State v. Miller

• Decision Date: 14 December 1932
• Docket Number: No. 32409.,32409.
• Citation: 56 S.W.2d 92
• Court: Missouri Supreme Court
• Parties: THE STATE v. DAVID A. MILLER, Appellant.

56 S.W.2d 92

THE STATE v. DAVID A. MILLER, Appellant.

No. 32409.

Supreme Court of Missouri, Division 2.

December 14, 1932.

Appeal from St. Charles Circuit Court. — Hon. Edgar B. Woolfolk, Judge.

AFFIRMED.

Claude S. Tuttle and Osmond Haenssler for appellant.

Stratton Shartel, Attorney-General, for respondent; Sid C. Roach of counsel.

(1) The first assignment of error in the motion for new trial, "the verdict of the jury is against the law; against the evidence; against the law under the evidence," is too general, and must be ruled against appellant for that, if no other reason. Sec. 4079, R.S. 1919; Sec. 3735 R.S. 1929; State v. Standifer, 316 Mo. 52. However, it may be said in passing that appellant makes no point, nor challenges the correctness of a single instruction given by the trial court. The evidence without question abundantly supports the verdict; and the information is sufficient as shown by the following authorities. Sec. 3982, R.S. 1929; State v. Ferguson, 278 Mo. 131; State v. Long, 253 S.W. 733; State v. Bailey, 190 Mo. 276; State v. Wilson, 231 S.W. 599. Defendant Miller testified that nothing was said about a preliminary hearing, except the prosecuting attorney, in his presence, informed the justice that "We waived a preliminary hearing." If the court record and the testimony of the court officials is to be given verity, the defendant knowing his right to a preliminary hearing, waived his right thereto, which he had a right to do. Sec. 3848, R.S. 1919; Sec. 3503, R.S. 1929; State v. Carey, 311 Mo. 461. Discharge of jury without verdict does not constitute former jeopardy. State v. Scott, 45 Mo. 302; State v. Copeland, 65 Mo. 497; State v. Dunn, 80 Mo. 681; State v. Jeffors, 64 Mo. 376. (2) The trial court did not err in overruling defendant's motion to discharge the jury on the alleged ground that juror. Henry Hinnah was in some degree related by marriage to Paulina Duebbert, deceased, and by reason thereof incompetent as a juror. There was no showing of any such relationship or circumstances as to justify even an inference that the alleged relationship might influence the juror's verdict, or that he knew of the alleged remote relationship by marriage when the jury was examined on voir dire examination. Sec. 4011, R.S. 1919; State v. Stewart, 296 Mo. 12; State v. Lewis, 323 Mo. 1070; State v. Jones, 64 Mo. 391; State v. Bounds, 216 Mo. App. 236.

WESTHUES, C.

On October 26, 1929, the Prosecuting Attorney of St. Charles County filed a verified information in the circuit court, charging appellant in this case and Norman E. Tanner with the crime of murder in the first degree in that they shot and killed one Paulina Duebbert on October 22, 1929. Norman E. Tanner entered a plea of guilty and was sentenced, by the court, to life imprisonment. Appellant was duly arraigned and refusing to plead the court entered a plea of not guilty for him. At the trial, a jury found appellant guilty and assessed his punishment at death. A motion for a new trial was filed, overruled by the court and appellant sentenced. From this sentence an appeal was taken.

We find in the State's brief a fair statement of the case. Omitting a small portion thereof, which we deem argumentative it, reads as follows:

"Paulina Duebbert, deceased, whom defendant is alleged to have shot and killed, was a single person, aged about forty-eight, owned and resided on a farm in St. Charles County. Her hired man August Meyer, who was also shot had been with her continuously on the farm for fourteen years, and only these two resided on the farm. Miss Duebbert was last seen alive doing chores on her farm late of the evening of August 22, 1929. At about midnight of that date a telephone call was received at St. Charles by Doctor L.E. Belding, a physician, and also Coroner of St. Charles County, from August Meyer, the man on Miss Deubbert's place, that she had been shot and killed and that he was badly wounded: Doctor Belding, the Sheriff and others immediately went to the Duebbert farm, some of the neighbors had `listened in on the telephone call' and also went over to the Duebbert farm. Upon arrival Doctor Belding and the Sheriff found Meyer in the house and that he had been shot three times with a pistol; they found the dead body of Miss Duebbert in the lot near a fence and straw stack. She had a bullet wound in palm of hand, and had also been shot through the mouth, the bullet coming out at the base of the brain and fired at close range.

"At the trial of the case it was developed that defendant Miller and his co-defendant Tanner, had been engaged in cutting walnut logs on the Duebbert farm a year and a half or two years previous to the killing; that it was generally believed and known to both the defendants that Miss Duebbert kept considerable money about the place, and did no banking business. That Miller had paid her in cash for the logs he cut, and both defendants were familiar with the Duebbert premises and the roads leading there and from; that on the day before the killing, viz., August 21, 1929, Miller and his codefendant, Norman E. Tanner, left Boonville, Missouri, about 8 A.M., on highway forty, with the avowed purpose of robbing Miss Duebbert. They first drove to St. Charles, put their automobile, which belonged to Miller, in a garage, thence to St. Louis and on to East St. Louis by street car, where they each purchased a pistol and cartridges, Miller buying a nickle-plate Ivers-Johnson .38-caliber, Tanner buying a Bull Dog Pistol .38 caliber. Both of these pistols and some of the cartridges were found later on the Duebbert place, showing to have been recently fired. Miller and Tanner were identified as purchasers, the pistols identified by serial number and record kept by the seller. Miller and Tanner then returned to St. Louis, bought a pair of coveralls each, a pair of canvas gloves each, and several red and blue handkerchiefs, returned to St. Charles, bought a quantity of sandwiches, got their car out of the garage, stopped at Wentzville on highway forty, buying a water jug, and thence they turned off of highway forty and drove by the Chappel road to the Duebbert farm where they remained in hiding all day of August 22, 1929. At about six o'clock they went on a reconoitering trip down to the Duebbert place, got a drink at the well and not seeing anyone, returned the way they had come back to the car, then again approached the house from the rear and observed Miss Duebbert and Mr. Meyer busy about the house doing chores. They then returned to the car, each getting their pistol, Miller taking a flash light, as night by this time was approaching. Upon nearing the place it was agreed between them that Miller was to hold up Meyer and Tanner was to hold up Miss Duebbert. It appears that upon approaching the place Miss Duebbert was down at the hog lot, while Meyer, a little distance removed, at the barn, so Miller started to the barn for Meyer, and while Tanner started for Miss Duebbert. Just as Miller was reaching the barn he heard Miss Duebbert scream, and immediately Meyer came around the barn and was held up by Miller and directed to march to where Miss Duebbert and Tanner, were. Upon the four coming together, both Meyer and Miss Duebbert were directly in front of Miller. It was then noticed by Meyer that Miss Duebbert appeared to have some blood on her face, and it developed in evidence at Coroners inquest she had a bruise or gash on her forehead. Miss Duebbert was screaming — and Miller and Tanner say was striking at Miller with a knife and he, Miller, thereupon shot her dead. Tanner then shot Meyer who fell to his knees. He then shot him twice more. There is no evidence the attempt to rob was carried out. It appears Miller and Tanner after the shooting heard some noise, became alarmed and returned to their automobile in the woods, throwing their guns, coveralls, gloves, handkerchiefs, and flashlight in the woods near their car, and returned to Boonville, arriving there about 1 o'clock A.M., on August 23, 1929. On August 24th Miller and Tanner left Boonville, went to Dayton, Ohio, from there to Richmond, West Virginia, thence to Indianapolis, thence to Pitcher, Oklahoma, and from there Miller came to Buffalo, Missouri, where he was arrested. Tanner was also arrested and both lodged in jail at St. Charles on September 21 or 22. Tanner was the first to make a confession, enter a plea of guilty and given a life sentence. After some questioning Miller made, in the presence of the officers and others, a confession that he and Tanner committed the crime, giving the details substantially as above set forth. However, at the trial Miller repudiated his confession, saying it was brought about by duress... Tanner, who voluntarily confessed, was used as a witness at the trial. The statement of Miller and Tanner as to how the crime was committed was corroborated by other evidence in almost, if not every important detail ..."

Appellant's attorneys have not seen fit to favor us with a brief. We will take the motion for a new trial and dispose of the points therein preserved for our consideration.

[1] The first contention made is that appellant was not accorded a preliminary hearing as required by law, therefore, the prosecuting attorney was, under the provisions of Section 3503, Revised Statutes 1929, without authority to file an information in the circuit court. Section 3503, supra, contains a proviso that "A preliminary examination shall in no case be required where same is waived by the person charged with crime." In any case where a defendant waives a preliminary hearing such hearing is dispensed with and an information may then be filed in the circuit court. [State v. Piro, 246 S.W. 928; State v. McBride, 12 S.W. (2d) l.c. 48 (6).] In the present case the appellant contends that he did not waive a hearing. The trial court heard evidence on the question and decided that a preliminary hearing had been waived.

The justice of...