State v. Mabry

• Citation: 22 S.W.2d 639,324 Mo. 239
• Decision Date: 11 December 1929
• Docket Number: 29825
• Parties: The State v. Lawrence Mabry, Appellant
• Court: United States State Supreme Court of Missouri

22 S.W.2d 639

324 Mo. 239

The State v. Lawrence Mabry, Appellant

No. 29825

Supreme Court of Missouri

December 11, 1929

Rehearing Denied January 6, 1930.

Appeal from Cooper Circuit Court; Hon. Henry J. Westhues Judge.

Affirmed.

H K. Bente and Irwin & Bushman for appellant.

(1) The State produced no evidence to support a conviction, except defendant's uncorroborated extrajudicial confessions. Before these confessions were admissible it was incumbent upon the State to prove the corpus delicti. There is no evidence, direct or circumstantial, outside of mere conjectures in the alleged confessions, that deceased's death was caused by an attempt at robbery made by the defendant; nor is there any evidence corroborating the confessions. State v. Bennett, 6 S.W.2d 881; State v. Capotelli, 292 S.W. 42. (2) Testimony of a confession of the crime charged, made out of court by the accused, must be supported by independent proof, to show that a crime was in fact committed. The State wholly failed by competent proof to show that a crime was in fact committed. State v. Bennett, 6 S.W.2d 881; State v. Young, 237 Mo. 170. (3) a confession to be admissible must be entirely voluntary. State v. Hart, 292 Mo. 74; State v. Meyer, 293 Mo. 108; State v. Ellis, 294 Mo. 269. (4) When the corpus delicti has not been sufficiently established, an uncorroborated extrajudicial confession of guilt improperly admitted cannot be regarded as tending to show guilt, and cannot be considered in passing upon the subject of the evidence to sustain a verdict of guilty. State v. Bennett, 6 S.W.2d 881; State v. Capotelli, 292 S.W. 42. (5) The statement related by witness Lamm, as having been made by deceased Busch, was made after he had left the scene of the injury. It could be no part of the res gestae. It was made while the defendant was not present and would not be binding upon him; it therefore should have been excluded, and the court erred in admitting such testimony. State v. bennett, 6 S.W.2d 881; State v. Capotelli, 292 S.W. 42; State v. Fletcher, 190 S.W. 317; State v. Skibiski, 245 Mo. 459; State v. Young, 237 Mo. 170; State v. Bowen, 247 Mo. 584. (6) Extrajudicial confessions must be corroborated. Testimony of the confession of the crime which is made out of court by the accused must be supported by independent proof of the corpus delicti; that is, it must be proven that the crime was actually committed and by competent evidence. It must be supported by independent proof of the corpus delicti; that is, be proven that a crime in fact was committed. State v. Bennett, 6 S.W.2d 881; State v. Young, 237 Mo. 170; Robertson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424; State v. Coats, 174 Mo. 396; State v. German, 54 Mo. 396; State v. Henderson, 186 Mo. 473; Kelly Crim. Law and Practice, sec. 281; 12 Cyc. 483; State v. Bowen, 247 Mo. 584; State v. Capotelli, 292 S.W. 42. (7) On a prosecution for a particular crime evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. These two extrajudicial confessions, if a confession at all, were intermingled with other crimes and were not admissible against defendant. 16 C. J. 586, sec. 1132; State v. Banks, 258 Mo. 479; State v. Duff, 253 Mo. 415; State v. Hyde, 234 Mo. 200; State v. Hale, 156 Mo. 102; State v. Jackson, 95 Mo. 651; State v. Bennett, 6 S.W.2d 881. (8) Full proof of the corpus delicti independently of the confession is not required. If there is evidence of corroborated circumstances which tend to prove the corpus delicti and correspond with circumstances relating to the confessions, both the circumstances and the confessions may be considered in determining whether the corpus delicti is sufficiently proven in a given case. State v. Bennett, 6 S.W.2d 881; State v. Skibiski, 245 Mo. 459; State v. Bowen, 247 Mo. 599; State v. Young, 237 Mo. 170; State v. Archer, 6 S.W.2d 912. (9) Where the evidence raises only a suspicion of guilt it will not sustain a conviction. State v. Archer, 6 S.W.2d 912; State v. Bennett, 6 S.W.2d 881; State v. Woodsaw, 175 Mo.App. 393; State v. Ferelf, 248 S.W. 979; State v. Rutledge, 304 Mo. 32; State v. Miller, 264 Mo. 441. (10) The testimony of State's witnesses does not even create a suspicion of any criminal conduct on part of the defendant. Said testimony does not place the defendant near the scene, does not show a hold-up was even attempted, does not show that the defendant or anyone else shot deceased Busch. The mere suspicion and conjectures in the testimony offered by the State cannot take the place of substantial testimony, tending to prove defendant's guilt and meeting the requirements of the law. It is only upon substantial evidence and not mere circumstances of suspicion that a charge of crime can be sustained, and because of the absence of such evidence in this case the court should have directed a verdict of acquittal. State v. Young, 237 Mo. 170; State v. Bennett, 6 S.W.2d 881; State v. Archer, 6 S.W.2d 912; State v. Slittbaugh, 250 Mo. 308; State v. Cluck, 252 Mo. 51; State v. Davis, 232 S.W. 211; State v. Singleton, 294 Mo. 346. (11) The court erred in giving Instruction "E" on behalf of the State, for the reason that no conspiracy was shown between Collins and defendant. There is no evidence offered by the State, outside of State's exhibits 1 and 2, that would even indicate that anyone was shot, or that the defendant had anything to do with the shooting of anyone. No premeditation shown on the part of the defendant, and there was no testimony upon which to base said instruction. State v. Hersh, 296 S.W. 433; State v. Creed, 299 S.W. 207. The giving of Instruction "E" was clearly error. The information did not allege that Collins was a party to the crime or that Collins and the defendant were acting in concert, neither is there any evidence, independent of the pretended confession, that Collins had anything whatever to do with the transaction. (12) The court erred in giving State's instruction "H," for the reason it in substance told the jury that if they believed from the evidence that the defendant made a statement or statements concerning the offense charged in the information, -- they must consider the statements altogether in the light of the circumstances under which they were given. It was never shown that the defendant was informed by anyone that said statements might be used against him in the trial of his case. There was no independent proof of the commission of the crime charged from that of the alleged extrajudicial confessions, and there was no testimony offered by the State upon which to base said instruction. State v. Bennett, 6 S.W.2d 881; State v. Archer, 6 S.W.2d 912; State v. Young, 237 Mo. 170; State v. Crabtree, 170 Mo. 642.

Stratton Shartel, Attorney-General, and A. M. Meyer, Assistant Attorney-General, for respondent.

(1) The second count of the information correctly charges murder in the first degree by homicide committed in the perpetration of a robbery. Sec. 3230, R. S. 1919; State v. Adams, 316 Mo. 157; State v. Foster, 136 Mo. 655; State v. Barrington, 198 Mo. 40; State v. Peak, 292 Mo. 261; State v. Carroll, 288 Mo. 408; State v. Robinett, 279 S.W. 696; State v. Baker, 278 S.W. 987. (2) There was sufficient evidence of the corpus delicti to render the confession admissible. State v. Bennett, 6 S.W.2d 881; State v. Joy, 315 Mo. 19. (a) The medical testimony conclusively shows that deceased came to his death by a gunshot wound in the back, with traumatic peritonitis as the supervening cause. This sufficiently establishes the death of the deceased by a criminal agency. There is further the statement of deceased "I'm shot. Somebody tried to stick me up and said 'Stick 'em up,' and I ran." (b) The fct of death by a criminal agency having been established, the confessions, as corroborated by the physical facts and the portions admittedly true, as well as by the testimony of Mason Lane and Mrs. Wingate, were properly received. State v. Yeager, 12 S.W.2d 32; State v. Barrington, 198 Mo. 23. (3) The confessions were admitted after the court heard testimony and determined they were voluntary, and were then admitted and considered by the jury under proper instructions requiring them to find they were voluntary. State v. Yeager, supra; State v. Lowry, 12 S.W.2d 469. The portions of the statements relating to other crimes were expressly withheld from the jury and were not read in evidence. (4) The statement made by deceased within a minute of the shooting and while deceased was still dazed from the shock of the bullet, was properly admitted as part of the res gestae. It rose naturally from the circumstances and was undersigned and spontaneous. It was a mere exclamation. State v. Hart, 309 Mo. 77. There was no dispute as to the substance of the statement. Defendant does not deny that Bush was shot in a hold-up. (5) Instruction E was justified by the statements which have been shown to have been properly admitted in evidence. No complaint is made of the form of the instruction. The information need not allege a conspiracy where the conspiracy is a mere incident and means to the crime charged. State v. Carroll & Jocoy, 288 Mo. 407. (6) Instruction F was in a form many times approved by this court. State v. Williams, 274 S.W. 435. This instruction, in connection with Instruction E and the instruction on reasonable doubt, fully and fairly stated the law of conspiracy. State v. Williams, supra; State v. Sebastian, 215 Mo. 58. (7) Instruction H properly declared the law of confessions. Cases, supra; State v. Baker, 278 S.W. 987.

OPINION

White, J.

The appeal is from a sentence of death...