State v. Phillips

• Decision Date: 08 June 1959
• Docket Number: No. 2,No. 46507,46507,2
• Citation: 324 S.W.2d 693
• Parties: STATE of Missouri, Respondent, v. John Gilbert PHILLIPS, Appellant
• Court: Missouri Supreme Court

Page 693

324 S.W.2d 693

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

No. 46507.

Supreme Court of Missouri, Division No. 2.

June 8, 1959.

John G. Phillips, appellant, in pro. per.

John M. Dalton, Atty. Gen., Robert T. Donnelly, Special Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

About two-thirty o'clock on July 19, 1954, Louis Otto, then nineteen years old, left his home in Crystal City to go to work at House Springs where he managed a concession stand in the park. Louis did not arrive at his destination and two days later his body was found eight miles north of Crystal City, about fifty yards off of Highway MM, near Barnhart, with a bullet wound through his head and another in the region of his eighth rib on the right side. The appellant, John Gilbert Phillips, was charged with Louis' murder and upon being tried a second time was found guilty of murder in the first degree and sentenced to life imprisonment. Upon this his second appeal Phillips claims that a verdict of not guilty should have been directed because there was no proof of the venue of the crime in Jefferson County, because there was no proof that Louis died from a wound inflicted by the gun offered in evidence, and because the state's evidence failed to show his guilt beyond a reasonable doubt. It is also urged that he is entitled to a new trial for the reasons that the state was permitted to reopen the case and attempt to prove venue in Jefferson County, that the court erred in failing to give an instruction on the effect of the defendant's failure to testify, and, finally, that the court erred in admitting his confession in evidence and in improperly instructing the jury upon the subject of the voluntariness of his confession.

In making some of his contentions the appellant entirely ignores the fact of his former appeal and the force of the decision, State v. Phillips, Mo., 299 S.W.2d 431, by which he was granted a new trial. While 'the law of the case' is not a very popular doctrine and has its limitations (3 Am.Jur., Secs. 985-1000, pp. 541-554), particularly in criminal cases, it is in some circumstances as to certain matters peculiarly appropriate and in the absence of demonstrable error in the first decision (5B C.J.S. Appeal and Error Secs. 1824-1827, pp. 193-200) the doctrine governs successive appeals involving substantially the same issues and facts. 5 Wharton's Criminal Law & Procedure, Sec. 2254, p. 512; State v. Allen, 363 Mo. 467, 251 S.W.2d 659. The appellant does not contend that the decision on his former appeal was erroneous in any respect, he ignores it and urges some issues as though they were open questions of first impression. Upon his former appeal the appellant was granted a new trial chiefly because of error in the giving of an instruction and thereafter the court gave its opinion upon some other matters which may not have been necessary to a disposition of the appeal, but the court did hold, necessarily, that the evidence of his guilt of murder in the first degree was sufficient for the jury. State v. Allen, supra; State v. Thomas, Mo., 180 S.W. 869. In this connection, the evidence in the two trials was substantially identical; in this trial it is worthy of note and commendation that the state's evidence was well organized, presented in chronological order and is perhaps more cogently convincing than upon the former trial. The essential facts and circumstances are set forth in the former opinion and it is not necessary to again detail them upon this appeal; it is sufficient to say that the record has been carefully re-examined and the evidence supports the charge and finding of the appellant's guilt in every respect, in fact the circumstances resemble those involved in State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245.

Louis Otto was well known to the Sheriff of Jefferson County and when his body was found off of Highway MM the sheriff, from his cap and clothes, identified it as Louis. As indicated the body was found 100 to 125 feet south of a creek just off of Highway MM about one and one half miles from Barnhart. Before submission to the jury the state was permitted to reopen the case and the sheriff testified that Louis' body was found in Jefferson County, Missouri. The court's discretion in thus permitting the state to reopen its case (23 C.J.S. Criminal Law Sec. 1055, p. 462) aside, the circumstances together with this court's judicial notice that Barnhart is in Jefferson County (State v. Kenyon, supra) plainly established the venue of the crime as Jefferson County.

As stated, there were two bullet wounds, one through Louis' head from the left temple and one near the eighth rib on the right side. The bullet from the head wound was not found but the coroner recovered the pellet from the chest wound. After the defendant wrecked Louis' car and started down the road a gun was found in the glove compartment of the automobile and there were three live bullets and two spent bullets in the gun. A ballistics expert, after tests, was of the opinion that the gun found in the glove compartment had fired the bullet found in Louis' body. Aside from the circumstantial evidence of Phillips' possession of the gun when he wrecked the automobile, he admitted its possession after taking it from a locker in Monroe, Louisiana. While the coroner was of the opinion that the wound through Louis' head, not the one in the chest, was the fatal wound, the jury could reasonably infer and find that the appellant had fired both bullets and thus establish the cause of death and the appellant's responsibility. State v. Lepke, Mo., 305 S.W.2d 432; State v. Dickson, 78 Mo. 438.

The appellant wrecked Louis Otto's automobile near the Wilde farm, about two miles south of Columbia, Illinois. He was there detained by three civilians who turned him over to the Chief of Police of Columbia and he refused to give a justice of the peace and the chief of police any information other than to deny that he had any connection with the automobile. He claimed that he had been hitchhiking and spent the two previous nights in hotels in Cape Girardeau and Poplar Bluff. Upon his refusal to talk to the officials in Columbia Phillips was delivered into the custody of the Sheriff at Waterloo, Illinois. It was not then suspected that he had any connection with Louis' murder--the fact was not then known, the officers were suspicious that he was guilty of some offense in connection with the automobile and it was in that regard that they were questioning him. He first denied any knowledge of the automobile or any connection with it. When the officers confronted him with the fact that the license plate on the automobile had been issued to his half sister, Mrs. Hunter, in East St. Louis for a Pontiac automobile, Phillips changed his story, admitted stealing the plate from his half sister's automobile and claimed that a soldier driving the Dodge had picked him up near Cape Girardeau, Missouri, and had left him with the automobile at Chester, Illinois. He then said...