State v. Naylor

• Decision Date: 03 July 1931
• Docket Number: No. 30528.,30528.
• Citation: 40 S.W.2d 1079
• Parties: THE STATE v. CORDY NAYLOR, Appellant
• Court: Missouri Supreme Court

40 S.W.2d 1079

THE STATE v. CORDY NAYLOR, Appellant

No. 30528.

Supreme Court of Missouri.

Division Two, July 3, 1931.

Appeal from Howard Circuit Court. — Hon. Allen W. Walker, Judge.

AFFIRMED.

Daniel C. Rogers and Samuel C. Major for appellant.

(1) The evidence, if it warranted a conviction at all, shows that manslaughter and not second degree murder was committed. (2) It was error for the court to refuse a continuance duly applied for on account of an absent essentially material witness, when the result of the trial might very plausibly have been different if the missing evidence had been available to the defendant. State v. Wade, 270 S.W. 298 State v. Sherrill, 198 S.W. 464; State v. Maddox, 117 Mo. 681; State v. Max Klinger, 43 Mo. 127; State v. De Witt, 152 Mo. 85; State v. Warden, 94 Mo. 650. (3) It was error for the court to refuse testimony offered by the defendant of the former conviction of deceased in Randolph County for carrying concealed weapons, and the knowledge thereof by defendant, for the reason that such evidence was essential to prove apprehension of danger on the part of the defendant. (4) It was error for the court to excuse juror Fred Eaton, whose voir dire examination showed him to be qualified to serve on the jury and for the further reason that the State in making its so-called challenge never assigned or gave any reasons which would tend to prove his disqualification. R.S. 1919, sec. 4015; State v. Taylor, 134 Mo. 142; State v. Ashbrook, 11 S.W. (2d) 1037; State v. Garrett, 226 S.W. 4; State v. Ripley, 242 Mo. 461; State v. Miller, 264 Mo. 441; State v. Bobbitt, 215 Mo. 10. (5) The jury panel in cases of second degree murder must contain thirty qualified jurors, instead of twenty-four. R.S. 1919, sec. 3232; State v. Burns, 99 Mo. 471; Laws 1925, p. 196, sec. 4017; State v. Eaton, 292 S.W. 74; State v. Fox, 300 S.W. 822. (6) Improper, inflammatory and prejudicial remarks of prosecuting counsel constitute reversible error: (a) In reference to the guilt of defendant: State v. Smith, 281 S.W. 40; State v. Repply, 213 S.W. 480; State v. Hess, 240 Mo. 159; State v. Webb, 254 Mo. 434. (b) In reference to other inflammatory and prejudicial remarks; State v. Ray, 225 S.W. 973; State v. Upton, 130 Mo. App. 316; State v. Dixon, 253 S.W. 748; State v. Honston, 263 S.W. 224. (7) Unless directed by the Governor in strict compliance with the law, special prosecuting Attorney-General cannot be assigned by the Attorney-General: R.S. 1919, sec. 693; In re Howell and Ewing, 200 S.W. 65. (8) An illegal and insufficient indictment cannot sustain a conviction. (9) The grand jury was without jurisdiction to return an indictment against a boy under seventeen years of age. State ex rel. Boyd v. Rutledge, 13 S.W. (2d) 1061. (10) The division of the circuit court having general criminal jurisdiction was wholly without jurisdiction to put a boy under seventeen years of age on trial, particularly this defendant who had never been adjudicated a delinquent or been in any other manner in the custody of the juvenile or circuit court. State ex rel. Boyd v. Rutledge, 13 S.W. (2d) 1061; Art. 5, Chap. 11, R.S. 1919.

Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.

(1) The indictment charges an offense under the laws of Missouri. It states the venue. It states that the grand jury was impaneled, sworn and were charged. Sec. 3563, R.S. 1929; State v. Spano, 6 S.W. (2d) 849; Ex parte Keet, 287 S.W. 465. (2) The circuit court has the right to make an order directing that a defendant under seventeen years of age be tried under the provisions of the general law in the circuit court and not in the juvenile court. State ex rel. Wells v. Walker, 34 S.W. (2d) 124. (3) An Assistant Attorney-General has the right to assist the prosecuting attorney, when requested by him so to do, under leave of court, whether he had been ordered by the Governor to do so or not. State v. Hays, 23 Mo. 287. An Assistant Attorney-General may occupy any position in the trial of the case. State v. Coleman, 199 Mo. 120; State v. Kowertz, 25 S.W. (2d) 117. (4) The court did not err in summoning a panel of twenty-four jurors instead of thirty or in permitting the defendant to challenge only eight instead of twelve. Sec. 4017, Laws 1925, p. 196; State v. Fox, 300 S.W. 822; Secs. 3674, 3984, R.S. 1929; State v. Cox, 292 S.W. 74. (5) Fred Eaton, who was excused over the objection of defendant, was a close neighbor of the defendant and his family and had known them all his life and was friendly to them. The court may on its own motion examine and excuse a juror. The court has a wide discretion which will not be interfered with by this court unless abuse of such discretion is shown. State v. Taylor, 134 Mo. 141. (6) The defendant offered to show by a certified copy of the record that the deceased entered a plea of guilty to carrying concealed weapons in 1925. The record does not show that the charge was carrying concealed weapons. The court's ruling rejecting this testimony is clearly right. State v. Jones, 134 Mo. 262; State v. Woods, 274 Mo. 617. (7) Certain witnesses testified to the good reputation of defendant. On cross-examination these witnesses testified that they had heard of the defendant using a knife as a weapon in other difficulties. The State had the right to bring out such testimony on cross-examination. State v. Miller, 12 S.W. (2d) 42. The testimony having been rightfully brought into the case, there was nothing improper in referring to it in the argument. The court sustained defendant's objection to this part of the argument. The defendant did not ask the court to do anything further and did not except to the nonaction of the court. Therefore, this objection is not before the court for review. State v. Rasco, 239 Mo. 579. The State insists moreover that no part of the argument constitutes error.

COOLEY, C.

Defendant, Cordy Naylor, appeals from the judgment of the Circuit Court of Howard County sentencing him to twelve years' imprisonment in the penitentiary upon conviction of murder in the second degree.

The fatal encounter occurred in Howard County on the night of September 22, 1928, near midnight. A pie supper had been held at the Baldridge school house, which had ended about ten o'clock. During and after the supper a crap game had been in progress in a near-by pasture, attended by varying numbers of boys and men, among whom were defendant and the deceased, Willard Conwell. The difficulty occurred at the crap game with about a dozen men present. Defendant, deceased and others were taking part in the game, which was being played by the light of a lantern upon a blanket spread upon the ground. Defendant and Conwell sat at opposite sides of the blanket, other participants being between them. A dispute arose between defendant and Conwell as to which was entitled to some money which had been placed on the blanket as a stake. Defendant picked up the money after a play, claiming he had won it. Conwell claimed defendant was not entitled to it. Both were then kneeling or sitting on the ground. After picking up the money defendant threw down a quarter for the next play, and Conwell picked it up and refused to relinquish it, because, he insisted, defendant had not fairly won the money on the previous play, and that the dice should be "shot" again to determine that play. Defendant refused to do that, insisting that the play had been fair and that Conwell give up the quarter he had picked up. The dispute became heated and both parties arose. As Conwell rose he threw an empty whiskey bottle at defendant, striking him on the shoulder, and, according to the State's evidence, turned to speak to one George Fisher, whereupon defendant drew his knife, stepped or jumped across the blanket and stabbed Conwell in the left side just above the hip, inflicting a wound from which Conwell died on September 24, 1928.

The defense was that defendant stabbed Conwell in self-defense. His testimony and that of his witnesses tended to show that as Conwell threw the bottle he said to defendant, who had arisen: "You sit down, you son-of-a-bitch, or I'll knock you down," and that he then threw his right hand behind him toward his hip pocket and advanced toward defendant — "kinda stepped towards me," as defendant testified, and that defendant stabbed him when he thus advanced. Defendant testified that he stabbed Conwell to protect himself from assault and great bodily harm by Conwell which he then apprehended. He denied that he stepped or jumped across the blanket toward Conwell, or that the latter was talking to some one else at the time he cut him. One of his witnesses, however, Jack Winn, testified that Conwell did not advance toward defendant, but that defendant stepped or jumped across the blanket toward Conwell and stabbed him while the latter was talking to some one else. The other witnesses called by defendant to corroborate his claim of self-defense were impeached by testimony of members of the grand jury which indicted defendant, to the effect that said witnesses had given testimony before that body different from their testimony at the trial and substantially in accord with the testimony of the State's witnesses at the trial. A number of witnesses called by defendant testified to his previous good character.

I. In his motion for new trial defendant assailed the indictment on the grounds that it did not charge any offense and did not state the venue, nor that the grand jurors were empaneled, sworn or charged, nor that their Indictment. presentment was made upon their oaths. No such challenge of the indictment was made before trial by motion to quash or otherwise. The indictment begins thus:

"State of Missouri, Plaintiff, vs. Cordy Naylor, Defendant.

"In the Circuit Court of Howard County, Missouri, September A.D. 1928 term.

"The grand jurors for the State of Missouri, in and for the body of the County of...