State v. Murphy

• Decision Date: 11 June 1930
• Docket Number: 30242
• Citation: 29 S.W.2d 144,325 Mo. 537
• Parties: The State v. Thomas Murphy, Appellant
• Court: Missouri Supreme Court

29 S.W.2d 144

325 Mo. 537

The State v. Thomas Murphy, Appellant

No. 30242

Supreme Court of Missouri

June 11, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Paul A. Richards for appellant.

(1) The court erred in giving and reading to the jury Instruction No 1, because it improperly singles out one particular part of the evidence. Criminal Law, 16 C. J. sec. 2479; State v Cater, 100 Iowa 501, 69 N.W. 880. (2) The actions and remarks of the trial judge throughout the trial exceeded the bound of propriety and manifested to the jury a desire on the part of the trial judge to assist the State in its prosecution, and the defendant was thus prevented from receiving a fair and impartial trial. State v. Bunton, 280 S.W. 1040; Wair v. Am. Car & Foundry Co., 285 S.W. 155. (3) The court erred in refusing to grant a new trial on the ground of newly discovered evidence. Criminal Law, 16 C. J. sec. 272A (b).

Stratton Shartel, Attorney-General, and Henry Depping, Assistant Attorney-General, for respondent.

(1) The trial court did not err in giving Instruction No. 1. It is a stock form instruction setting out and defining the elements of murder in the first degree and as such has many times received the approval of this court. Sec. 3230, R. S. 1919; State v. Darling, 199 Mo. 168; State v. Jackson, 253 S.W. 736. There is no merit in the contention that the instruction improperly singles out and comments upon one particular part of the evidence in that certain words "or to accomplish some other unlawful purpose" are written in capital letters and the remainder in small letters. State v. Burlison, 285 S.W. 712. Arrangement of words in an instruction constitutes no basis for reversible error. State v. Allister, 295 S.W. 754. (2) The court did not err in refusing to grant a new trial on the ground of newly discovered evidence. This evidence was merely cumulative. Defendant did not show due diligence. He states he used due diligence, but the facts set forth in his affidavit and motion for a new trial do not bear him out. The alleged newly discovered witness was present at the trial. The granting of a new trial for this reason is largely in the discretion of the trial court. The court did not abuse its discretion in this instance. State v. Smith, 247 S.W. 157.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

An indictment was filed in the Circuit Court of the City of St. Louis, by which the defendant is charged with murder in the first degree. The jury found him guilty of murder in the first degree and assessed the death penalty. The trial court sentenced him accordingly, ordering that he be executed on January 4, 1929, and, in due course, he appealed.

The evidence is substantially as follows:

Charles A. Reilly, the victim of the alleged homicide, was operating a drug store at 3400 Chippewa Avenue in the city of St Louis. Across the rear end of the drug store was the soda fountain. Immediately behind the soda fountain was the prescription room.

Arthur Lubker, a driver for the Yellow Cab Company, testified: In the evening of June 16, 1928, he was called to 3546 Gravois Avenue in the city of St. Louis. As he approached that address, a man hailed him, and said he ordered the taxicab. This man entered the taxicab and said: "3221 Chippewa." Later, this man directed him to go to Reilly's drug store at 3400 Chippewa, and, after indicating that he had a gun and that it was his intention to "hold up" the drug store, this man told him, if he didn't obey instructions, it would be "too bad." When they arrived at Reilly's drug store, about 8:30 P. M., this man said: "Swing your wheels out so you can get away, and leave both doors open and your motor running, and walk inside, and I will be right behind you." He entered the drug store with this man behind him. Reilly saw this man, ducked down behind the soda fountain, and ran into the prescription room. This man ran after Reilly, and a shot was fired in the prescription room. Then, this man came out of the prescription room, jumped over a cigar counter, and ran out of the drug store, through the front door. When he (Lubker) went outside, his taxicab was gone. He "couldn't say positively" who this man was.

Kenneth Wirtel, a high school student, was employed at the drug store, and was on duty at the time of this occurrence. He testified: About 8:30 P. M., on June 16, 1928, a taxi driver entered the drug store, with the defendant a few feet behind him. The defendant had a gun in his right hand, and gave the command: "Not one of you move!" Reilly ran into the prescription room, and the defendant followed him. "There was a lot of noise, falling bottles, and then a shot." Then, defendant ran out of the store, jumped into the taxi, and drove away, alone. He was "absolutely" positive that defendant was the man who came into the drug store behind the taxi driver. He did not tell the truth at the coroner's inquest, when he testified that he did not see the man at the jail who shot Reilly, because he was told "they would get him" if he identified defendant as the man who shot Reilly.

The testimony of Lionel Joseph, "apprentice druggist" at Reilly's drug store, was substantially the same as that of Kenneth Wirtel, except as to the identification of the defendant. He said he "could not positively" identify the defendant as the man who came into the drug store with the gun.

Ralph James Bold testified: He lived in the vicinity of Reilly's drug stort. He and his wife and his sister-in-law were in Reilly's drug store at the time Reilly was killed. He saw the taxi driver and defendant enter the drug store. Defendant had a blue-steel automatic pistol in his hand when he entered the store. Defendant followed Reilly into the prescription room; a shot was fired; and defendant ran outside, with a gun in his hand, jumped in the taxicab, and drove away. He was "positive" defendant is the man who came into the drug store with the pistol in his hand.

James M. Lambert, who lived in the vicinity of Reilly's drug store, testified: He saw defendant loitering about the outside of Reilly's drug store between twelve o'clock, noon, and 2:30 P. M. on June 15, 1928, and between ten A. M. and 12:30 P. M. on June 16, 1928.

Two physicians, Dr. Albert A. Gebhart and Dr. Theodore L. Carriere, testified that Reilly's death resulted from a bullet wound in his chest. Dr. Gebhart examined Reilly's body within a few minutes after he was shot. Dr. Carriere made an autoptical examination of Reilly's body the next morning.

In a written confession, dated June 19, 1928, the defendant admitted that he loitered around Reilly's drug store on June 15th and June 16th and selected it as a good prospect for a "hold up;" that, about 8:30 in the evening of June 16th, he ordered a yellow taxicab from the 3400 block on Gravois Avenue and directed the driver to take him to Reilly's drug store; that he forced the driver to enter the drug store ahead of him and attempted the "hold up" he had planned; and that he followed Reilly into the prescription room and shot him. Four police officers testified that the defendant dictated and signed this confession voluntarily and without coercion or promise of leniency.

After making this confession, the defendant accompanied Lubker, the taxi driver, and several police officers over the route traveled by him in the taxicab on the night of the attempted "hold up." He pointed out the place where he ordered the taxicab and the place where he entered the taxicab. He also went into the drug store and made an explanation as to his movements there at the time of the attempted "hold up." The statements and explanations made by the defendant on that occasion are in harmony with the testimony of the State's witnesses relating to the same matters.

The defendant, testifying in his own behalf, said: He was 27 years of age. He arrived in St. Louis on June 9, 1928. On the day before, he was released from the penitentiary at Nashville, Tennessee, where he had been imprisoned for twenty-seven months. He had been previously imprisoned in the Ohio penitentiary. He was convicted of forgery in Ohio and of larceny in Tennessee. After his arrival in St. Louis, he was arrested twice "on suspicion," and released the second time on June 15th. He was arrested on the charge of killing Reilly in the evening of June 16th. He was not at Reilly's drug store, nor in that vicinity, on June 15th or June 16th. He signed the written confession, not voluntarily, but because he was forced to do so by police officers, who beat him and threatened him. The statements contained in the written confession are not true and he did not make them. After his arrest on this charge, he was taken to Reilly's drug store in an automobile, with Arthur Lubker and several police officers, but he did not point out any places to the officers along the route nor make any explanation to the officers while in the drug store.

The clerk of the Lexington Hotel and several police officers were called as witnesses in the defendant's behalf. The hotel clerk testified that the defendant registered at the Lexington Hotel on June 15, 1928, and was still registered there at the time of his arrest in the evening of June 16th that Sergeant Dempsey came to the hotel about 8:30 in the evening of June 16th and learned that the defendant was registered there; and that, about a half hour later, he returned to the hotel, and reported that he had found the defendant, and was permitted to visit the defendant's room. The police officers testified that a yellow taxicab was found a few blocks south of Reilly's drug store, with the engine running, shortly after the killing of Reilly was reported; that no guns were found in...