State v. Morefield
| Decision Date | 17 August 1938 |
| Docket Number | 35369 |
| Citation | 119 S.W.2d 315,342 Mo. 1059 |
| Parties | The State v. Dennis Morefield, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ozark Circuit Court; Hon. Robert L. Gideon Judge.
Affirmed.
Phil M. Donnelly, Barney Reed, Morgan Moulder, Fred Stewart and J. Andy Zenge, Jr. for appellant.
(1) The trial court erred in failing to instruct the jury on all the law in the case, and especially erred in failing to instruct the jury on murder in the second degree. Sec. 3681, R. S 1929; State v. Banks, 73 Mo. 597; State v Starr, 244 Mo. 176; State v. Conley, 255 Mo. 200; State v. Goode, 220 S.W. 856; State v. Williams, 274 S.W. 51; State v. Lambert, 300 S.W. 709; State v. Cantrell, 234 S.W. 802; State v. Lindsey, 62 S.W.2d 422; State v. Chicks, 221 S.W. 16. The testimony of the State, in its most favorable light, did not show that a robbery was perpetrated or attempted to be perpetrated. The testimony of Clarence Woolery, witness for the State, showed that they were going to "get" some money and his testimony did not show that the defendant, Dennis Morefield, was involved in any way in a conspiracy with the witness Woolery, or Huff or Henry Morefield in the perpetration of attempt to perpetrate a robbery. It is the duty of the court to instruct the jury on all the law of the case, and failure to instruct on a lesser degree of crime than that charged in the indictment, where the evidence shows a lesser degree, is fatal error and said point is saved for review on appeal if called to trial court's attention in motion for new trial, even though no instruction was requested on said lesser degree. State v. Burrell, 252 S.W. 711; State v. Gilreath, 267 S.W. 884; State v. Fine, 23 S.W.2d 9; State v. Perno, 23 S.W.2d 89; State v. Whitley, 36 S.W.2d 938; State v. Green, 55 S.W.2d 966; State v. Craft, 92 S.W.2d 632. (2) The court erred in giving Instruction 1, on the part of the State, wherein the court erroneously defined murder in the first degree as follows: "First, murder in the first degree is the killing of any human being willfully, deliberately, premeditatedly and with malice aforethought, or any homicide committed in the perpetration or attempt to perpetrate any robbery or other felonies." State v. Hayes, 262 S.W. 1037; State v. Lindsey, 62 S.W.2d 425; State v. Glover, 50 S.W.2d 1052; State v. Robinett, 279 S.W. 700; State v. Moore, 33 S.W.2d 906; State v. Sharpe, 34 S.W.2d 78; State v. Kauffman, 46 S.W.2d 847; State v. Batson, 96 S.W.2d 390. (3) The court erred in overruling defendant's motion and application made at 4:30 P. M., May 20, 1936, and second motion and application made at 5:00 P. M. on said date, both motions and applications asking and requesting the court not to hold a night session of court, and asking for an adjournment until 9:00 A. M. of the following day for the reason that a material witness for the defendant, one Karl W. Greenwood, Sheriff of Camden County, although subpoenaed as a witness for defendant was not present at time motions and applications were made for continuance, but would be present on May 21, 1936, at 9:00 A. M. The reason stated in the motions and applications for the failure of the said Karl W. Greenwood, Sheriff of Camden County, to appear was that he had been summoned to appear before a Federal grand jury in Kansas City, Missouri, and he could not possibly be in court in Douglas County at the time said motions and applications were made for a continuance until the following morning, all of which more fully appears in paragraph 5 of defendant's motion for new trial. Sec. 3654, R. S. 1929. (4) The court erred in overruling defendant's plea in abatement, which was filed before the trial of said cause was commenced. Said plea in abatement set forth in detail the reasons said court did not have jurisdiction and the reasons for sustaining said plea in abatement, as more fully appears in paragraph 6 of defendant's motion for new trial. Sec. 3470, R. S. 1929; State v. Dooley, 121 Mo. 603; Gower v. Agee, 128 Mo.App. 436; 61 A. L. R. 385; Knight v. Miles, 272 S.W. 924; 2 R. C. L., sec. 27, pp. 469-70; 5 C. J., sec. 57, pp. 422-3; 4 Amer. Jur., sec. 21, p. 15; 6 C. J. S., sec. 12, pp. 609-10; Art. IV, Sec. 2, U.S. Const., Laws U.S., sec. 2; 15 Mo. Stat. Ann., p. 132. (5) The court erred in overruling defendant's plea to the jurisdiction filed in the Circuit Court of Ozark County on May 19, 1936, said plea setting out the fact that the clerk of the Circuit Court of Douglas County did not make out a full transcript of the record and proceedings in said cause as required by statute. Sec. 3640, R. S. 1929; State v. Buck, 108 Mo. 629; State v. McClure, 31 S.W.2d 43; 27 R. C. L., sec. 46, p. 826. (6) The court erred in overruling defendant's plea in abatement, wherein it was stated, and evidence produced to prove, that the affidavit upon which the warrant was issued for the arrest of this defendant was not signed. Sec. 3467, R. S., 1929; Monson v. Rouse, 86 Mo.App. 101; Schwartz v. Dutro, 298 S.W. 771; Ex parte Saxbury, 18 S.W.2d 1042; State v. Nichols, 49 S.W.2d 19; 16 C. J., sec. 495, p. 287; 8 R. C. L., sec. 67, p. 105.
Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.
(1) The court properly overruled defendant's demurrer to the evidence at the close of the State's case. State v. Mann, 217 S.W. 69; State v. Barr, 78 S.W.2d 104; State v. Sanders, 4 S.W.2d 815; State v. Decker, 326 Mo. 946, 33 S.W.2d 961; State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1036; State v. Hembree, 295 Mo. 9, 242 S.W. 911; State v. King, 53 S.W.2d 252, 331 Mo. 268; State v. Bigus, 66 S.W.2d 854; State v. Starling, 207 S.W. 768. (2) The court did not err in overruling appellant's demurrer offered at the close of the whole case, and in overruling appellant's peremptory Instruction J. State v. Copeland, 335 Mo. 140, 71 S.W.2d 751; State v. Barr, 78 S.W.2d 105; State v. Messino, 325 Mo. 743, 30 S.W.2d 760; State v. Boesel, 64 S.W.2d 243; State v. Stogsdill, 23 S.W.2d 27, 324 Mo. 105. (3) The court properly instructed the jury as to murder in the first degree. Sec. 3982, R. S. 1929; State v. Hart, 237 S.W. 482, 292 Mo. 74; State v. Long, 253 S.W. 729; State v. Baker, 278 S.W. 987; State v. Aguelera, 326 Mo. 1205, 33 S.W.2d 903; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132; State v. Messino, 325 Mo. 743, 30 S.W.2d 750; State v. Barrington, 198 Mo. 23, 95 S.W. 235. (4) The court did not err in giving Instruction 1 for murder in the first degree. State v. Lindsey, 333 Mo. 139, 62 S.W.2d 424; State v. Nasello, 325 Mo. 442, 30 S.W.2d 139; State v. Messino, 325 Mo. 743, 30 S.W.2d 760; State v. Ross, 300 S.W. 786; State v. Douglas, 278 S.W. 1016; State v. Aurentz, 315 Mo. 242, 286 S.W. 72; State v. O'Leary, 44 S.W.2d 54. (5) The court did not err in overruling defendant's plea in abatement as set forth in Section 9 thereof. 16 C. J., p. 175; State v. Patterson, 22 S.W. 696, 116 Mo. 517; Lascelles v. Georgia, 23 S.Ct. 687; 21 A. L. R., p. 1418; 18 A. L. R., p. 509; Cardigan v. Biddle, 10 F.2d 445. (6) There was no error committed by the court in admitting the testimony of admissions made by appellants to witnesses Viets, Gentry, Neiman and Reeves. State v. Hoskins, 327 Mo. 313, 36 S.W.2d 910; State v. McGuire, 327 Mo. 1176, 39 S.W.2d 526; State v. Raftery, 158 S.W. 585, 252 Mo. 80; State v. Brooks, 119 S.W. 353, 220 Mo. 83. (7) The court did not err in overruling appellant's objection to the competency of accomplice Woolery's testimony for the State. Sec. 3691, R. S. 1929; State v. Braden, 295 S.W. 785; State v. Lackmann, 12 S.W.2d 425; State v. Cardwell, 332 Mo. 79, 60 S.W.2d 32; State v. Parker, 324 Mo. 741, 24 S.W.2d 1026; State v. Shepard, 334 Mo. 423, 67 S.W.2d 95.
Westhues, C. Cooley and Bohling, CC., concur.
This case, coming to the writer on reassignment, is an appeal, by Dennis Morefield, from a judgment and sentence of imprisonment in the penitentiary for life, on a charge of murder in the first degree.
The alleged crime was committed on July 9, 1935, in Douglas County, Missouri. An application for a change of venue was granted and the case was transferred to Ozark County where a trial was had. A jury returned a verdict of guilty and assessed the punishment at life imprisonment in the penitentiary.
The evidence introduced by the State disclosed the following Clifford Woolery, John W. Huff, Henry "Fat" Morefield and appellant, Dennis Morefield, left Camdenton, Missouri, in a car driven by appellant on the afternoon of July 9, 1935, and drove to the home of the deceased, Rondo Ellison, who lived with his mother a few miles north of Ava, Missouri. On the way they stopped at Seymour and asked one Oscar Barnhouse if it was all right to go ahead. Barnhouse stated to them in substance that it was all right to go that night. When the four reached the home of the deceased, Ellison, Woolery, Huff and Henry Morefield took their revolvers and went to the house. Appellant remained in the car, which was parked by the roadside in front of the home. It was then about dark. In response to a call by these men, Rondo Ellison went to the door and was asked to get them a drink. Ellison went to the kitchen and brought some water. After the three had taken a drink, someone, either Woolery or Huff, said, "stick them up", or words of that substance. Two shots were fired immediately thereafter. One struck Rondo Ellison in the head killing him instantly. The other bullet struck Henry Morefield producing instant death. Thereupon Huff, Woolery and appellant fled. The guns which they had were cast away and later found along the roadside. Beside the body of Henry Morefield was found a .22 revolver. A .38 revolver with one discharged cartridge was found beside the body of Ellison. Ellison had...
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