State v. McGee

Citation83 S.W.2d 98
Decision Date25 April 1935
Docket NumberNo. 33947.,33947.
PartiesTHE STATE v. WALTER H. McGEE, Appellant.
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. Hon. Allen C. Southern, Judge.

AFFIRMED.

James M. Rader and Lillie Knight for appellant.

(1) The penalty assessed by the jury in its verdict was grossly excessive and not based on the weight of the evidence, and was the result of passion, prejudice and partiality. State v. Harmon, 296 S.W. 396; State v. Prendible, 165 Mo. 353. (2) The separation of the jury during the progress of the trial. State v. Orrick, 106 Mo. 111, 17 S.W. 176; State v. Hayes, 19 S.W. (2d) 883; State v. Gray, 100 Mo. 523, 13 S.W. 806; Sec. 3682, R.S. 1929. (2) The court erred in permitting Judge McElroy and Miss McElroy to testify as to secondary evidence as to photostatic copies of letters purported to have been sent to him by the alleged kidnapers, after they both testified that they were not present when the photostatic copies were made and did not see them made. (3) The court erred in rejecting proper questions in cross-examination of Judge McElroy effecting his credibility as a witness. State v. Davis, 225 S.W. 707; State v. Long, 201 Mo. 675, 100 S.W. 587; State v. Potts, 239 Mo. 413, 144 S.W. 495. (4) The court erred in reprimanding defendant's attorney in the presence of the jury. State v. Davis, 225 S.W. 707; State v. Wright, 114 S.W. 178. (5) The court erred in permitting the State to introduce the guns offered in evidence over the objections of the defendant, in that no foundation of any kind had been laid, to show how said guns came into the possession of the State, or to identify them with the offense charged and for the reason that the introduction of such guns did tend to prejudice the jury against defendant. State v. Moxley, 102 Mo. 374; State v. Thomas, 99 Mo. 235. (6) That the court erred in not granting defendant a new trial on the ground that the jury panel was improperly drawn, in that, the entire jury panel was Democratic and eleven members of the panel were employed in positions known as "political jobs," that is, directly or indirectly employed in positions obtained by political appointments, which appointments were obtained because of their affiliation with the local democratic organization, in which Judge McElroy is prominently identified. (7) The court erred in not granting defendant a new trial for the reason that the court, by his manner, his actions, and his language, so prejudiced the jury that it was impossible for them to give defendant a fair trial, in that, the court on numerous occasions exhibited impatience with defendant's counsel, sustained objections on its own motions where no objections had been made by the State, and generally exhibited an attitude showing plainly that the court felt defendant was guilty. State v. Wright, 114 S.W. 178; State v. Jensen, 186 N.W. 581; 17 C.J. 297.

Roy McKittrick, Attorney General, and Frank H. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in refusing a new trial on the ground that the verdict was a result of passion and prejudice. State v. Copeland, 71 S.W. (2d) 746; State v. Golden, 51 S.W. (2d) 91. (2) The court did not err in refusing a new trial on the ground that members of the jury read the newspapers during deliberation. State v. Shawley, 67 S.W. (2d) 74; State v. Sebastian, 215 Mo. 58; State v. Page, 212 Mo. 224. (3) The court did not err in holding that under Section 4020, Revised Statutes 1929, the crime of the appellant of kidnaping for ransom occurred in Jackson County, Missouri. Secs. 4020, 4021, R.S. 1929; State v. Sinovich, 46 S.W. (2d) 877; State v. Pepe, 46 S.W. (2d) 862; State v. Gillman, 44 S.W. (2d) 446; State v. Peak, 67 S.W. (2d) 74. (4) The court did not err in refusing a new trial because the jurors telephoned for necessary wearing apparel. State v. McVey, 66 S.W. (2d) 857; State v. Sebastian, 215 Mo. 90; State v. Page, 212 Mo. 224; State v. Cushenberry, 157 Mo. 168; State v. Shawley, 67 S.W. (2d) 74. (5) The court did not err in refusing a new trial on the ground that the verdict was excessive. Sec. 4020, R.S. 1929; State v. Copeland, 71 S.W. (2d) 746; State v. Preslar, 300 S.W. 687. (6) The court did not err in refusing a new trial because of alleged improper argument by the prosecuting attorney. State v. Copeland, 71 S.W. (2d) 746; State v. Eason, 18 S.W. (2d) 71; State v. Seward, 247 S.W. 154. (7) The court did not err in permitting Miss McElroy to testify that she knew the man outside of the bathroom was the appellant. State v. Merricks, 18 S.W. (2d) 23; State v. Stogsdill, 23 S.W. (2d) 22. (8) The court did not err in permitting Miss McElroy to state that Exhibit 7 fairly represented the condition of the room where she was kept chained. State v. McBride, 12 S.W. (2d) 46; State v. O'Reilly, 126 Mo. 597; 16 C.J. 744. (9) The court did not err in permitting the introduction of photostatic copies of letters written by Miss McElroy to her father. 16 C.J. 744; State v. Smith, 252 S.W. 662. (10) The court did not err in permitting Judge McElroy to state that he identified the appellant by his voice. State v. Bell, 300 S.W. 504; State v. Hall, 7 S.W. (2d) 1001. (11) The court did not err in permitting Judge McElroy to testify regarding Exhibit 9, which was part of the ransom money. (12) The court did not err in not permitting appellant to attack the credibility of the witness Judge McElroy by alleged statements as to the running of slot machines. State v. Aurentz, 263 S.W. 178; State v. Ancel, 256 S.W. 764; State v. Nave, 286 Mo. 309. (13) The court did not err in permitting the introduction of Exhibits 12, 13 and 14 on the part of the State. State v. O'Reilly, 126 Mo. 597; State v. Cummings, 189 Mo. 626; 16 C.J. 744. (14) The court did not err in permitting the introduction of Exhibits 21 and 22 on the part of the State. State v. Sinovich, 46 S.W. (2d) 877; 16 C.J. 618. (15) The court did not err in refusing a new trial on the ground that the jury panel was improperly drawn. State v. Jackson, 227 S.W. 647; State v. Grant, 152 Mo. 57; State v. Wiley, 109 Mo. 439. (16) The court did not err in refusing a new trial on the ground of newly discovered evidence. State v. Maness, 19 S.W. (2d) 628; State v. Sherry, 64 S.W. (2d) 238. (17) The court did not err in giving Instructions 1, 2, 3, B, 4 and 5 on the part of the State. State v. Mosley, 22 S.W. (2d) 785; State v. Sinovich, 46 S.W. (2d) 877; State v. Hedgepeth, 28 S.W. (2d) 160. (18) The general assignments of error numbered 3, 5, 20 and 23 in appellant's motion for new trial are insufficient. Sec. 3735, R.S. 1929; State v. Francis, 52 S.W. (2d) 552; State v. Thompson, 29 S.W. (2d) 67; State v. Fisher, 46 S.W. (2d) 55; State v. Aguelera, 33 S.W. (2d) 901; State v. Moore, 36 S.W. (2d) 928; State v. Wampler, 58 S.W. (2d) 26; State v. Goodwin, 61 S.W. (2d) 960; State v. Shawley, 67 S.W. (2d) 74; State v. Smith, 68 S.W. (2d) 696; State v. Copeland, 71 S.W. (2d) 746. (19) The court did not err in refusing to grant a new trial on the ground that there was a variance between the information and proof. State v. Fike, 24 S.W. (2d) 1027; State v. Broyles, 295 S.W. 554. (20) The court did not err in refusing a new trial on the ground that the jurors concealed the fact of prejudice and former opinion. State v. Stogsdill, 22 S.W. (2d) 23.

BOHLING, C.

Walter H. McGee was found guilty of kidnaping Mary McElroy for ransom. The verdict of the jury assessed his punishment at death. He appeals from the judgment thereon.

The members of the McElroy household consisted of Judge Henry F. McElroy, his daughter Mary, his son Henry F., Jr., and the housekeeper Heda Christensen. They resided at the family home in Kansas City, Jackson County, Missouri. On May 27, 1933, about eleven o'clock in the forenoon, the daughter and housekeeper were alone at the home, the daughter bathing in a bathroom on the second floor of the residence. The front door was open but the screen was locked. Answering the doorbell, the housekeeper was informed by the man at the door (she identified him as appellant at the trial) that he had a package for Miss McElroy. There was an automobile parked in front of the residence, with another man, later identified as Clarence Stevens, at the wheel. The housekeeper conveyed the message to Miss McElroy, who refused to accept the package. Upon being informed Miss McElroy would not accept the package, appellant took a gun from underneath his coat and, threatening to shoot through the door unless it was opened, he and Stevens, each flourishing guns, entered the house. Inquiring as to who was home and the whereabouts of Miss McElroy, the housekeeper informed them she was bathing. They told the housekeeper they were kidnapers, wanted Miss McElroy, and forced the housekeeper to accompany them upstairs. Miss McElroy, hearing the commotion and the approach of a man's footsteps, jumped out of the bathtub and succeeded in locking the bathroom door just as someone took hold of the knob. After appellant and Stevens threatened to shoot through the door and kill Miss McElroy a robe was obtained and Miss McElroy came out. She was informed she was being kidnaped for ransom, was permitted to dress (appellant and Stevens guarding the two doors of her room), and ordered to the waiting automobile, where she was compelled to lie on the floor between the front and rear seats, with a blanket over her.

While Miss McElroy was dressing, appellant, who acted as spokesman throughout, instructed the housekeeper to inform Judge McElroy they wanted $60,000 and to keep the press and police out of it or they would demand $100,000 and would not return "Mary." He also threatened death if any attempt be made to identify them. Judge McElroy was informed of the events as soon as the automobile departed, and, proceeding home immediately, made arrangements for the necessary funds and the immediate delivery of any mail addressed to him.

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