State v. Nagle
| Decision Date | 15 November 1930 |
| Docket Number | No. 30588.,30588. |
| Citation | 32 S.W.2d 596 |
| Court | Missouri Supreme Court |
| Parties | THE STATE v. MAURICE W. NAGLE, Appellant. |
Appeal from Jackson Circuit Court. — Hon. Ralph S. Latshaw, Judge.
REVERSED AND DEFENDANT DISCHARGED.
J. Francis O'Sullivan for appellant.
(1) The court erred in admitting the unsigned alleged confession of the appellant taken in the prosecuting attorney's office. State v. Ellis (Mo.), 242 S.W. 952, 24 A.L.R. 682; State v. Stebbins, 188 Mo. 387; State v. Powell, 258 Mo. 239; State v. Powell, 266 Mo. 100: State v. Thomas, 250 Mo. 189; Bram v. United States, 168 U.S. 532. 18 Sup. Ct. 183, 42 L. Ed. 568; 17 C.J. 720; People v. Trybus, 219 N.Y. 18; Hector v. State, 2 Mo. 166, 22 Am. Dec. 454; 12 Cyc. 475; State v. Brown, 73 Mo. 631; State v. Condit (Mo.), 270 S.W. 286; State v. Hart, 292 Mo. 90, 237 S.W. 473; 16 C.J. 722; State v. Jones, 54 Mo. 478; 1 Whart. Crim. Law, sec. 594; Roscoe, Crim. Ev. 45; Peter v. State, 4 Smed. & Mar. 31; Commonwealth v. Harmon, 4 Pa. 269; Van Buren v. State, 25 Miss. 512; 1 R.C.L. 573, sec. 117; Sec. 3681, R.S. 1919; State v. Myers, 278 S.W. 715; State v. Young, 119 Mo. 520; State v. Naughton, 221 Mo. 398; State v. Thornton 245 Mo. 436; Counselman v. Hitchcock, 142 U.S. 547, 35 L. Ed. 1110; Underhill Crim. Ev., sec. 140; Balbo v. People, 80 N.Y. 484; People v. Weiner, 248 N.Y. 118; People v. Doran, 246 N.Y. 409; 43 Harvard Law Review, 618; Ibrahim v. Rex (1914), A.C. 599. (2) The court erred in excluding competent, relevant and material evidence offered by the appellant relative to the taking of the alleged confession by the prosecuting attorney, over appellant's exceptions and in sustaining the State's objections to the appellant's offers of proof thereon, over appellant's exceptions, both in the preliminary inquiry into the admissibility of the alleged confession out of the jury's hearing and in the appellant's case in chief in the presence of the jury. State v. Kinder, 96 Mo. 548; 16 C.J. 738; State v. McKenzie, 144 Mo. 45; State v. Martin, 28 Mo. 530; State v. Condit, 270 S.W. 286; Sec. 5242, R.S. 1919; Underhill on Crim. Ev. (2 Ed.) 246; 12 Cyc. p. 481; State v. Church, 199 Mo. 605; McKelvey on Ev., sec. 84, sec. 126, p. 583, sec. 128, p. 585; 1 R.C.L. 578, sec. 122; State v. Ellis, 242 S.W. 952; State v. Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631. (3) The court erred in refusing to give appellant's instruction in the nature of a demurrer at the close of all the evidence. State v. Wheaton, 221 S.W. 26; State v. Bennett, 6 S.W. (2d) 882; State v. Young, 237 Mo. 179; State v. Capotelli, 292 S.W. 42; State v. Bowen, 247 Mo. 594; Kelley's Crim. Law, sec. 281; 16 C.J. 771. sec. 1779; State v. Campbell, 301 Mo. 618, 257 S.W. 131; State v. Morro (Mo.), 281 S.W. 720; State v. Perkins, 18 S.W. (2d) 6; State v. Morney, 196 Mo. 50; State v. Scott, 177 Mo. 665; State v. Counts, 234 Mo. 580; State v. Ruckman, 253 Mo. 487; State v. Tracy, 284 Mo. 619, 225 S.W. 1009.
Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.
(1) Respondent confesses error in the admission of the confession or statement of appellant which was taken in the prosecuting attorney's office. We rely on the following citation of authorities to support the confession of error: Hector v. State, 2 Mo. 166, 22 Am. Dec. 454; State v. Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631; State v. Young, 119 Mo. 520; State v. Naughton, 221 Mo. 398; State v. Ellis, 242 S.W. 952, 24 A.L.R. 682; State v. Stebbins. 188 Mo. 387; State v. Powell, 258 Mo. 248; State v. Powell, 266 Mo. 107; State v. Thomas, 250 Mo. 212; State v. Condit, 270 S.W. 286; State v. Hart, 292 Mo. 90, 237 S.W. 473; State v. Thornton, 245 Mo. 436. (2) The learned trial court erred in excluding appellant's offers of proof both in the preliminary inquiry into the admissibility of the confession out of the jury's hearing and in the appellant's case in chief in the presence of the jury. State v. Kinder, 96 Mo. 548; 16 C.J. 738; State v. McKenzie, 144 Mo. 45; State v. Martin, 28 Mo. 530; State v. Condit, 270 S.W. 291; Underhill on Criminal Evidence (2 Ed.) 246; 12 Cyc. 481; State v. Church, 199 Mo. 605; 1 R.C.L. 578, sec. 122; State v. Ellis, 242 S.W. 955; State v. Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631. (3) Without the appellant's confession the State did not make out a submissible case. Appellant's confession, which should be stricken down for the reasons above assigned, was to the effect that appellant gave John Messino, co-defendant, permission to use his automobile "on a job on Walnut street and it was my understanding that it was to be within the next twenty-four hours" for which service he was to receive a pecuniary reward. There is no other evidence in the record from which it can be inferred that appellant knew that his automobile was to be used in the robbery of the Home Trust Company. Such being the facts and the confession being inadmissible, the case failed for want of evidence.
By an information filed in the Circuit Court of Jackson County, this defendant, Carl Nasello, John Messino, Tony Mangercino and three others were jointly charged with the murder of James H. Smith, a traffic officer in Kansas City, Missouri. Severances were taken, and, at a separate trial, the jury found this defendant guilty of murder in the first degree and assessed his punishment at imprisonment in the penitentiary for life. He was sentenced accordingly, and appealed. [Companion cases heretofore decided by this court are State v. Nasello, 325 Mo. 442, 30 S.W. (2d) 132; State v. Messino, 325 Mo. 743, 30 S.W. (2d) 750, and State v. Mangercino, 325 Mo. 794, 30 S.W. (2d) 763.]
With reference to the alleged murder of officer Smith, the evidence adduced by the State is substantially as follows: About 9:20 in the morning of June 14, 1928, several men entered the building occupied by the Home Trust Company on the east side of Walnut Street, between Eleventh and Twelfth streets, in Kansas City, Missouri, and, with revolvers and a sawed-off shotgun, "held up" the officers and employees of the trust company and robbed that institution of about $19,000, in money and interest coupons on United States Liberty Bonds. While the robbery was in progress, Messino was seen in the driver's seat of a Buick coach automobile standing in front of the trust company and headed north on Walnut Street. Upon leaving the trust company, the robbers entered the Buick coach, which then was driven north on Walnut Street at a rapid rate of speed, its occupants, seven in number, brandishing revolvers, a sawed-off shotgun and a machine gun, and firing numerous shots in the air. Officer Smith was in charge of traffic at the intersection of Eleventh and Walnut streets, and, when his attention was attracted by these shots, he left his station in the middle of the intersection and ran or walked rapidly south on Walnut Street about fifty feet, in the direction of the approaching Buick coach, where he was shot three times with a sawed-off shotgun by one of the occupants of the Buick coach. He fell, mortally wounded, and died about six o'clock in the evening of that day. Nasello was one of the men who entered the trust company and aided in the robbery, and he and Mangercino were among the occupants of the Buick coach as it left the scene of the robbery. Messino was driving the Buick coach as it proceeded north on Walnut Street. After the Buick coach passed the safety zone at the intersection of Eleventh and Walnut streets, it was discovered that the "safety zone standard" had been knocked down, and, nearby, a nickel-plated automobile door handle was picked up and handed to a police officer. Shortly after the robbery, a Buick coach with six or seven occupants stopped at the intersection of Eleventh and Charlotte streets, where four of the occupants got out. Two of them entered another automobile which was driven north on Charlotte Street, and the other two entered another automobile which was driven south on Charlotte Street. As the Buick coach started east on Eleventh Street, a shotgun was dropped from it, and one of the occupants got out and picked up the shotgun. Then, the Buick coach was driven east on Eleventh Street. On the day after the robbery, partly-burned pieces of some of the interest coupons taken from the trust company by the robbers, two masks, several revolvers, a shotgun, a machine gun and some shotgun shells were found in a vacant house, in the southeast section of Kansas City.
The State did not contend at the trial, and there is no evidence tending to show, that the defendant actually participated in the robbery or in the killing of officer Smith. The theory of the State at the trial was that the defendant permitted Messino to use his Buick coach in the robbery of the trust company with the understanding that he (the defendant) would get a share of the loot. The following is a summary of the evidence adduced by the State in support of this theory: On June 14, 1928, the day of the robbery, and for sometime prior thereto, the defendant owned a Buick coach, and Messino owned a Chrysler roadster, which were kept at the Trafficway Garage in Kansas City. Both Messino and Mangercino drove the defendant's Buick coach "now and then," and the defendant drove Messino's Chrysler roadster "now and then." Messino brought the defendant's Buick coach to the Trafficway Garage the night of June 13, 1928, and the next morning, the morning of the robbery, "about twenty or twenty-five minutes till nine," he came to the Trafficway Garage and got the defendant's Buick coach. "Another fellow," an Italian, was with Messino. Between nine and 9:30 that morning, one of the employees of the Trafficway Garage delivered Messino's Chrysler roadster to the defendant at Thirteenth and Jefferson streets, in response to a telephone call "for it." About 10:30 or eleven o'clock that morning, a garage at 1241 Jefferson Street in Kansas City was...
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