even if an arrest is illegal, is not necessarily reduced to manslaughter because committed in resisting the arrest. The crime is still murder except in the absence of malice, and the absence of malice "is not necessarily established by the fact that the arrest or attempt to arrest is illegal." 29 C. J. 1144; State v. Johnson, 76 Mo. 121; State v. McNally, 87 Mo. 644; State v. Holcomb, 86 Mo. 371; Jones v. State, 14 Mo. 413; Roberts v. State, 14 Mo. 138; Williams v. State, 44 Ala. 41; Nowles v. State, 26 Ala. 31; People v. Gilman, 190 P. 205; Galvin v. State, 6 Coldw. (Tenn.) 283. The mere declaration of an intent to make an illegal arrest unaccompanied by an attempt to do so is not adequate provocation. State v. Tabor, 95 Mo. 585; Commonwealth v. Drew, 4 Mass. 391; 29 C. J. 1145. Instruction 5 is in approved form. State v. Renfrow, 111 Mo. 589. It is not denied by the defendant that the officer had reasonable cause, but it is denied that it was proved that he committed the offense of leaving the scene of an accident. (4) There are many exceptions to the hearsay rule. Defendant's point is apparently directed at the admission in evidence of the statement of a negro chauffeur, "Get him boss, he hit me." It is clear that this statement was introduced for the purpose of showing that deceased had reasonable ground for arresting defendant. It was directed to the issue of probable cause and the purpose was to show the effect on the mind of the officer and not to show the truth of the statement itself. The question is not whether the defendant hit the negro's car but whether the officer had reasonable grounds to believe that he did, and this testimony was competent to that issue. State v. Peters, 242 S.W. 894. In addition defendant asked his instruction number four on the theory that credible information is a sufficient basis for probable cause. (5) There was ample evidence that defendant's extra-judicial statements were voluntary and they were admitted in evidence after a hearing by the court in the absence of the jury and were afterwards submitted to the jury and their competency again gone into before the jury, and the jury were required to find that they were voluntarily made. State v. Johnson, 289 S.W. 849; State v. Johnson, 252 S.W. 624. The finding of the court and the verdict of the jury are entitled to a presumption of correctness. State v. Midkiff, 278 S.W. 681; State v. Hopkirk, 84 Mo. 278; State v. Patterson, 73 Mo. 695; State v. Johnson, 252 S.W. 623. The confession was sufficiently corroborated by the finding of the car in which the defendant escaped pursuant to and at the point shown by the defendant's confession. Turner v. State, 4 S.W.2d 58; State v. Cantrell, 6 S.W.2d 839; Pierce v. State, 5 S.W.2d 516; State v. Flowers, 278 S.W. 1042; Underhill, Crim. Evidence (3 Ed.) par. 230. There was direct and positive evidence that any duress of defendant was removed at the time he made the statements admitted in evidence. (6) Testimony offered by defendant that certain police officers had told him to leave town, the deceased not having been present nor connected with the incident, was properly refused. Commonwealth v. Principatti, 260 Pa. 587; State v. Hanlon, 38 Mont. 563; 30 C. J. 242. The alleged threats were too remote, the defendant having been absent from the city for a large part of that time. Parsons v. Commonwealth, 138 Va. 783; People v. Craig, 111 Cal. 460; 30 C. J. 242. (7) Shooting an officer in resisting arrest constitutes murder in the first degree "with malice prepense." State v. Peters, 242 S.W. 894; State v. Moore, 235 S.W. 1056; State v. McNally, 87 Mo. 652. (8) Instructions which present defendant's theory of the case and which are based on evidence need not be given if covered by correct instructions given. State v. Cook, 3 S.W.2d 365; State v. Hicks, 3 S.W.2d 230; State v. Stuart, 289 S.W. 822; State v. Kunkel, 289 S.W. 865; State v. Mitts, 289 S.W. 935; State v. Gilden, 289 S.W. 821; State v. Broyles, 295 S.W. 554. Converse instructions, even though requested, need not be given, if instructions given are in the converse form. Instructions 1, 2 and 3 given by the court were given in the converse form, and hence the court did not err in refusing converse instructions offered by the defendant. State v. Sloan, 309 Mo. 512; State v. Dougherty, 287 Mo. 82. (9) There was no error in permitting the introduction of the city ordinance against speeding, and appellant cites no cases in sup port of his contention. It was competent as bearing upon reason able cause on the part of deceased to arrest defendant for its violation. If error, it was...