State v. Parr

• Decision Date: 09 December 1922
• Docket Number: No. 23736.,23736.
• Citation: 296 Mo. 406,246 S.W. 903
• Parties: STATE v. PARR.
• Court: Missouri Supreme Court

246 S.W. 903

296 Mo. 406

STATE v. PARR.

No. 23736.

Supreme Court of Missouri, Division No. 2.

December 9, 1922.

Motion for Rehearing Denied December 22, 1922.

Appeal from St. Louis Circuit Court; J. W. McElhinney, Judge.

George V. Parr was convicted of first degree murder, and appeals. Affirmed.

Hudson & Hudson, of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

WALKER, J.

Appellant and Willis Millard were jointly indicted by the grand jury of St. Louis county charged with murder in the first degree in having killed Eugene S. Conrey. A severance was granted the appellant, who upon a trial was convicted as charged and his punishment fixed at imprisonment in the penitentiary for life. From this judgment he appeals.

The evidence for the prosecution was largely circumstantial. Appellant, Willis Millard, a coindictee, and David Burke were in an automobile in the town of Clayton at about midnight, August 30, 1920. Eugene S. Conrey and Benjamin Corner, two deputy sheriffs, attempted to drive by the car in which the defendants and others were seated, when a command was issued for some persons to throw up their hands. This was followed by a declaration in a loud tone of voice, "You've got the wrong man this time." A volley of shots followed, and the same voice said, "You are under arrest." Then there were three other shots, and a commanding voice said, "Get out of the car, every one of you!" These facts were testified to by residents of the immediate neighborhood, who heard the shots and voices before they saw the automobiles. The first command given was in a different tone of voice to that which said, "You've got the wrong man this time." The latter statement was followed in the same tone of voice by the declaration: "You are under arrest. Get out of that car, every one of you!" In the interchange of shots Millard was wounded and fell, part of his body lying in the can and the remainder on the running board. Immediately after he fell, his companions, Burke and the appellant, complied with the command of the deputies and went to Conrey. He searched Burke and told Corner, the other deputy, to take them up the hill. Corner started with the men in a westerly direction. A voice was heard saying: "Come on! There are two dead now." After they bad gotten a short distance away, a witness who was in a nearby residence saw a man coming from towards the automobiles skulking along some distance behind them and dodging from tree to tree. He was identified as Millard. After he passed in the direction taken by Corner and the two men under arrest, two shots were heard in that direction. Corner ordered the prisoners into a lawn, sank down by the side of a house, and expired from a pistol wound in the back. While this was happening, one of the citizens of the neighborhood went to the automobiles. He saw Conrey's body lying at the head of the officers' automobile, made an examination of it, and found that he was dead from a pistol wound. As he rose from examining the body, Millard approached him with a drawn pistol and inquired what all this meant. He stepped backwards with his pistol drawn on the citizen, took the driver's seat in the automobile he and the others had occupied, and rode rapidly away. Other officers came and pursued him. They ordered him to halt, but lie jumped out of the car while it was in motion and disappeared in the shrubbery of Forest Park. The next morning he was found in University City suffering from a gunshot wound. In the abandoned automobile was found a pistol.

Conrey was shot with a 38-caliber bullet. Millard was shown to have been the only person at the scene of the crime who had that sort of a weapon. A number of shots were fired at officers Conrey and Corner. The Ford automobile in which the officers had ridden to the place where Conrey was shot had a number of bullets and bullet holes in it. Prom one of the bows at the top of the automobile a 32-caliber bullet was extracted. This bullet was shown to have been fired from a Colts revolver. Appellant stated that he had in the automobile a 32-caliber Colt's revolver. Burke had no weapon.

A statement made by appellant was offered in evidence in which he denied the shooting, but admitted that he had a pistol at the time. The material parts of this statement are to this effect: That he and Burke and Millard were out riding in St. Louis county the night of the shooting. Burke was driving the car, Millard sat by the side of Burke, and the appellant sat on the back seat. They had engine trouble and stopped. Another machine pulled up in front of them, and a man said, "Hands up! We are police officers," and showed his star. Some one behind the appellant shot at the officer. Questioned as to how any one behind him, if he was the only one on the back seat, could fire the shot, he said he did not know, that there were so many shots fired he lost .;:rack of them. After the shooting, Millard tried to get out of the car, but fell or was knocked out; his feet lying in the car, and his body lying over the running board. One of the men ordered the appellant and Burke to keep up their hands and walk up the hill. As they walked up the hill, two shots were fired. The officer in charge of appellant and Burke ordered teem into an adjacent lawn, and saying, "Well, I'm done for; you can go," they ran and went a roundabout way down Page avenue. Appellant's gun, he says., was left in the car in a pocket; that he did not fire a shot. The gun was a 32-caliber. He says he wanted the gun because they had made up their mind they would not let anybody take them for anything; that they were not going to be arrested; that they were going to shoot their way out if necessary.

Burke, who was not indicted, testified for the appellant that he was with the latter at the time of the shooting; that Officers Conrey and Corner drove their Ford automobile along the side of the automobile in which he, appellant, and Millard were seated; that he said, "Whoa!" and one of the officers said, "Whoa"; that the officer held a gun in his hand and said: "Hell, throw them up! You s_____ o_____ b_____s!" Then there was a shot from Millard's pistol which was answered by the officers with their pistols; that he did not see any gun or pistol on appellant nor about the machine.

Appellant testified that he had no pistol or gun with him at the time of the killing. After the shooting of Corner, Burke and the appellant fled and: were arrested in the city of St. Louis the next day. Burke was held in jail for about a month, but was discharged after the indictment was found against Millard and the appellant. Statements made by them were introduced in evidence to which appellant objected on the ground that they were induced by fear and that he was not conscious of having made them.

I. It is contended that the trial court erred in admitting testimony that appellant's coindictee, Millard, shot Corner after Conrey had been killed. We held in State v. Millard (Mo. Sup.) 242 S. W. 923, under the same state of facts as at bar, that this testimony was admissible. Where, as here, two crimes are committed under such circumstances as to constitute one continuous transaction in the accomplishment of a common design, and the facts are so interrelated that the crimes are concurrent, proof of one cannot be made without a showing of the facts tending to establish the other. In short, the entire otherwise relevant facts may be regarded as part of the res gestæ. State v. Sykes, 191 Mo. 62, 89 S. W. 851; State v. Katz, 266 Mo. loc. cit. 503, 181 S. W. 425. Without their admission, a connected and intelligible statement of the transaction could not well be made nor a clear understanding had of the same. This exception to the admission of testimony of other offenses we discussed at length in the Millard Case with citations to numerous rulings sustaining the conclusion there reached, which, by parity of reasoning, is equally applicable to the case at bar. We find no ruling in the cases cited by appellant to sustain his contention, and we overrule the same.

II. The testimony is conflicting as to the character, whether voluntary or involuntary, of the statements concerning the crime, made by the appellant to certain police officers. Under such circumstances, it Is proper, as was the course here pursued, to submit the testimony to the jury under appropriate instructions that it may determine to which part, if any, credence should be given. State v. Wansong, 271 Mo. loc. cit. 59, 195 S. W. 999; State v. Simenson, 263 Mo. loc. cit. 267, 172 S. W. 601, and cases; State v. Powers, 255 Mo. loc. cit. 269, 164 S. W. 466; State v. Creeley, 254 Mo. loc. cit. 392, 162 S. W. 737, and cases. The testimony in the instant case, relating to the conditions under which the statements of the appellant were made, were entirely different from those in the Ellis Case (Mo. Sup.) 242 S. W. 952, and the jury was authorized in finding that the testimony of appellant and the witness Burke in regard thereto was unworthy of belief. There is nothing in the record to authorize a disturbance of that finding.

III. Error is assigned in the admission in evidence of what purported to be a 32-caliber pistol bullet shown to have been cut out of one of the bows constituting the framework of the top of the Ford car in which the officers were riding. The objection to this testimony as tending to show an incriminatory circumstance is urged, not upon the ground of the inadmissibility of testimony of this character, but that there was no showing that the bullet found in the bow of the car was not there before the night of the difficulty, and that the car had not been properly guarded to prevent the firing of the bullet into the bow after the night of the difficulty. Neither of these grounds is supported by the facts. Mrs. Conrey, the widow of one of the officers killed and who owned the car, testified in effect...