State v. Pippin

• Decision Date: 25 March 1931
• Docket Number: 30592
• Citation: 36 S.W.2d 914,327 Mo. 299
• Parties: The State v. Henry Pippin, Appellant
• Court: Missouri Supreme Court

36 S.W.2d 914

327 Mo. 299

The State v. Henry Pippin, Appellant

No. 30592

Supreme Court of Missouri

March 25, 1931

Appeal from Oregon Circuit Court; Hon. Will H. D. Green Judge.

Reversed and remanded.

Barton & Moberly for appellant.

(1) A conspiracy cannot be established by a mere suspicion; nor does evidence of mere relationship between the parties or association show a conspiracy. 12 C. J. 638; State v May, 142 Mo. 135; State v. Bell, 316 Mo. 185; State v. Porter, 276 Mo. 387; State v Thompson, 293 Mo. 116. (2) The mere presence of one at the commission of a crime is not sufficient to constitute aiding and abetting. 16 C. J. 132; State v. Obdur, 317 Mo. 372; State v. Larkin, 250 Mo. 218. (3) An instruction without evidence to support it is erroneous and should not be given. State v. Johnson, 111 Mo. 578. Where the evidence does not show a conspiracy, an instruction as to such conspiracy is neither required nor proper. 30 C. J. 396; State v. King, 203 Mo. 560. On the contrary, the jury should, where the evidence fails to establish guilty complicity on the part of one of the defendants, be instructed to render a verdict of not guilty as to such defendant. 12 C. J. 645. (4) The only instruction defining the crime, or authorizing a conviction, being predicated upon a conspiracy, the giving of Instruction 3 as to the law of one being present, aiding and abetting, was confusing and improper. Again there was no evidence that defendant aided, encouraged or abetted the robbery, and for that reason this instruction should not have been given.

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

(1) The evidence does not reveal that required amount of substantial evidence of defendant's guilt of the crime charged. It is wholly insufficient to show that there was any conspiracy as between the defendant and defendant McElrath to commit or perpetrate the crime. So far as the evidence of the State is concerned it showed only that the defendant was present at the scene of the robbery. There is no substantial evidence to show that he was aiding and abetting commission of the crime. A conspiracy to commit a crime or to show that one was aiding and abetting in the commission of it must be shown by substantial evidence the same as any other element in the crime. On the other hand, all of his remarks at the scene of the crime tended to show that he was opposed to the robbery of Miss Courtwright. A case cannot be made out on mere suspicion and building inference upon inference. State v. Odbur and Shade, 317 Mo. 377; State v. Larkin, 250 Mo. 234; State v. Bell, 316 Mo. 193. (2) If there is not sufficient evidence to show a conspiracy or that defendant was aiding and abetting the crime, then, the court's instructions numbered one and two were erroneous because unsupported by the evidence. State v. Johnson, 111 Mo. 584; State v. King, 203 Mo. 560.

OPINION

Henwood, J.

Henry Pippin and Jason McElrath were jointly charged, in the Circuit Court of Oregon County, with robbery in the first degree. A severance was granted, and the State elected to try Pippin first. The jury found him guilty and assessed his punishment at imprisonment in the penitentiary for five years. He was sentenced in accordance with the verdict, and, in due course, appealed.

The pertinent evidence is fairly stated, in substance, in the Attorney-General's brief. This statement of the evidence (allowing for some alterations) is as follows:

"The prosecuting witness, Lora Courtwright, lived with her father mother and brother, in Cedar Bluff Township, Oregon County Missouri. A few days before the 7th day of February, 1929, Lloyd Courtwright, her brother, employed defendant to haul a load of cotton to market at Maynard, Arkansas. He was to use his own team and wagon. Between four and five o'clock in the morning of February 7, 1929, he and Miss Courtwright left the latter's home with the cotton loaded in the wagon. The wagon was equipped with an ordinary spring seat. Maynard was twenty-two miles distant from Miss Courtwright's home. The roads were muddy, it being a misty, rainy day, turning to snow later on in the evening. They arrived in Maynard between eleven and twelve o'clock of that day. On the trip, defendant, in conversing with Miss Courtwright, indicated that he wanted to buy some feed, but that he did not have any money, saying: 'I ain't got a red penny to my name.' Miss Courtwright informed him that he would probably have to make a note for the hay, whereupon defendant said: 'No, I will get the money.' After their arrival in Maynard, the defendant unloaded the cotton at the gin, and gave Miss Courtwright a slip or due bill for the amount of money the cotton sold for. They went to a bank, where she cashed the check or due bill for the cotton. While in the bank, Miss Courtwright paid defendant $ 4.75, for his services in hauling the load of cotton. When she left home that morning, she had in her possession $ 14 in cash. After having paid defendant for his services and having purchased a dress and some mule shoes and some other articles, she had somewhere in the neighborhood of $ 67, in her purse, in cash. Along about two o'clock in the afternoon, they started on the return journey to her home. While enroute defendant said: 'Your father puts a heap of confidence in me, don't he?' Whereupon she said: 'I don't know, how is that?' Defendant replied: 'Well, he trusted me down here with you, you having all that money on you; if you get home this time, you will never go with me again on a load of cotton.' Thereupon she wanted to know the reason why. Defendant replied: 'Well, you just wait.' She then said: 'I won't care if I never see you again or not.' As they drove along, defendant would stop and rest his horses, from time to time, saying that one of them was sick. At another time, he said that he believed they were off the road. Defendant, upon being requested to see whether he was on the right road or not, passed the incident off by laughing. About eight or nine o'clock that night, as they were driving along the road, it commenced snowing. As they passed a little store alongside the road, the door opened and the proprietor asked: 'What did you get for your cotton?' Defendant replied in loud voice: 'Let her snow.' McElrath was a brother-in-law of the proprietor of the little store, and stayed in the store when not working out for someone else. She did not see McElrath when the door opened, as they passed the store. Her home was a little over a quarter of a mile from the store. Driving on a little more than one hundred feet from the store, she saw two men standing near a hickory tree, which was alongside the road. As they were going by the hickory tree, one of the men stepped out and grabbed the horses. The other man, the larger of the two, climbed into the wagon, over the top of the front wheel, and said: 'Hands up, and hand over your money.' Defendant said: 'What does all this mean?' The man who climbed into the wagon had a rag in his hand, which he put over Miss Courtwright's head and mouth. He then jerked her back over the spring seat, where he held her, and commenced cursing and asking for the money. She called to defendant to help her. Defendant thereupon replied: 'This is not done yet, I tell you; I know one of you men.' The man who was holding Miss Courtwright said to the man who was holding the team: 'You get back in here and get this money off the girl while I am holding her.' During the scuffle she dropped her purse, which contained $ 67. The man who was holding the team got back in the wagon, struck matches and found the purse, whereupon both men jumped out of the wagon and ran away. During the struggle, Miss Courtwright bit one of the men, somewhere on the hand. Defendant did not make any effort to prevent the robbery. Miss Courtwright did not, at any time, see a gun in the hands of the men. She testified that one of the men said to the other: 'Have you got my gun?' The other said: 'No, I have got my gun in my pocket.' When they got to defendant's house, which was about two hundred yards from the scene of the robbery, defendant told his wife that the robbers took $ 1.25 away from him. On the road, prior to the robbery, defendant told Miss Courtwright that he had bought a new pair of shoes, overalls, and a roll of kodak films, with the money which she had paid...