State v. Pritchett

• Decision Date: 05 June 1931
• Docket Number: 30932
• Parties: The State v. Robert Pritchett, Appellant
• Court: Missouri Supreme Court

39 S.W.2d 794

327 Mo. 1143

The State v. Robert Pritchett, Appellant

No. 30932

Supreme Court of Missouri

June 5, 1931

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Reversed and remanded.

W. L Cole and T. P. Hukriede for appellant.

(1) Where evidence is wholly circumstantial, the circumstances shown must not only tend to establish guilt, but must point to guilt of person charged with crime so clearly as to exclude every reasonable hypothesis of innocence, and the existence of such circumstances must be inconsistent with innocence of accused. State v. Buckley, 274 S.W. 74. (2) The guilt of accused must be shown to the satisfaction of jury beyond a reasonable doubt, it not being enough that there be strong suspicion or even probability of guilt. State v. Buckley, 274 S.W. 74. (3) The circumstances must not be so far removed from the ultimate facts to be established that it becomes necessary for the jury to draw one inference from another. State v. Parks, 13 S.W.2d 1107. (4) Suspicion, however strong, is not sufficient to support a conviction for crime. Where only circumstances are relied on, a conviction cannot be based upon the mere fact that some unfavorable circumstances have not been satisfactorily explained. State v. Bailey, 286 S.W. 422.

Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.

(1) The instruction in the nature of a demurrer requested at the close of the State's case was properly refused. The evidence of the defendant's criminal agency in the homicide is circumstantial. The rule by which the sufficiency of the evidence is measured has been stated by this court State v. Henke, 313 Mo. 627, 285 S.W. 395. (2) A comparison of the adjudicated cases with the facts and circumstances in the instant case confirms the view that the case was properly submitted to the jury, and that there was substantial evidence to support the verdict. State v. Harris, 22 S.W.2d 802; State v. Henke, 285 S.W. 392; State v. Poor, 286 Mo. 648; State v. Taylor, 261 Mo. 228; State v. Concelia, 250 Mo. 411; State v. Barrington, 198 Mo. 113; State v. Hall, 231 S.W. 1004. The evidence of the defendant's guilty agency in the crime is circumstantial, and although not overwhelming it does sufficiently connect the defendant with the killing to make a case for the jury and allow them to weigh the evidence and test the credibility of the witnesses.

OPINION

Henwood, J.

By an information filed in the Circuit Court of Franklin County, the defendant was charged with murder in the first degree. The jury found him guilty "as charged," and assessed his punishment at imprisonment in the penitentiary for life. He was sentenced in accordance with the verdict, and, in due course, appealed.

The following statement of the evidence adduced by the State (allowing for some alterations) is taken from the Attorney-General's brief:

"Eugene Frossard, the victim of the alleged murder, was seventy-one years of age, and lived alone on a farm, near the town of St. Clair, in Franklin County. His house was one quarter of a mile northwest of the home of Dan Arnold, and about a mile and a half from the home of Dighton Lewis. The land between Frossard's and Lewis's was mostly open fields. Frossard's house stood on a hill, and faced the south. Two doors opened into the front of the house, one into each of two front rooms. On the morning of June 27, 1930, Frossard was found dead by Dan Arnold. The door of the east front room was standing open when Arnold arrived, and Frossard's body was on the floor, about one foot from the door. The top of his head had been shot off. His hat was on the floor nearby. The shot had entered the back of his head, and ranged upward. On the ceiling of the room shot marks were scattered over a surface of eight or nine feet, beginning about a foot inside of the door. The room had a height of eight feet. Frossard was an erect man five feet and ten inches tall. No gun was found in the room. The defendant, who was sixty-eight or seventy years of age, lived alone in the neighborhood, first at one place and then at another. He and Frossard had been seen together occasionally, and seemed to be good friends. It was generally known that Frossard carried money on his person, in a pocketbook, pinned to his hip pocket with a safety pin. When his body was found his hip pocket was turned wrong side out, and a safety pin was lying on the floor, about three feet from his body.

"About the first of June, 1930, while Alfred Bailey was watering his horses at a trough in St. Clair, the defendant approached him, and asked him what he was doing. Bailey said he wasn't doing anything. The defendant said, 'How would you like to have about $ 850 or $ 900?' Bailey said, 'If I could find it, it would be all right.' He thought the defendant was 'kidding.' The defendant said, 'If you go with me, it could be easy got.' Bailey said, 'What is it, a holdup?' The defendant said, 'Well, you might call it that.' Bailey said, 'No.' He thought yet the defendant was 'kidding.' The defendant then said, 'If you don't want to go, don't say anything about it.'

"About two weeks before Frossard was killed, the defendant stayed over night at Dan Arnold's home, and the defendant asked Arnold if Frossard had very much money. Arnold told him he thought not. The defendant asked Arnold if Frossard had as much as three or four hundred dollars. Arnold told him he thought not. The defendant then said, 'He is going to get robbed, and whoever robs him had better kill him before he starts in, for that old devil ain't afraid of anything.'

"On the morning of June 26th, the defendant went to the home of Dighton Lewis, who is related to defendant by marriage. Three boys, Burley Lewis, nephew of Dighton, Vivian Lewis, son of Dighton, and Gilbert King, were in a room upstairs. The defendant went upstairs, and talked to Vivian and King. Burley was on the bed, reading. The defendant, Vivian and King then went downstairs, for a drink. The defendant asked them whether or not Frossard still lived over on the old Perry Lewis place, and the boys said he did. The defendant then went upstairs again, where Burley was still reading, and said, 'How does your gun shoot?' Burley said, 'Pretty good.' The defendant said, 'Have you got any shells?' Burley said, 'No.' The defendant then said he guessed he would have to go to the store and get some shells and go hunting. The gun lay on the 'two by fours,' above the bed, in view of the defendant. It was a twelve gauge, single barrel, hammer shotgun. About noon, Mrs. Lewis came home while the defendant was talking to the boys. The defendant stayed at the Lewis home for dinner, and, after dinner, said he was going to Steve Taylor's, about a quarter of a mile away, and would return in a few minutes. He returned at about 3:30, went upstairs, and came down with Burley's gun in his hand, and departed. On that afternoon, defendant went to the home of Steve Taylor, near Mt. Hope, about two o'clock. He said he was going squirrel hunting, and asked Taylor's nine-year-old son, Junior, to go to the store to buy fifteen cents worth of shotgun shells for him. Steve said fifteen cents worth of shells couldn't get many squirrels, and the defendant replied that that would be plenty. The defendant told Mrs. Taylor to instruct the boy as to the size of the shells, and she wrote a note to the storekeeper and gave it to Junior. The defendant then gave Junior a quarter, and told him to buy fifteen cents worth of shotgun shells, and to keep the change. Junior went to W. H. Pierce's store at Mt. Hope, and handed Mrs. Pierce the note, in which the quarter was wrapped. She gave him four twelve gauge shotgun shells, containing smokeless powder and No. 4 shot, for the fifteen cents, and a package of tobacco and some candy, for the dime. Junior returned from the store, and delivered the four shells to the defendant. About four o'clock that afternoon, Frossard, on his way home from the Lonedell store, passed Arnold's place. About thirty minutes later, Arnold and John Dickinson, while putting up hay at Arnold's place, heard the report of a gun, which came from the direction of Frossard's house, a quarter of a mile away. The report sounded like that of a shotgun rather than of a rifle.

"About 5:15 or 5:30 that afternoon, the defendant passed George Jobe, who was in his pasture about three-quarters of a mile southwest of Frossard's house. The defendant was coming from the direction of Frossard's house, and going west. He was in an open field when Jobe first saw him, and, when about forty feet away, Jobe said, 'Hello Bob.' The defendant didn't stop or speak. Jobe then asked if he had been squirrel hunting, and the defendant did not reply. Jobe next asked if he had killed any, and the defendant replied that he had not; that he hadn't found any. A little after six o'clock, the defendant returned to Dighton Lewis's home with the shotgun, and took it upstairs, to the place from which he had taken it. He then asked Mrs. Lewis for a...