State v. Nasello

• Decision Date: 11 June 1930
• Docket Number: No. 30178.,30178.
• Parties: THE STATE v. CARL NASELLO, Appellant.
• Court: Missouri Supreme Court

30 S.W.2d 132

THE STATE v. CARL NASELLO, Appellant.

No. 30178.

Supreme Court of Missouri. Division Two.

June 11, 1930.

Appeal from Jackson Circuit Court. — Hon. A. Standford Lyon, Judge.

AFFIRMED.

Edward J. Curtin and E.M. Tipton for appellant.

(1) The court erred in admitting incompetent and immaterial evidence, in that Joe Nasello, the father, a witness for the defendant, was asked if he was not going by the name of Nelson and if he was not living with a woman by the name of Nelson, who was not his wife, which the witness denied. This was an attempt to impeach the witness on an immaterial matter by specific acts of immorality. This was especially erroneous in that after the defense closed its case the State produced witnesses Bertha Sanderson, Forest Dusenberry and Claude Ellis to contradict the witness Joe Nasello. The State was bound by the answer of the witness Joe Nasello, and it was error to contradict him by specific acts by the above named witnesses. (2) The defendant was a witness in his own behalf and was asked questions of specific acts that would tend to impeach the defendant, which the defendant denied. Then the State placed witnesses upon the stand to contradict the defendant on immaterial matters of specific acts. There was no attempt to impeach the defendant nor his witness Joe Nasello by proving their general reputation to be bad. (3) It was error for the trial court in not permitting the State's witness Lacey to answer on cross-examination questions affecting credibility after similar question had been asked the defense witness Joe Nasello. State v. Houx, 109 Mo. 654; State v. Lasson, 238 S.W. 101; State v. Luckett, 246 S.W. 881; State v. Davis, 225 S.W. 707; State v. Baker, 262 Mo. 689; State v. Hulbert, 228 S.W. 501. The State was bound by the answer of Joe Nasello, and the answer defendant gave on cross-examination. State ex rel. Horton v. Clark, 9 S.W. (2d) 640; State v. Blocks, 278 S.W. 1015; State v. Long, 201 Mo. 664. (4) Instruction 2 given on behalf of the State is erroneous. (a) The first paragraph is erroneous in that it is a mere abstract proposition of law, and leaves the jury to speculate as to what crime this defendant and others conspired to commit. (b) The instruction taken as a whole is misleading and confusing and leaves the jury to speculate as to what crime the defendant and others conspired to commit. It may have been one of the felonies mentioned in Sec. 3230, R.S. 1919, or a felony not mentioned in said section, or a misdemeanor. (c) It is further erroneous in that it refers the jury to the information as to what crime the defendant and others conspired to commit. It does not mention what crime this defendant and others conspired to commit. (d) It is erroneous because it directs the jury to convict the defendant if there was a conspiracy to commit a crime without requiring the jury to find that the defendant was one of the conspirators. It reads, if you find "there existed an agreement or understanding between the defendants, Carl Nasello, John Messino, Tony Mangercino and others, or any one of them ... then you will find Carl Nasello guilty of murder in the first degree." (e) Even if it had been correct in form it should not have been given, because the crime of robbery of the bank had been completed and the robbers had left the premises. There was no evidence to show a conspiracy to aid each other in the escape. (f) Nor was there any evidence that Officer Smith was trying to prevent their escape, nor was there any evidence of any conspiracy to kill him, or that it was necessary to shoot him or contemplated in carrying out the conspiracy. (g) It is further erroneous in that it purports to cover the whole case and yet ignores the defendant's defense of an alibi. Sec. 3230, R.S. 1919; State v. Robinett, 279 S.W. 700; State v. Hayes, 262 S.W. 1017; State v. McCaskey, 104 Mo. 644; State v. Constitino, 181 S.W. 1158; People v. Marwig, 227 N.Y. 382, 125 N.E. 535; Huggins v. State, 115 So. 214; 1 Bishop's New Criminal Law, par. 634; Burns v. State, 136 N.E. 857; State v. Heckner, 95 Mo. 332. (5) The defendant's request for an instruction to withdraw from the consideration of the jury all the testimony bearing upon the holdup of the trust company should have been given. If Instruction 2 was not given on the theory that a homicide was committed in the commission of the robbing the company, then the defendant's said withdrawal request should have been given. Moreover, this request should have been granted because the robbery was completed before the homicide was committed. People v. Marwig, 227 N.Y. 382, 125 N.E. 535; Huggins v. State, 115 So. 213; 1 Bishop's New Criminal Law, par. 634; Burns v. State, 136 N.E. 857. (6) Instruction 3 given on behalf of the State is erroneous: (a) Because it refers the jury to the information for facts that are essential for them to find. And does not include the fact necessary for the jury to find. It reads "in the manner and by some of the means mentioned in the information." (b) It is also erroneous because it gives the jury a "roving commission." It allows the jury to speculate and guess what facts are essential for it to find. (c) It is further erroneous in that it directs a verdict and ignores the defendant's defense of an alibi, an affirmative defense. State v. Brown, 104 Mo. 37; State v. Constitino, 181 S.W. 1155; State v. Bates, 232 S.W. 1013; State v. Gentry, 8 S.W. (2d) 28; State v. Wilson, 12 S.W. (2d) 445; State v. Slusher, 256 S.W. 817. (7) Instruction 6 is erroneous. Instruction 2 attempted to submit the State's theory that the homicide was committed during the perpetration of a robbery and therefore murder in the first degree. Instruction 6 attempted to submit another theory — that is, the killing of Smith was wilful, deliberate, premeditated, and with malice aforethought, and therefore murder in the first degree. (a) There was no evidence that the killing was deliberate and therefore the instruction should not have been given. Or that this defendant took any part in the killing or was a party to any conspiracy or understanding, to deliberately kill Smith. (b) Even if Smith had been killed by some one in the car in which the defendant was riding, the mere fact of the killing would have been presumed to be murder in the second degree. (c) If the defendant had anything to do with the killing of Smith it was circumstantial evidence and that part of this instruction dealing with circumstantial evidence does not correctly define circumstantial evidence. (d) The burden of proof as placed by this instruction is incorrect. It reads, "If the jury can satisfactorily and reasonably infer their existence from all the evidence, they will be warranted in finding the defendant guilty of murder in the first degree." The instruction should have told the jury they must find beyond a "reasonable doubt" from all the facts and circumstances that the killing was deliberate, wilful, premeditated and with malice aforethought, and that the fact and circumstances tending to prove his guilt were consistent with each other, but must be inconsistent with any other rational hypothesis. Sec. 3231, R.S. 1919; State v. David, 131 Mo. 380; State v. Moxley, 102 Mo. 374; State v. Garrett, 207 S.W. 784; State v. Ellis, 234 S.W. 848; State v. Miller, 237 S.W. 501; State v. Linders, 246 S.W. 558. (e) A cautionary instruction on circumstantial evidence should have been given. There was no direct proof of the killing of Smith by this defendant, and no identification by anyone who saw the shooting by anyone in the automobile. Moreover, there was no direct evidence of a conspiracy to kill Smith on the part of this defendant. Inasmuch as this instruction sought to submit one of the State's theories on circumstantial evidence, and inasmuch as that part of the instruction did not fully cover the law on circumstantial evidence, a correct instruction on circumstantial evidence should have been given. Sec. 4025, R.S. 1919; State v. Ellis, 234 S.W. 848; State v. Miller, 237 S.W. 501; State v. Linders, 246 S.W. 558. (8) Instruction 10 is erroneous. (a) It is not based on the evidence. There is no evidence that this defendant killed James H. Smith. Nor is there any evidence that this defendant conspired with anyone to kill James H. Smith. There is no evidence that Smith was killed deliberately or premeditatedly. (b) The second paragraph of this instruction is erroneous. It is indefinite, misleading and confusing. It gives the jury a roving commission. It does not require the jury to find what crime this defendant conspired to commit. It does not correctly define conspiracy. It allows defendant to be convicted of murder, even if killed by another. And that other doing nothing in the furtherance of the conspiracy. Under this instruction the jury can convict this defendant for any unlawful crime of another. This instruction allows the defendant to be convicted even though the killing of Smith was not in the furtherance of a common design on the part of this defendant and others. In other words, the killing of Smith in no way aided in the execution of a conspiracy. And this defendant would not be liable unless he fired the fatal shot. (c) Even if correct in form, the instruction should not have been given because the crime of robbing the trust company was completed and robbers had left the trust company. It does not submit the question of whether or not there was a conspiracy on behalf of this defendant to aid another in the escape. (d) The instruction purports to cover the whole case and directs a verdict and ignores the defense of alibi offered by the defendant. (e) The converse of the instruction should have been given. State v. Darling, 216 Mo. 45. (9) The court erred in refusing to give the converse of the State's Instruction No. 2, because the defendant requested the trial court to give such an instruction before any of the instructions were read to the jury. Said...