State v. Menz

Decision Date21 June 1937
Docket NumberNo. 34591.,34591.
Citation106 S.W.2d 440
PartiesTHE STATE v. OTTO MENZ, Appellant.
CourtMissouri Supreme Court

Appeal from Cape Girardeau Circuit Court. Hon. Robert I. Cope, Special Judge.

AFFIRMED.

J. Grant Frye for appellant.

(1) The motion to quash the information should have been sustained, because two indictments, against the same individual, filed simultaneously, charging the same offense, are mutually destructive. Sec. 3550, R.S. 1929; State v. Mayer, 209 Mo. 391, 107 S.W. 1085; State v. Melvin, 166 Mo. 565, 66 S.W. 534; State v. Webb, 74 Mo. 333; State v. Smith, 71 Mo. 45; State v. Williams, 191 Mo. 205, 90 S.W. 448. (a) Defendant's plea to the jurisdiction of the court on account of the failure of the court to name the judge before whom the cause was sent when the change of venue was taken, and the leaving of the name of the judge in blank to be filled in some other time by the clerk, failed to divest jurisdiction of Judge Kelly and to vest it in Judge Cope, the order not being completed, thereby rendering the subsequent acts of the clerk in filling in the blanks, void. Sec. 3651, R.S. 1929; State v. Hudpeth, 159 Mo. 178, 60 S.W. 136; State v. Silva, 130 Mo. 440, 32 S.W. 1007; State v. Long, 209 Mo. 366, 108 S.W. 35. (2) Acts and declarations of a conspirator, made after the consummation of the crime, are not admissible against the defendant on trial; and in this case the acts and declarations of defendant Stroup on his trip from Arkansas with the officers, made several days after the slaying, were hearsay and inadmissible. State v. Frisby, 204 S.W. 3; State v. Kennedy, 177 Mo. 98, 275 S.W. 979; State v. Buckley, 318 Mo. 17, 298 S.W. 777; State v. Harris, 150 Mo. 56, 51 S.W. 481; State v. Priesmeyer, 237 Mo. 335, 37 S.W. (2d) 425. (a) The acts and declarations of an alleged conspirator, made at any time, are inadmissible unless a conspiracy is actually shown. State v. Saogsdill, 23 S.W. (2d) 22; State v. Loeb, 190 S.W. 299; State v. Reich, 293 Mo. 415, 239 S.W. 835; State v. Fields, 234 Mo. 615, 138 S.W. 518. (b) Instructions 2 and 3 should not have been given in that they declared abstractly that all persons acting together with common intent are equally guilty of a crime and that all persons who counsel and incite others to commit a crime are equally guilty, as not only in this an abstract declaration of law, but there is no evidence in the record to sustain the submission of such a proposition to the jury. (3) It is reversible error for the State to be permitted to put in evidence proof as to defendant's morality, or general moral character, or reputation for such traits, unless the defendant first has introduced evidence of good character for such traits; and in this case the admission of such proof by the State, without defendant having first produced such proof, requires the case to be reversed. State v. Williams, 87 S.W. (2d) 175. (4) A statement or confession made to an officer of the law by a person accused of a crime after his arrest, before being admissible in evidence against him, if the question be raised, must be shown to be entirely voluntary. State v. Thomas, 250 Mo. 189, 157 S.W. 330; State v. Hart, 292 Mo. 74, 237 S.W. 473. (a) In passing upon the question of whether or not the alleged confession was voluntary, the court and jury must consider the age, character, disposition, education, and experience of the accused, along with all the other facts and circumstances surrounding the making of the alleged confession. State v. Hart, 292 Mo. 74, 237 S.W. 473; State v. Meyer, 238 S.W. 457; State v. Thomas, 250 Mo. 189, 157 S.W. 330. (b) Refusal of an officer, who has arrested a party without warrant and against whom no charge was filed by the time of the expiration of twenty hours, and which person has been refused the opportunity to consult with counsel, or other persons, or friends, or relatives, renders any statements or confessions made by such party to such officers, after the expiration of twenty hours, to be presumptively involuntary, as a matter of law. Sec. 3952, R.S. 1929. (c) Where defendant was in jail at the time of the alleged confession and it was made to an officer of the law, the law presumes that a confession thus made is involuntary. State v. White, 316 Mo. 576, 292 S.W. 411; State v. Thomas, 250 Mo. 189, 157 S.W. 330; State v. Brown, 73 Mo. 631; 16 C.J. 726. (d) Confession of a defendant secured by officers by promises, duress, and other influence is involuntary, and once any such influence is shown to exist, it is presumed to continue until the State has affirmatively shown that the influence in fact no longer exists. State v. Nagle, 326 Mo. 661, 32 S.W. (2d) 596; State v. Condit, 307 Mo. 393, 270 S.W. 286. (e) A confession, although not made in the presence of an officer and though made to some person not an officer, but induced on account of duress, coercion, promises, or other influences created by an officer of the law, made while the defendant was still under those influences, is involuntary and defendant's instruction so advising the jury should have been given. State v. Nagle, 326 Mo. 661, 32 S.W. (2d) 596; State v. Hart, 292 Mo. 74, 237 S.W. 473; State v. Condit, 307 Mo. 393, 270 S.W. 286.

Roy McKittrick, Attorney General, William W. Barnes and Olliver W. Nolen, Assistant Attorneys General, for respondent.

(1) The information is in proper form. It is not error to charge murder in the first degree under a straight information without alleging that the murder was committed in perpetration of robbery. State v. Messino, 30 S.W. (2d) 750; State v. Nasello, 325 Mo. 442; State v. Meadows, 51 S.W. (2d) 1033. (2) The verdict states the degree of murder of which appellant was found guilty, and is in proper form. State v. Baublits, 27 S.W. (2d) 16; State v. Likens, 231 S.W. 578; State v. Barbata, 80 S.W. (2d) 865. (3) The State having proven the corpus delicti, and the court having ruled that the statements, and confession made by defendant were voluntary, a submissible case was made for the jury. State v. Wooley, 215 Mo. 620; State v. Knowles, 185 Mo. 141; State v. Copeland, 71 S.W. (2d) 746; State v. Thompson, 64 S.W. (2d) 277. (4) The motion to quash the information was properly overruled by the court. The second information automatically nullified the first. Sec. 3550, R.S. 1929; State v. Eaton, 75 Mo. 586; State v. Williams, 191 Mo. 205; State v. Payne, 223 Mo. 116. (a) The plea in abatement was properly overruled. State v. Ancell, 62 S.W. (2d) 443; State v. Smith, 222 S.W. 455. (5) It was not error for the court when the change of venue was taken to instruct the clerk to fill in the name of the judge who was to assume jurisdiction of the cause. Johnson v. Reagan, 178 S.W. 159; State ex rel. v. Williams, 136 Mo. App. 330; State v. Gonce, 87 Mo. 634. (6) A conspiracy was shown by circumstances; it was not necessary to show conspiracy by direct evidence. State v. Buckley, 318 Mo. 17. (7) The statement or confession made by defendant was voluntary. State v. McCann, 47 S.W. (2d) 95; State v. Robinson, 263 Mo. 318. (a) The fact that defendant was held more than twenty hours without a charge being filed against him or a warrant issued, would not render the confession involuntary or show any duress. State v. Smith, 59 S.W. (2d) 722; State v. Johnson, 316 Mo. 86; State v. Hoskins, 36 S.W. (2d) 909. (b) It is the duty of the State to show that a confession or statement is voluntary, but in the instant case defendant asked and was permitted to assume the burden of proving that it was involuntary, and a full investigation was permitted to go into the evidence. State v. Thomas, 250 Mo. 189. (c) It is not error for officers to question a person suspected of a crime. State v. McGuire, 39 S.W. (2d) 520; State v. Wooley, 215 Mo. 620. (d) Because a statement or confession is made to officers of the law, the court will not assume that it was made under duress or was involuntary. State v. McGuire, 39 S.W. (2d) 520; State v. Hoskins, 36 S.W. (2d) 909. (e) The confession or statement of defendant in the instant case, according to the evidence adduced on the part of the defendant himself does not show that it was made under duress, coercion or promises of leniency and was therefore admissible. State v. Hoskins, 36 S.W. (2d) 909; State v. Midkiff, 278 S.W. 681. (f) There was no evidence showing that defendant made the first statement under duress, coercion, promises of leniency, or other influences showing that it was involuntarily made, and the second statement was likewise shown to be free from duress, coercion or promises; hence, both statements or confessions were admissible. State v. Nagle, 32 S.W. (2d) 596. (8) Defendant, by failing to object to the part of the testimony offered by the State as to defendant's reputation for morality did not preserve the point for this court; the objections made by defendant as to defendant's reputation for morality were not specific enough so that this court can consider the same. State v. McGuire, 39 S.W. (2d) 520; State v. Miller, 17 S.W. (2d) 353; State v. Vanarsdall, 273 S.W. 733.

LEEDY, P.J.

Appellant was tried in the Circuit Court of Cape Girardeau County, where he was found guilty of murder in the second degree. By the verdict his punishment was assessed at fifteen years in the State penitentiary. Judgment was entered, and sentence pronounced accordingly, and he appeals.

The case originated in Scott County, where the offense is alleged to have been committed on or about December 7, 1933. The information charged appellant and his wife, Edith, with murder in the first degree in having killed one William F. Roseme by beating him over the head and body with an iron box opener. (One Bob Stroup was also charged with the murder, but by a separate information.) On their application a change of venue was granted, and the venue awarded to the Cape Girardeau Circuit Court. There a severance was ordered, which was followed by the...

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