State v. Murray

• Citation: 193 S.W. 830
• Decision Date: 16 March 1917
• Docket Number: No. 19666.,19666.
• Parties: STATE v. MURRAY.
• Court: United States State Supreme Court of Missouri

193 S.W. 830

STATE v. MURRAY.

No. 19666.

Supreme Court of Missouri, Division No. 2.

March 16, 1917.

Rehearing Denied March 30, 1917.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Richard Murray was convicted of murder, and he appeals. Affirmed.

Alexander R. Russell and Thomas J. O'Brien, both of St. Louis, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen. (James V. Billings, of Jefferson City, of counsel), for the State.

WALKER, P. J.

Defendant was indicted jointly with one Fred Moeller in the circuit court of the city of St. Louis for the murder of one Steven Lukos in September, 1913. Moeller was tried separately and convicted. Defendant evaded arrest and was not apprehended until April, 1914. Mistrials and continuances prevented a hearing until February, 1915, when defendant was tried, convicted, and sentenced to life imprisonment in the penitentiary. From this judgment he appeals.

The saloon in which the killing occurred was kept by the deceased, Steven Lukos, and was located on the corner of Fifteenth and Madison streets in the city of St. Louis. At about 10 o'clock on the night of September 2, 1913, defendant and Moeller, both under the influence of liquor, entered the saloon and ordered two glasses of beer. The saloon keeper, Steven Lukos, was at the time standing behind and near the middle of the bar talking to a customer named Burrichter, who was drinking a glass of beer. Mrs. Lukos, wife of the saloon keeper, was sitting behind and at the front end of the bar near a cigar case. No other persons were in the room. When Lukos took two glasses and started down the bar to draw the beer, Moeller, drawing a pistol, stepped around Burrichter, and, approaching Lukos, who was about to draw the beer, put the pistol to his side and said, "We want your money." Lukos caught at or grapped Moeller's arm, and, attempting to push it aside, said, "You want my money?" "Yes," said Moeller, "and we want it damn quick." Lukos dropped the glasses and they grappled, when three shots were fired by Moeller in rapid succession. While this was occurring Murray stepped around from the bar, and Burrichter turned to run out of the saloon. In doing so he ran against Murray. As this occurred Murray threw up his arm and fired a shot in the direction of Lukos and Moeller. Five shots were fired, the last just as Burrichter ran out of the room. Moeller and Murray, after the fifth shot was fired and Lukos had fallen to the floor, ran out of the side or back door of the saloon and went rapidly up Fifteenth street. They were seen running away by Mrs. Lukos, who, after vainly attempting to keep Moeller from shooting her husband, had run screaming out of the room, and after going a short distance away was returning. When she entered the saloon she found her husband lying dead near where he had been struggling with Moeller. An autopsy disclosed that his death had resulted from four gunshot wounds. Moeller was arrested at his home the morning succeeding the killing, and Murray, as stated, evaded the officers and was not arrested until the succeeding April, when he was found concealed at the residence of his mother-in-law.

The defense, aside from the contention that the evidence is insufficient to sustain the verdict, is purely technical. We will examine it in the order in which the errors are assigned by the defendant.

I. An examination of the record discloses substantial facts to sustain the verdict. We will therefore not burden the opinion with their further recital in detail than is found necessary in the discussion of defendant's assignments of error. Under the well-established rule that a verdict will not be disturbed which is supported by any substantial evidence, we hold that defendant's peremptory demurrer was properly overruled. State v. Underwood, 263 Mo. loc. cit. 685, 173 S. W. 1059.

II. Defendant contends that the evidence does not show that the crime was committed in the city of St. Louis. The information so charges. The facts and circumstances in evidence all tend to establish the fact. Stevensmeyer, a police officer, testified that "the saloon in which the killing occurred was located on the corner of Fifteenth and Madison, in this city." The trial occurred in the city of St. Louis, and the court instructed the jury that, if they believed and found that the defendant at said city shot and wounded the deceased and from such wounds he died, then they should find defendant guilty. We state only so much of the instruction as will show that it was necessary for the jury in returning their verdict to find that the crime was committed in the city of St. Louis. Guided by these instructions, the jury so found.

Venue is a question of fact to be established like any other fact, and, it having been shown that there was evidence to satisfy the jury that the crime was committed in the city of St. Louis, is sufficient to meet the requirements of the law. State v. Burns, 48 Mo. 438. We have said, in affirming the rule announced in the Burns Case, that, where "the evidence raises a violent presumption that the offense for which the" defendant is on trial "was committed in the county where he is tried, it is sufficient." State v. Horner, 48 Mo. 520.

In State v. West, 69 Mo. loc. cit. 404, 33 Am. Rep. 506, this court, in a lucid opinion by Henry, J., in a homicide case, said:

"While no witness stated directly that the homicide was committed in Cooper county, facts and circumstances were established tending to show that it occurred in that county, and the question whether it did or not having been submitted to the jury by the court in a proper instruction, and they having found by their verdict that the murder was committed in Cooper county, there is nothing to justify us in disturbing the verdict on that issue. The venue is to be established like any other material allegation. It was competent to prove the offense to have been committed in Cooper county by circumstances which led to that conclusion, although no witness expressly stated that it occurred in Cooper county."

In State v. McGinniss, 74 Mo. 246, this court, speaking through Sherwood, C. J., said in substance:

"Proof of * * * venue * * * like any other material" fact, need "not be established by express" or "positive testimony, but it is sufficient if the circumstances in evidence tend to the conclusion, in a manner satisfactory to the jury, that the place of the crime corresponds with that set forth in the indictment. Rulings of courts" in "other states" are in "accord with our own in" holding that inferential evidence will suffice to establish the locus delicti.

In State v. Hill, 96 Mo. loc. cit. 358, 10 S. W. 28, the court, speaking through Brace, J., said:

"It is not necessary that the venue be proved by direct and positive evidence. It is sufficient if it can be reasonably inferred from the facts and circumstances proven."

We announced the same rule in regard to the nature of evidence necessary to prove the venue in State v. Lee, 228 Mo. 480, 128 S. W. 987, and in State v. McCawley, 180 S. W. 869. If precedent based upon parallel facts were needed to define the quantum of proof necessary to establish venue, it is certainly found in the cases cited, which are applicable in all of their material features to the case at bar. We therefore rule against this contention of the defendant.

III. Defendant complains of the giving of instruction numbered 3. It is as follows:

"You are further instructed that all persons are principals who are guilty of acting together in the commission of a crime. When any crime is actually committed by one person, and another person is present, and, knowing the unlawful intent, aids, abets, encourages, or assists the person actually engaged in the commission of the unlawful act, then such person so aiding, abetting, encouraging, or assisting is a principal and equally guilty with the person who actually committed the crime.

"You are therefore further instructed that, if you find from the evidence that on or about the 2d day of September, A. D. 1913, one Fred Moeller made an attempt to rob deceased, Steven Lukos (bearing in mind the definition of `robbery' before given in these instructions), and that the defendant, Richard (alias Bud) Murray, knowing of the attempt being made by said Moeller to rob said Lukos, joined in said attempt, that is, did some act calculated to assist said Fred Moeller in the commission of such robbery, while such attempt was being made, with the intent then and there to assist said Moeller in committing such robbery, and in doing so shot and killed, or assisted in shooting and killing, deceased, Steven Lukos, then the killing of the deceased under such circumstances was murder in the first degree, and if you so find the facts to be, you will find the defendant, Richard (alias Bud) Murray, guilty of murder in the first degree, and so state in your verdict."

It is not contended that this instruction is erroneous in the abstract, because it is in the form frequently approved by this court under a like state of facts (State v. Gooch, 105 Mo. 392, 16 S. W. 892; State v. Miller, 156 Mo. 86, 56 S. W. 907; State v. Valle, 164 Mo. 551, 65 S. W. 232), but that it should not have been given because it is alleged "to be almost a duplicate of instruction numbered 2, and that it omits to require the jury to find that the alleged crime was committed within the city of St. Louis, and that a repetition of instructions tended to prejudice the minds of the jury by their reiteration." There is no substantial merit in these objections. Instructions numbered 2 and 3 are not duplicates, but each was authorized under the evidence and was in conformity with approved forms. It is true that instruction numbered 3 did not require proof of venue in the city of St. Louis, but three other instructions which were given contained this requisite, and the tyro knows that instructions are to be...