State v. Massey

Citation219 S.W.2d 326
Decision Date14 March 1949
Docket NumberNo. 40964.,40964.
PartiesSTATE OF MISSOURI, Respondent, v. ORIS MASSEY, Appellant.
CourtUnited States State Supreme Court of Missouri

Appeal from Phelps Circuit Court. Hon. Tom R. Moore, Judge.

AFFIRMED.

Emery W. Allison, Theodore G. Scott and Claude T. Wood for appellant.

(1) The Circuit Court of Phelps County, Missouri, was without any jurisdiction to try this case on September, 1947, by reason of the fact that the Writ of Prohibition issued by the Supreme Court of Missouri was in full force and effect at the time of the trial. The effect of this writ was to vest sole and exclusive jurisdiction of this case in the Supreme Court of Missouri, and to completely divest the Circuit Court of Phelps County of any jurisdiction herein. State ex rel. Pettibone v. Mulloy, 52 S.W. (2d) 402, 330 Mo. 1084; State ex rel. Powers v. Rassieur, 190 S.W. 915. (2) The scope of legitimate argument was transcended by the assistant prosecutor in the trial below to such an extent as to inflame the prejudices and to excite the passion of the jury against the appellant and to deprive the appellant of a fair and impartial trial and to such an extent as to constitute reversible error. State v. Tiedt, 206 S.W. (2d) 524; Johnson v. United States, 63 Sup. Ct. 549, 318 U.S. 189, 87 L. Ed. 704; State v. Leonard, Mo. Sup., 182 S.W. (2d) 548; State v. Richardson, 163 S.W. (2d) 956, 349 Mo. 1103; State v. Bobbst, 131 Mo. 328, 32 S.W. 1149; State v. Fischer, 124 Mo. 460, 27 S.W. 1109; State v. Jackson, 336 Mo. 1069, 83 S.W. (2d) 87. (3) There was no substantial evidence that Sam Hickman had any money on his person at the time he left his home on the night of January 9, 1946, to go to the scene of the alleged robbery. Therefore, there was no substantial evidence that any money or other property was taken from his person. Accordingly, the State failed to prove the commission of a larceny, an essential ingredient of robbery, and thereby failed to establish the corpus delicti, and further failed to connect the appellant with the crime, if any. Therefore the trial court erred in overruling the appellant's motion for a directed verdict at the close of the evidence for the State and again at the close of all the evidence. State v. Conway, 171 S.W. (2d) 677, 351 Mo. 126. State v. Lackland, 37 S.W. 812, 136 Mo. 26; State v. Gartrell, 171 Mo. 489, 71 S.W. 1045; State v. Wade, 306 Mo. 457, 268 S.W. 52. (4) The Honorable Tom R. Moore, Judge of the 31st Judicial Circuit of Missouri, was entirely without jurisdiction to try this cause, for the reason that he was not transferred to the Circuit Court of Phelps County, Missouri, in accordance with the provisions of Section 6 of Article 5 of the Constitution of Missouri for 1945, which Section required the Supreme Court to make necessary transfers of judicial personnel. Said Section 6 of said Article 5 of the Constitution of 1945 is self-enforcing and renders any statute which purports to enable the regular judge of the circuit court to call in the judge of another circuit to preside at the trial of a cause unconstitutional, null and void. Laws, 1945, p. 60; Sec. 6, Art. 5. Constitution of Missouri, 1945; Rules of the Supreme Court of Missouri, 11.03; State v. Waltner, 169 S.W. (2d) 697, 350 Mo. 1021. (5) The court failed to instruct the jury on the law covering aiding, abetting, assisting or encouraging an act, whether by words, gestures, look or signs. The court failed to instruct that the mere presence of a person at the commission of a felony or other wrongful act does not of itself render a person liable as a participator therein. In failing so to instruct, the court failed to instruct the jury on all the law of the case and thereby committed reversible error. State v. Johnson, 111 Mo. 578, 20 S.W. 302; State v. Friedman, 313 Mo. 88, 280 S.W. 1023; State v. Massey, 274 Mo. 578, 204 S.W. 541. (6) The trial court committed reversible error in permitting witness Tom Brackett, on behalf of the State, to testify his conclusion that the appellant was an "outlaw"; and that witness was afraid of appellant, all of which was done over the objections and the exceptions of the appellant. This testimony of Tom Brackett was a mere conclusion of the witness, was not based upon any facts in evidence, and was highly inflammatory and prejudicial to the rights of the appellant. State v. Shipley, 174 Mo. 512, 74 S.W. 612; State v. Pinkston, 336 Mo. 614, 79 S.W. (2d) 1046; State v. Corbin, 186 S.W. (2d) 469. (7) It was prejudicial error for the special prosecuting attorney, Mr. Bradshaw, in his opening statement to the Jury to tell the Jury that the State would prove that, prior to the alleged robbery on January 9, 1946, the appellant's co-defendant, Hayward Fletcher, had no money; and that after said alleged robbery, and on the same date, the said Hayward Fletcher was seen passing ten and twenty dollar bills. That such statement was made in bad faith and so as to prejudice the Jury against this appellant is evidenced by the fact that during the trial, the State made no effort to offer or present any such proof. State v. Rasco, 239 Mo. 535, 144 S.W. 449; State v. Levy, 262 Mo. 181, 170 S.W. 1114. (8) The trial and proceedings below were such that, if the judgement be affirmed, the appellant will be deprived of his liberty without due process of law and contrary to the provisions of the 14th Amendment to the Constitution of the United States. Carter v. Illinois, 329 U.S. 163, 67 S. Ct. 216, 91 L. Ed. 172; Adamson v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903; Lyons v. Oklahoma, 322 U.S. 596, 64 S.C. 1208, 88 L. Ed. 1481; Buchalter v. New York, 319 U.S. 427, 63 S. Ct. 1129, 87 L. Ed. 1492; Hawk v. Olson, 326 U.S. 271, 66 S. Ct. 116, 90 L. Ed. 61; Frank v. Mangum, 237 U.S. 309, 59 L. Ed. 969, 35 S. Ct. 582; Moore v. Dempsey, 261 U.S. 86, 67 L. Ed. 543, 43 S. Ct. 265; Mooney v. Holohan, 294 U.S. 103, 112, 79 L. Ed. 791, 55 S. Ct. 340, 98 A.L.R. 406; Foster v. Illinois, 332 U.S. 134, 63 S. Ct. 1716, 91 L. Ed. 1955; Lisenba v. California, 314 U.S. 219, 86 L. Ed. 166, 62 S. Ct. 280. (9) Prejudicial and reversible error was committed during the testimony of the State's witness, E.E. Simmons, the Sheriff of Laclede County, Missouri, in permitting the witness to identify an envelope in the presence of the Jury, containing currency alleged to have been found at the scene of the appellant's arrest, and in taking from the same envelope, and in the presence of the Jury, a pawn ticket for a revolver, theretofore issued to the appellant. Likewise reversible and prejudicial error was committed by the special prosecuting attorney in the examination of witness Simmons in eliciting from the witness that the appellant, to the knowledge of the witness, did not have a permit to own a revolver. State v. Leonard, 182 S.W. (2d) 548. (10) The trial Court abused its discretion in overruling appellant's application for a continuance and thereby committed reversible error. State v. Wright, 336 Mo. 135, 77 S.W. (2d) 459. (11) The trial court abused its discretion in denying the application and request of the appellant to re-open the trial of the case and produce the testimony of his co-defendant, Hayward Fletcher.

J.E. Taylor, Attorney General, and David Donnelly, Assistant Attorney General, for respondent.

(1) The court did not err in proceeding with the trial of this case notwithstanding the provisional rule in prohibition which was made absolute by the Supreme Court of Missouri in State ex rel. Allison v. Barton, 197 S.W. (2d) 667. State ex rel. Allison v. Barton, 197 S.W. (2d) 667; Section 96, General Code for Civil Procedure; Laws 1943, p. 353; Senate Journal for Monday, July 14, 1947, page 1295; House Concurrent Resolution No. 13, (Senate Journal, page 1120); Utz v. Dorman, 328 Mo. 258, 39 S.W. (2d) 1053; State ex rel. Donnelly v. Searcy, 347 Mo. 1052, 152 S.W. (2d) 8; State v. Thatch, 195 S.W. (2d) 106. (2) Appellant's Point (2) is without merit and cannot be considered on appeal. State v. Burns, 312 Mo. 673, 280 S.W. 1026; State v. Hill 76 S.W. (2d) 1092; 23 C.J., sec. 984, pp. 328, 329; Murry v. State 18 So. (2d) 782; State v. White 14 Atl. (2d) 253; Bloodworth v. State, 131 S.W. 80; State v. Lewis, 118 Mo. 79, 23 S.W. 1082. (3) There is substantial evidence to support the verdict. The court did not err in overruling appellant's motions for directed verdict at the close of the state's evidence and at the close of all the evidence. State v. Allen, 342 Mo. 1043, 119 S.W. (2d) 304; State v. Harris, 324 Mo. 223, 22 S.W. (2d) 802; State v. Peters, 123 S.W. (2d) 34; State v. Gregory, 339 Mo. 133, 96 S.W. (2d) 47; State v. Hancock, 340 Mo. 918, 104 S.W. (2d) 241; State v. Murphy, 345 Mo. 358, 133 S.W. (2d) 398; State v. Reynolds, 345 Mo. 79, 131 S.W. (2d) 552; State v. Debert, 174 S.W. (2d) 205; State v. Affronti, 292 Mo. 53, 238 S.W. 106; State v. Scobee, 331 Mo. 217, 53 S.W. (2d) 245; State v. Taylor, 323 Mo. 15, 18 S.W. (2d) 474; State v. Kelly, 107 S.W. (2d) 19; State v. Willhite, 159 S.W. (2d) 768; State v. Hawkins, 165 S.W. (2d) 644; State v. DePriest, 283 Mo. 459, 232 S.W. 83; State v. Preston, 184 S.W. (2d) 1015; State v. Kaner, 338 Mo. 972, 93 S.W. (2d) 671; State v. Davis, 161 S.W. (2d) 973; State v. Ransom, 340 Mo. 165, 100 S.W. (2d) 294; State v. Riddle, 324 Mo. 96, 23 S.W. (2d) 179. (4) Judge Tom R. Moore had jurisdiction to try the case at bar. Sec. 6, Art. V, Missouri Constitution; Sec. 15, Art. V, Missouri Constitution; Sec. 4040, R.S. 1939; State v. Hudspeth, 159 Mo. 178, 60 S.W. 136; State v. Gillham, 174 Mo. 671, 74 S.W. 859; State v. Huett, 340 Mo. 934, 104 S.W. (2d) 252; State v. Malone, 333 Mo. 594, 62 S.W. (2d) 909. (5) Instruction 1 was proper and correctly stated the law. Assignment of Error No. 31 is without merit. State v. Newland, 285 S.W. 400; State v. Murray, 316 Mo. 31, 292 S.W. 434; State v. Bagley, 339 Mo. 215, 96 S.W....

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