State v. Phillips

• Decision Date: 11 March 1957
• Docket Number: No. 1,No. 44888,44888,1
• Parties: STATE of Missouri, Respondent, v. John Gilbert PHILLIPS, Appellant
• Court: Missouri Supreme Court

Page 431

299 S.W.2d 431

STATE of Missouri, Respondent, v. John Gilbert PHILLIPS, Appellant.

No. 44888.

Supreme Court of Missouri, Division No. 1.

March 11, 1957.

No attorney for appellant.

John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., David Donnelly, Sp. Asst. Atty. Gen., for respondent.

HYDE, Judge.

Defendant appeals from the judgment and sentence adjudging him guilty of murder in the first degree and fixing his punishment at imprisonment for life in the penitentiary in accordance with the verdict of the jury.

Defendant contends that he was entitled to a directed verdict so we will state the facts shown by the State's evidence. Defendant was charged with the murder of Louis Otto, 18 years old, who left his home in Crystal City, Jefferson County, Missouri, in his Dodge automobile about 3:00 P.M. July 19, 1954, to go to work in House Springs, where he was a Dairy Queen manager. Louis Otto (hereinafter referred to as deceased) did not reach his destination and that night about 10:00 P.M. defendant overturned the car, in which deceased had left home, south of Columbia, Monroe County, Illinois, by colliding with a driveway post in front of a farmer's house. Defendant was seen to leave the car and start up the road toward Columbia. A revolver was found in the glove compartment of the car with two empty chambers and three live shells in it. (Another live shell was found on the floor of the car.) Defendant was picked up by three men in another car, who stopped at the scene of collision and then drove up the road after him, and who turned him over to the Columbia Chief of Police. Defendant was then taken to Waterloo, the county seat of Monroe County, and placed in the custody of the Sheriff. (Monroe County, Illinois, is directly across the Mississippi River from Jefferson County, Missouri.) It was found that an Illinois license attached to the car with bailing wire had been issued for a car owned by defendant's sister and her husband who lived in East St. Louis, Illinois. The Missouri license, which was on the car when deceased left home in it, was never found.

On July 21st, Shirley Otto, sister of deceased, went to Columbia with Sheriff Church of Jefferson County and identified the car. Defendant, after first denying he had been in the car, had told the officers (Sheriff Goeddel of Monroe County, Illinois State Policeman Reicher, and F.B.I. Agent Hafen) that he was hitchhiking from Cape Girardeau toward St. Louis when he was picked up by a soldier driving the Dodge car and was given a ride to Chester, Illinois. He said the soldier parked the car in Chester, telling him he would be back in about a half-hour, but that the soldier did not come back so he got in the car, drove to East St. Louis where he visited his sister. He said he then drove south to Renault, Illinois, where he visited friends and was on his way back to East St. Louis when he wrecked the car near Columbia. The officers checked the car and found a sticker on it, showing it had been greased on July 19th, and that the mileage on the speedometer was only 117 miles more than the mileage shown on the grease sticker. They determined that if the car had been driven from Crystal City to Chester and then to East St. Louis and back again to Renault and Columbia, the mileage would have been much greater and they so informed defendant. A brother of deceased also talked to defendant, trying to find out what became of deceased, but got no information. However, about 10:30 P.M. on July 21st, defendant indicated to the F.B.I. Agent a desire to change his story and tell more facts but he wanted to 'be assured of what he might get or what could happen to him.' Defendant said 'he didn't mind serving time in the penitentiary but he didn't want to get the gas chamber.' At defendant's request Sheriff Church was called and both the F.B.I. Agent and defendant talked to him. Defendant said he received no positive assurance of any thing but was told that the Jefferson County Prosecuting Attorney might come over and talk to him the next day. Nevertheless, defendant said 'he wanted to get it off his mind and get the thing over with', and so made another statement to the F.B.I. Agent and Sheriff Goeddel.

In this statement, defendant said in hitchhiking from Cape Girardeau he met a soldier who said his name was Harry. They got a ride together and then were separated but met again at Crystal City. The soldier had a pint of whiskey which they drank and soon after were picked up by a boy driving the car defendant later wrecked near Columbia, Illinois. Defendant said the soldier got in first and sat next to the boy and he sat next to the soldier, all three in the front seat. He said that after driving on the Highway about ten miles the soldier pulled out a gun, pointed it at the boy and said he wanted the car and told him to pull off at the next side road. They turned off on a blacktop road and after driving about one mile turned off on a gravel road about 50 yards to a creek. There was some discussion about what to do with the boy and the soldier decided to put him in the trunk. He had the boy take some tires out of the trunk but after he did so he ran across the creek. The soldier ran after him, caught him and fired two shots. The soldier came back and said: 'Let's get out of here' or 'get this thing out of here.' Defendant got in and drove the car to East St. Louis. Defendant said he told the soldier he was going to visit his sister and the soldier said he didn't want to go there but would call by later. He let the soldier out and never saw him again. After this statement was made, the F.B.I. Agent, Sheriff Goeddel, and an Illinois State Policeman, went to Jefferson County, meeting Sheriff Church and other Missouri officers, and looked for the place defendant had described. Early in the morning of July 22nd, they found the body of deceased across Glaze Creek in a little patch of trees. He had been shot twice, in the chest and in the head.

It was admitted at the trial that a bullet found in the body of deceased had been fired from the gun found in the car defendant wrecked near Columbia, Illinois. The State also produced as a witness, a filling station employee, who said deceased drove his car into the station about 3:00 P.M. July 19th and bought gas. He said there was only one person with him and identified defendant as that person. On the same day that deceased's body was found, defendant waived extradition and made another statement in which he said only he was in the car with deceased and that he used the gun to make him drive off the road to the creek. He said he had him take the tires out and intended to put him in the trunk but then decided it was too hot and he might smother, so he decided to take him across the creek and tie him with a rope he found in the car. He said, when they were standing across the creek talking about tieing him, deceased grabbed for the gun and it went off. He said he did not remember shooting twice. (No rope was found by the officers at the scene.) Defendant repudiated this statement at the trial and again claimed a soldier was with him and fired the shots, saying the statement he gave the F.B.I. Agent was the correct account. He said he made the July 22nd statement saying that he did the shooting because he was threatened with mob violence if he was taken to Jefferson County and the Prosecuting Attorney promised he would be kept in jail at Clayton if he made it.

It is obvious under this evidence that a jury case was made. Not only was defendant in possession of the car in which deceased left home and the revolver with which he was shot, but he also knew where his body was and directed the officers to it. Furthermore, he was identified as the only other person in the car with deceased when he was last seen. All this was overwhelming circumstantial evidence and amply sufficient without defendant's oral admissions and written confession. See State v. Clark, Mo.Sup., 277 S.W.2d 593; State v. Bayless, 362 Mo. 109, 240 S.W.2d 114; State v. Taylor, 347 Mo. 607, 148 S.W.2d 802; State v. Hall, Mo.Sup., 231 S.W. 1001; State v. Howard, 118 Mo. 127, 24 S.W. 41. Defendant says the State failed to prove the homicide occurred in the perpetration of a robbery. The facts that defendant had deceased's car under the circumstances shown, and was with him in the car when he was last seen, are sufficient circumstantial evidence to show robbery with intent to take deceased's car from him. Furthermore, deceased's empty billfold was found in the wrecked car. See State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Burnett, Mo.Sup., 293 S.W.2d 335, concerning resistance of deceased. Defendant also says the ownership of the car was not proved, 'nor was possession, control, nor that the automobile was under the auspices of one Louis Otto at all.' Apparently, this is based on the description of the car by the officers as a 1948 or 1947 Dodge. However, deceased's sister said it was a 1947 black Dodge four door sedan and that deceased had had it since February of 1953; and she identified it when she went to Illinois with Sheriff Church to see the car defendant wrecked. This certainly was sufficient proof that defendant took the car deceased was driving. Defendant relies on such cases as State v. Richardson, Mo.Sup., 36 S.W.2d 944; State v. Conway, 351 Mo. 126, 171 S.W.2d 677; and State v. Missey, Mo.Sup., 234 S.W.2d 777 in which circumstantial evidence was held insufficient. However, in such cases the circumstances shown could only cast suspicion, whereas in this case defendant had the victim's automobile and the weapon with which he was killed, knew where his body was and directed the officers to it. These circumstances and others noted were very strong proof of defendant's guilt. Defendant further says the State did not make any investigation to determine what finger prints were on the revolver. Of course, this was not essential to prove...