State v. Powell
| Decision Date | 30 June 1936 |
| Citation | 95 S.W.2d 1186,339 Mo. 80 |
| Parties | The State v. Victor Earl Powell alias Richard E. Powell, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.
Affirmed.
W H. Foulke for appellant.
Roy McKittrick, Attorney General, and Frank W Hayes, Assistant Attorney General, for respondent.
(1) There was substantial evidence to support the verdict. State v. Hart, 237 S.W. 473; State v. Copeland, 71 S.W.2d 746. (2) The court did not err in refusing to give an instruction on murder in the second degree. Sec. 3982, R. S. 1929; State v. Hamilton, 85 S.W.2d 35; State v. Merrell, 263 S.W. 118; State v. Aguelera, 33 S.W.2d 901; State v. Hart, 237 S.W. 482. (3) The court did not err as to its ruling on the testimony of witness Dugan. State v. Lindsay, 80 S.W.2d 123; State v. Buckner, 80 S.W.2d 167; State v. Barbata, 80 S.W.2d 865.
Bohling, C. Cooley and Westhues, CC., concur.
Victor E. Powell, appellant, and Ledrew B. Harmon Charles Napper, Byron Wolff, Glenn Harmon and William B. Moors were charged by information with the murder in the first degree of Brooks L. Van Hoose. A severance was granted appellant and he appeals from a judgment imposing, in accord with the verdict, a sentence of life imprisonment. Several of the assignments of error, by different allegations, attack the sufficiency of the evidence to sustain the verdict. The facts connected with the offense are set forth in detail in State v. Wolff, 337 Mo. 1007, 87 S.W.2d 436, which, upon examination, we find, so far as essential, correspond with the facts disclosed in the bill of exceptions of the instant case, with the material exceptions that in the instant case appellant made statements, verbal and in writing, of his participation in the offense, and the witness Charles Napper did not testify. The only evidence in the case is that adduced from witnesses offered by the State.
Mr. Van Hoose, a man of about sixty-two years and of means, was engaged in the quarry, realty, loan and investment business, with an office in Carthage, Missouri, and lived alone approximately five miles southwest of Carthage, about one mile south of Federal highways 71 and 66 (coincident there) on a graveled highway. He was last seen alive by a business associate when he left the office about six P. M. Saturday, March 3, 1934. On Sunday, March 4th, about noon, Mr. Murray, a neighbor, returned a borrowed trailer to the Van Hoose garage. The house was closed, and Mr. Murray was unable to arouse anyone, although Mr. Van Hoose's Buick coupe was on the driveway, under the "portico," immediately in front of the west door of the residence. Mr. Murray noticed a hole in the left door of the coupe. On Monday morning Mr. Murray noticed the coupe had not been moved. He again went to the residence and, being unable to arouse anyone, proceeded to Carthage and reported the situation to friends of Mr. Van Hoose; who immediately went to his residence and, the doors of the house being locked (the west door by means of an automatic lock), effected an entrance into the house through a window.
Mr. Van Hoose's body, fully dressed, was lying on the floor of the north (living) room of the residence, with his feet near or extending across the opening of that room into a vestibule, the (west) door of which opened out onto the driveway where his coupe was parked. Bullet wounds were found on the right chest and left shoulder. The chest wound extended through the body. A 32-caliber steel jacket bullet was found in the vestible and another removed from his body. A 38-caliber revolver was found by the side of deceased, fully loaded with leaden bullets with the exception of the hammer chamber which had been discharged. A 38-caliber leaden bullet was found on the floor of the coupe. There was no indication of a struggle in the house. The clothing of deceased was in order, a valuable diamond ring was on one of his fingers, some money and his watch was in his pockets, and nothing of value appeared to have been removed.
Dr. Hogan, the coroner, testified he examined the body between eleven and twelve A. M. of March 5th; that deceased had been dead between thirty-four and thirty-six hours; that the chest wound alone was fatal; and that death probably occurred within a hour and a half after the infliction of the wound.
A neighbor testified to hearing shots in the vicinity of the Van Hoose residence between eight and nine P. M. on March 3rd. R. E. Dugan, operator of a tourist camp known as "Sleepy Hollow," about three miles east of Carthage on No. 66, testified to the defendants meeting at his place on the afternoon of March 3rd, and departing about seven-thirty P. M. in a Ford V8 sedan, going in the direction of Carthage.
Appellant was arrested in Denver, Colorado, on March 13, 1934, and returned to Jasper County for trial. His voluntary signed written statement, witnessed by Prosecuting Attorney Ray E. Watson and Sheriff Oll Rogers, is to the following effect: Appellant met Glenn Harmon and Jerry Wolff in Denver about February 27, 1934. They left for Kansas City, Missouri, and arrived there March 1, 1934. On Saturday, March 3rd, Glenn Harmon, Jerry Wolff and a "fellow whom they called 'Joe'" (William B. Moors), and who was driving a Ford V8 sedan, went to Carthage to see some of Harmon's relatives. They stopped at the "Sleepy Hollow" tourist camp. L. B. Harmon, Glenn's brother, joined them there. Later L. B. Harmon brought Charles Napper to the tourist camp. The statement continues: In a conversation with Mr. Rogers and Mr. Watson, appellant, in answer to an inquiry as to whether they intended to kidnap or rob Mr. Van Hoose stated they intended to rob him. Asked: "What were you going to get out of this; were you after the diamond ring, or money?" appellant stated: "Glenn told us he had plenty, and I was going to get my share." Appellant went with the officers to Mr. Van Hoose's residence and told the officers and showed them where and how the car was driven and stopped on the night of the murder.
A conspiracy existed to rob Mr. Van Hoose, to which appellant was a party and was to receive his share of the spoils. His coconspirators proceeded to effect the object of the conspiracy, armed with revolvers and automatic pistols, and while so engaged, committed...
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State v. Holloway
... ... He comes under the rule that when one joins with ... another in a common design to commit an unlawful act in which ... homicide might be a natural and probable consequence, then ... such person will be responsible for the homicide whether he ... was present or not. State v. Powell, 339 Mo. 80, 95 ... S.W.2d 1186. And see State v. Nasello, 325 Mo. 442, ... 30 S.W.2d ... [195 S.W.2d 665] ... 132; State v. Messino, 325 Mo. 743, 30 S.W.2d 750 ... And more particularly in point we find the general rule ... announced in 15 A.L.R. 456: "Where several persons ... conspire ... ...
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