State v. Pepe

• Decision Date: 17 February 1932
• Docket Number: 31376
• Parties: The State v. John Pepe, Appellant
• Court: Missouri Supreme Court

46 S.W.2d 862

329 Mo. 774

The State v. John Pepe, Appellant

No. 31376

Supreme Court of Missouri

February 17, 1932

Appeal from St. Louis County Circuit Court; Hon. Jerry Mulloy, Judge.

Affirmed.

Howard Sidener and Verne Lacy for appellant.

(1) The evidence was insufficient to support the verdict. (a) The court erred in failing to sustain the demurrer offered to the indictment. State v. Grainger, 203 Mo. 587; Kelley's Criminal Law, p. 51, sec. 51; Musty v People, 31 Mich. 112; State v. Stowe, 132 Mo 199; Section 22 of Bill of Rights. (b) The demurrer filed by the defendant at the close of the State's case should have been sustained and the jury instructed to discharge the defendant. The court erred in overruling the demurrer. The evidence introduced in behalf of the State was not sufficient to sustain the verdict. State v. Buckley, 274 S.W 74; State v. Hollis, 284 Mo. 627; State v. Nagle, 32 S.W.2d 596; State v. Francis, 199 Mo. 671; State v. Gordon, 199 Mo. 561; State v. Scott, 177 Mo. 665; State v. Ruckman, 253 Mo. 487; State v. Tracey, 284 Mo. 619; State v. Archer, 6 S.W.2d 912; State v. Matticker, 22 S.W.2d 647; State v. Pritchett, 39 S.W.2d 794. (c) The State failed to introduce any evidence which connected the defendant with the commission of the offense charged in the indictment. Its failure to so connect the defendant should have caused the court to discharge him upon demurrer by a directed verdict. State v. Nave, 283 Mo. 35. (d) The State failed to overcome the presumption of innocence of the defendant that existed in his favor throughout the entire trial. State v. Scott, 177 Mo. 665; State v. Capps, 311 Mo. 697; State v. Francis, 199 Mo. 671; State v. Buckley, 274 Mo. 74. (e) Evidence which raises a strong suspicion or probability of the defendant's guilt is insufficient to sustain a verdict of conviction. State v. Scott, 177 Mo. 665; State v. Gordon, 199 Mo. 561; State v. Murphy, 324 Mo. 854; State v. Pritchett, 39 S.W.2d 794; State v. Perkins, 18 S.W.2d 6; State v. Matticker, 22 S.W.2d 647; State v. Archer, 6 S.W.2d 912; State v. Capps, 311 Mo. 683; State v. Hollis, 284 Mo. 627. (f) Evidence to sustain a conviction must be clear and conclusive and should exclude every reasonable doubt of defendant's innocence. State v. Duncan, 317 Mo. 451; State v. Buckley, 274 S.W. (Mo. Sup.) 74; All cases cited under (a). (g) If all the evidence in the record is admitted to be true, it is not inconsistent with defendant's innocence. State v. Tracey, 284 Mo. 619; State v. Capps, 311 Mo. 685; State v. Ruckman, 253 Mo. 501. (h) The proof on the part of the State failed to show any agency of the defendant with the kidnapping or confinement of Hoffman. It was necessary to connect the defendant with the commission of the crime in order to convict him. (2) It was reversible error to admit in evidence the three .45 calibre automatic pistols, for the reason that wherever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved and not be themselves presumed. State v. Lackland, 136 Mo. 26; Starkie on Evidence (10 Am. Ed.) 80; Douglass v. Mitchell's Ex'r., 35 Pa. St. 440; United States v. Ross, 92 U.S. 281; McAleer v. McMurray, 58 Pa. St. 126. (a) A presumption of any fact is properly an inference of that fact from other facts that are known. (b) That presumptions must rest upon established facts and not upon other presumptions has repeatedly been held. Richmond v. Aiken, 25 Vt. 324; Pennington v. Yell, 11 Ark. 212; O'Gara v. Eisenlohr, 38 N.Y. 296; Railway Co. v. Henrice, 92 Pa. St. 431; Yarnell v. Railway Co., 113 Mo. 570. (3) Sec. 3681, R. S. 1929, provides, among other things, that "the court must instruct the jury in writing upon all questions of law arising in the case, which are necessary for their information in giving their verdict, and failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial." State v. Walker, 98 Mo. 95; State v. Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32; State v. Kennedy, 177 Mo. 131; State v. Roberts, 201 Mo. 702; State v. Thompson, 293 Mo. 116; State v. Gentry, 8 S.W.2d 20. The court's failure to instruct and require the jury to find that a conspiracy existed was fatal error. It is only when a conspiracy has been established that the acts of one are the acts of all. In so failing to instruct the jury that a conspiracy must be shown, the court failed to instruct on all the law necessary for the jury's information. State v. Walker, 98 Mo. 95; State v. Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32; State v. Kennedy, 177 Mo. 131; State v. Roberts, 201 Mo. 702; State v. Thompson, 293 Mo. 116; State v. Gentry, 8 S.W.2d 20. (a) The court should have instructed the jury that the accused was present, aiding and abetting in the commission of the crime, but failed to do this. State v. Brazel, 270 S.W. 273. (b) In order to hold the defendant responsible for the acts of another, it must be shown that he authorized such an act or aided or directed it. The court failed to tell the jury the above, and failed to tell the jury that there must be a showing of acts and circumstances indicating a joint purpose between the defendant and other parties to aid each other in the commission of crime. State v. Thompson, 293 Mo. 116; Sec. 1287, p. 647, 16 C. J.; United States v. Richards, 149 F. 452; Kelly, Crim. Law, sec. 368.

Stratton Shartel, Attorney-General, Don Purteet, Assistant Attorney-General, for respondent.

(1) The trial court properly overruled the demurrers to the evidence which defendant Pepe interposed, both at the close of the State's case and at the close of the entire case. The evidence, while circumstantial, was amply sufficient to make a case for the jury. This court will not interfere with the verdict of the jury if the record contains substantial evidence in support thereof. State v. Sinovich, 329 Mo. 909; State v. Gillman, 44 S.W.2d 146. (2) The trial court committed no error in permitting the introduction of testimony which identified certain weapons as the weapons found at the home and in the basement of the defendant, Sinovich, where the kidnapped person was found. State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877; State v. Gillman, 44 S.W.2d 146.

OPINION

Henwood, J.

By an indictment filed in the Circuit Court of St. Louis County, the defendant and Claude Gillman and Joseph Sinovich were jointly charged (under Sec. 4021, R. S. 1929) with kidnapping one Jacob Hoffman. Severances were taken, and at a separate trial the defendant was found guilty and his punishment assessed at imprisonment in the penitentiary for five years. He was sentenced accordingly and appealed. Gillman and Sinovich were convicted at separate trials and sentenced to imprisonment in the penitentiary for ten years and two years, respectively. Their separate appeals were submitted at the October term, 1931, of this court, and the judgments entered against them have been affirmed. [State v. Gillman, 44 S.W.2d 146; State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877.]

Jacob Hoffman, the victim of the alleged offense, testified, in substance, as follows: He conducted a cigar store at 112 North Broadway in the city of St. Louis. His office was on the second floor of the same building. About 6:30 or seven o'clock in the evening of Tuesday, February 18, 1930 while he and four other men were in the office, three men entered the office, each brandishing an automatic pistol and each masked with a handkerchief. These three men "robbed" him, placed taped glasses over his eyes, led him down the stairway to the street, and put him in the back seat of an automobile. Two of these men got in the back seat with him, one on each side of him, and the other got in the front seat with the driver of the automobile. The driver was seated behind the steering wheel, ready to start the automobile, when he (Hoffman) and the other three men entered it. The automobile was driven north to the first street corner, then west to the next street corner, then south, for thirty or forty-five minutes, to a house, "off of the hard roads," where these men removed the taped glasses from his eyes, blindfolded him with a bandage, told him he "was held," and kept him, as a prisoner, that night and the next day. The second night, Wednesday, February 19, he was taken in an automobile, after a drive of twenty or thirty minutes, to another house, where he was kept that night and the next day. Two men stayed in the room he was in that night, and one of the men "slept" with him. The third night, Thursday, February 20, he was taken in an automobile, after a drive of an hour, to a small room in the cellar of another house. Three men rode with him in the automobile on the trip to this house, and these three men were assisted by one or two other men in moving a bed and some other things into the cellar of this house. The bed was placed in the small room for his use that night. There was an opening in the partition between the small room and an adjoining room in the cellar, but no door at the opening. He was given some bread and coffee that night. The man who brought the bread and coffee to him told him he could remove his blindfold while he ate his lunch, but not until "he [the man] had gotten out" of the room. With his blindfold removed, he observed that the only window in the room was covered, and that the room was very dark. He heard men talking in the adjoining room that night. Some ham and eggs and coffee were brought to him about eight o'clock the next morning. Between ten and eleven o'clock that morning, he heard officers knocking and kicking on the cellar door, and heard an officer say, "Come out of there." Thereupon, he removed his blindfold, and...