State v. Porter

• Decision Date: 23 December 1918
• Docket Number: No. 21033.,21033.
• Parties: STATE v. PORTER.
• Court: Missouri Supreme Court

207 S.W. 774

276 Mo. 387

STATE v. PORTER.

No. 21033.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from Circuit Court, Cooper County; Hopkins B. Shain, Special Judge.

Ed. Porter was convicted of murder in the second degree, and he appeals. Reversed and remanded.

John Cosgrove, of Boonville, for appellant. Frank W. McAllister, Atty. Gen. (Thomas J. Cole, of Joplin, of counsel), for the State.

WALKER, P. J.

Appellant and Walter Mills were charged by information in the circuit court of Cooper county with murder in the first degree, in the stabbing and killing of one Philip Carpenter, on the 12th day of May, 1917. After a severance, appellant was, at the January term, 1918, of said court, convicted of murder in the second degree, and his punishment assessed at 25 years' imprisonment in the penitentiary. From this judgment he appeals.

This is the second appeal in this case. Upon the former trial, in which the appellant was also tried severally, he was convicted of murder in the second degree, and upon an appeal the case was reversed and remanded. State v. Porter, 199 S. W. 158. There is no material difference in the evidence preserved for our review in the two cases. We have incorporated the material facts in this case in the opinion where deemed necessary to an intelligent discussion of the matters at issue; for a fuller statement, reference may be made to the former opinion. The errors complained of will be reviewed in the order in which they have been presented by counsel for appellant.

I. The giving of an instruction for murder in the first degree is assigned as error. Conceding, as we must in the face of the facts, that there was no evidencee to sustain this instruction and that the giving of same was error, it is robbed of its prejudicial effect by the verdict which found the appellant guilty of a less offense. We have uniformly held, except in the case of State v. Minor, 193 Mo. loc. cit. 609, 92 S. W. 466, in which the ruling in this regard was erroneous, that the giving of an instruction for a higher degree of an offense, although unauthorized is harmless where one is convicted of a lower degree. State v. Morehead, 271 Mo. loc. cit. 88, 195 S. W. 1043; State v. Goodwin, 271 Mo. loc. cit. 83, 195 S. W. 725; State v. Fleetwood, 190 S. W. 1; State v. Hutchinson, 180 S. W. 1001; State v. Darling, 199 Mo. loc. cit. 202. While we are required to render judgment on the record in criminal cases (section 5312, R. S. 1909), there is no more authority for the reversal of a criminal than a civil case where it is disclosed that the error complained of does not affect the merits of the action, or, in other words, is not prejudicial (section 2082, R. S. 1909). This contention of the appellant is therefore overruled.

II. It is contended with insistence by the learned counsel for appellant that error was committed in the giving of instructions numbered 9 and 10, at the request of the state. These instructions are as follows:

"No. 9. The court instructs the jury that every person who is present at the commission of a felony, aiding, abetting, assisting, or encouraging the same by words, gestures, looks, or signs, is in law deemed to be an aider and abettor, and is liable as principal. But, on the other hand, mere presence at the commission of a felony or other wrongful act does not render a person liable as a participator therein; if he is only a spectator, innocent of any unlawful intent, and does not aid, abet, assist, or encourage those who are actors, he is not liable as principal or otherwise. Therefore, although it is charged in the information in this case that Walter Mills and Ed. Porter, at the time and place as charged in the information, feloniously, willfully, deliberately, premeditatedly, on purpose, and of their malice aforethought cut and stabbed Philip Carpenter, giving to the said Philip Carpenter a mortal wound in and upon the back of the neck, from which he died at the time and place mentioned in the information, yet it is not necessary for the state, in order to establish the guilt of defendant, Ed. Porter, to prove that Ed. Porter actually assaulted and cut and stabbed Philip Carpenter with a knift, as charged in the information; but if the jury find and believe that one Walter Mills gave the fatal blow with a knife, which caused Philip Carpenter's death, as charged in the information, and that said Walter Mills is guilty of murder as explained in other of these instructions, and the jury further find that Ed. Porter knowing the unlawful intent of said Walter Mills, or having the same common purpose to kill Philip Carpenter in his mind, was present, aiding, abetting, helping, advising, comforting, maintaining, or assisting the said Walter Mills in such killing in any way or by any means, then such defendant is guilty of murder equally with said Walter Mills, who the jury may find and believe actually assaulted and stabbed Philip Carpenter, thus giving him, the fatal blow, which caused his death, as aforesaid, and the jury should so find.

"No. 10. The jury are instructed that in order to convict defendant, Ed. Porter, it is not necessary that the jury should believe that he actually assaulted and stabbed Philip Carpenter with a knife as charged in the information, or that he even took hold of him or even touched his person; but if the jury believe from the evidence that one Walter Mills assaulted and stabbed Philip Carpenter with a knife, inflicting the mortal wound from which said Philip Carpenter died, as charged in the information, and you further believe that defendant, Ed. Porter, was present, and knowing the unlawful intent or with the same common purpose in view was aiding, abetting, helping, comforting, encouraging, or for the purpose and with the intent to aid and assist if necessary, the said Walter Mills in such killing, if it became necessary so to do, then the defendant, Ed. Porter, so doing or so present, is guilty of murder in the first degree equally with said Walter Mills, provided that said Walter Mills assaulted and stabbed Philip Carpenter with said knife and inflicted said mortal wound from which said Philip Carpenter died, as charged in the information, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, as defined and explained in other of these instructions.

"And you are further instructed that if you find and believe from the evidence that at the time and place mentioned in the information one Walter Mills, willfully, premeditatedly, on purpose, and of his malice aforethought, as explained in other of these instructions, but without deliberation, stabbed Philip Carpenter with a knife, thus and thereby inflicting upon the said Philip Carpenter a mortal wound of which said mortal wound the said Philip Carpenter at the time and place mentioned in the information died, and you further find that defendant, Ed. Porter, was present, and knowing the unlawful intent or with the same common purpose in view was aiding, abetting, helping, comforting, encouraging, in any way or by any means, the said Walter Mills in such killing, then defendant, Ed. Porter, is guilty of murder in the second degree equally with said Walter Mills, and the jury should so find, and assess his punishment for such second degree murder at imprisonment in the penitentiary for any length of time, not, however, less than 10 years."

These instructions are drawn upon the hypothecated fact of the criminal responsibility of the appellant, in having aided, abetted, assisted, or encouraged Walter Mills in the assault with a deadly weapon which resulted in the homicide. Whatever may be said as to their correctness, under a proper state of facts, it remains to be determined whether there is any evidence to sustain them. The relevant facts, gleaned from the testimony of Walter Mills the woman, and appellant, the only eyewitnesses, are as follows: Appellant and Walter Mills, negroes, at some time between 10 and 11 o'clock on the night of the homicide, were at the house of one Ash Burnham, near the intersection of two alleys in Boonville, when appellant heard some one calling him. In response to the call, he and Mills went...