State v. Merrell

• Decision Date: 05 June 1924
• Docket Number: No. 25257.,25257.
• Citation: 263 S.W. 118
• Parties: STATE v. MERRELL et al.
• Court: Missouri Supreme Court

263 S.W. 118

STATE v. MERRELL et al.

No. 25257.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Rehearing Denied June 16, 1924.

Appeal from St. Louis Circuit Court; H. Killoren, Judge.

Charles Merrell and Hugh Pinkley were convicted of murder, and they appeal. Affirmed.

Verne Lacy and John R. Davis, both of St. Louis (John A. Moon, of Springfield, of counsel), for appellants.

Jesse W. Barrett, Atty. Gen. (Ellison A. Poulton, of Canton, of counsel), for the State.

DAVID E. BLAIR, J.

Defendants were convicted of murder in the first degree, and the death penalty was imposed by the jury. They have appealed from the judgment entered upon the verdict.

As the main controversy of fact centers around the identity of defendants as the men who committed the homicide, a very brief statement of the facts attending the killing will suffice. About 10 o'clock a. m., April 22, 1922, three men drove to the building of the Morris Packing Company at Broadway and Pestolozzi streets in the city of St. Louis. Two of the men entered the building, the third man remaining with the automobile. These two men proceeded into the small office room where the company kept some money, and where some of its employés were at work. They presented drawn revolvers, and proceeded to "hold up" the employes therein. Word of what was going on reached three police officers, who were in the vicinity, and they hurried to the building. Officers Mengel and Held stationed themselves outside the door, and Officer Michael O'Connor entered the building. When O'Connor saw the two men robbing the office and its occupants, he fired at them. They returned the fire. and he fell unconscious and soon died. The two robbers then ran out of the building, and a revolver battle WAS fought with Officers Mengel and Held. Mengel was mortally wounded, and Held was slightly wounded. The two robbers then entered the waiting automobile, and the three drove away and escaped. Defendants Merrell and Pinkley and one Robert Manley were subsequently arrested as the three men who committed the robbery and homicide. Merrell and Pinkley were jointly indicted, charged with killing Michael O'Connor, and Manley was indicted separately for the same offense. Manley was used as a witness by the state.

The testimony of Manley, the positive identification of defendants by other witnesses, together with certain circumstantial evidence, tended to show that the two men who entered the office of the Morris. Packing Company and there killed O'Connor were Merrell and Pinkley. Defendants denied their presence at the scene of the homicide, and offered substantial testimony of themselves-and others tending to show they were elsewhere at the time the homicide was committed. The presence of the defendants and their participation in the killing are the only issues of fact upon which any real controversy exists under the evidence.

I. Error is assigned because the trial court permitted the name of Robert Manley to be indorsed upon the indictment after the trial jury had been selected and sworn to try the case, and because the trial court denied defendants' oral motion for continuance upon the ground of surprise. It appears from the bill of exceptions that counsel for defendants were informed a week before the jury was sworn that the state would use Manley as a witness. Defendants' counsel did not deny their actual knowledge of such intended use of Manley. but contended that they had received no legal or official notice of such fact. Defendants offered no evidence upon their oral motion for continuance. The presumption is that, when the indictment was returned, the grand jury had no knowledge that the testimony of Manley would be available to the state upon the trial. State v. Barrington, 198 Mo. loc. cit. 70, 95 S. W. 235. It cannot be said that the state purposely refrained from indorsing upon the indictment the name of the witness for the purpose of taking an undue advantage of defendants. The clear purpose of section 3889, R. S. 1910, is to furnish a defendant in advance with the names of the witnesses who may be used against him at the trial. In the case at bar defendants' counsel had a week's notice that Manley would be used as a witness. It is not the manual act of writing the name of a witness upon the indictment, but the fact of knowledge that he will be used, which is important. No showing was made that defendants were prejudiced in any way other than the oral statement of counsel that they were surprised. It is not necessary to consider the facts that the motion for continuance was not in writing or that no motion to quash the indictment was filed. The assignment is overruled.

II. Defendants complain of error of the trial court in permitting Officer Charles Lanigan, a state witness, to testify to a conversation had by said officer with William C. North. one of defendants' witnesses. The court heard the evidence over defendants' objection, and then upon defendants' motion struck it out and instructed the jury to disregard the same. Defendants then asked to have the jury discharged on the ground that the testimony, even though stricken out, had served the purpose of poisoning the minds of the jury and prejudicing the defense. This was overruled, and defendants excepted. The testimony given and thus stricken out was as follows:

"A. His reply, as best I remember it, was, `Well, I didn't know what the fellows were doing here this morning, but I knew there was something going on, and by seeing the paper this afternoon I know what it is.' In fact, he had a copy of, I think it was, the Star in his hand, He said, `I am awful sorry we moved our paint shop here. We have got a lot of respectable trade comes from the west end, and I think we are going to lose it in view of what has transpired here.' I says, `What do you know about this mob around here?' He said, `I don't know a thing in the world about them.' He says, `I attend strictly to my own business, stay upstairs and don't associate with them. I don't mingle with them at all, because I have seen lots of suspicious things down there. I don't know what is going on down there, but I know it don't look right.' And the morning of the arrest Mr. North wasn't in his garage, he was up in his quarters upstairs, because I interviewed him about twice upstairs, and he was not downstairs during any of the excitement. There was a period of an hour and a half there in which we were making the different arrests." (Italics ours.)

The objection made to the question was that it was offered for the purpose of impeaching North, and that no foundation had been laid for the question. The withdrawal of testimony improperly admitted, coupled with an instruction to disregard such testimony, ordinarily cures the error in its admission. State v. Laycock, 141 Mo. loc. cit. 279, 42 S. W. 723.

Defendants make much of this alleged error, and picture the irreparable damage done by the jury being permitted to hear the testimony, even though they were plainly told to disregard it. Conceivably great prejudice might be induced by such conduct, but It does not here appear. The conversation detailed by Lanigan occurred May 19, 1922, after defendants had been arrested. What North said concerning what was going on in the garage related to something which apparently occurred that morning and not on the morning of the killing, which was some four weeks previously. His alleged statement as to being sorry that he had moved there evidently related to the notoriety expected to follow his occupancy of the same building where Merrell and Manley ran a garage, and where Pinkley, at least, was arrested. The only thing in the conversation which could be said to reflect upon the defendants is the portion we have italicized. This denoted no opinion on North's part of defendants' guilt of killing O'Connor, but rather tended to reflect generally upon defendants' conduct about the garage.

We have examined the cases relied upon by defendants and find that the evidence admitted, and subsequently stricken out in those cases was clearly most prejudicial. In State v. Mix, 15 Mo. 153, the objectionable testimony was that defendant, had told a certain witness he had been in the Kentucky state prison. Mix was convicted of passing counterfeit money, and the testimony tended to show his bad character in a case where good character might have argued his innocent intent in passing the bill. In State v. Wolff, 15 Mo. 172, proof was made of other stolen property found in a house where defendant was merely employed as a work hand. In State v. Daubert, 42 Mo. loc. cit. 246, the objectionable testimony was concerning different acts of larceny by defendant. In State v. Jaeger, 66 Mo. loc. cit. 180, the testimony was that defendant's wife called on the deceased and proposed to have the matter hushed up. It does not appear that the trial court there withdrew the testimony from the consideration of the jury. In State v. Rothschild, 68 Mo. loc. cit. 56, the objectionable testimony related to a witness haying been tampered with and induced to leave the country without directly connecting defendant with such witness tampering.

Here the alleged statement of North may have referred to any misconduct under the sun other than the sort of crime with which defendants stood charged. Under the circumstances we conclude that defendants were not prejudiced by the improper admission of the testimony, especially in view of the court's subsequent action in striking it out and clearly telling the jury in writing:

"Now, gentlemen of the jury, I want to caution you gentlemen that the evidence given by this officer just now has been ordered stricken from the record. You are not to consider the evidence that he has just given in your deliberations in this case. You understand that, gentlemen?"

The assignment is overruled.

III. Error is assigned in that Dr. Fisher, an autopsy physician connected with the coroner's...