State v. Privett

• Decision Date: 10 June 1941
• Docket Number: 37572
• Citation: 152 S.W.2d 73,347 Mo. 1144
• Parties: The State v. Robert Privett, Appellant
• Court: Missouri Supreme Court

152 S.W.2d 73

347 Mo. 1144

The State v. Robert Privett, Appellant

No. 37572

Supreme Court of Missouri

June 10, 1941

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Affirmed.

Corbett & Peal for appellant.

(1) It was necessary in the information to charge, not only the felonious assault, but also a felonious wounding, and that the wounds were mortal wounds which caused the death of N. C. Teroy. State v. Sides, 64 Mo. 383; State v. Hagan, 164 Mo. 654; State v. Robertson, 178 Mo. 496; Kelly's Criminal Law (3 Ed.), sec. 484, p. 430. (2) It is necessary to prove that the deceased actually died of an injury inflicted upon him by the defendant, and where the evidence shows that deceased's death was not caused by the wounds inflicted by defendant, but from some other cause, the defendant cannot be convicted of murder. Kelly's Criminal Law (3 Ed.), sec. 473, p. 416. (3) It is not sufficient for the State to prove the death of deceased and that the deceased came to his death by violent means, but it is incumbent upon the State to prove the criminal agency of the defendant in connection therewith beyond a reasonable doubt. State v. Bass, 251 Mo. 126; State v Crabtree, 170 Mo. 650; State v. Dickson, 78 Mo. 447; Wharton on Homicide (3 Ed.), sec. 587; State v. Joy, 285 S.W. 489; State v. Francis, 199 Mo. 671; State v. Gordon, 199 Mo. 561; State v. Nesenhener, 164 Mo. 461. (4) Under the defendant's plea of not guilty, the State was required to prove at the trial every fact and circumstance stated in the information, which is material and necessary, which constitute the offense charged. Kelly's Criminal Law (3 Ed.), p. 197; State v. Hyde, 234 Mo. 200; Underhill's Criminal Evidence (4 Ed.), sec. 575, p. 1143; State v. Wingo, 66 Mo. 181. (5) The admission or confession of one jointly indicted with a defendant on trial for crime, made after the commission of the alleged offense, and not in the presence of defendant, cannot be received in evidence against defendant on trial. State v. Brennan, 164 Mo. 487. (6) A statement or confession of a coindictee not preceded by evidence indicating a conspiracy is inadmissible in evidence as being purely hearsay. State v. Condit, 307 Mo. 393. (7) There having been no previous evidence indicating a conspiracy, a statement or confession made by defendant's coindictee, made out of his presence, is pure hearsay, and not admissible in evidence on any theory against the defendant. State v. Condit, 307 Mo. 393; State v. Melrose, 98 Mo. 594; State v. Hilderbrand, 105 Mo. 318; State v. McGraw, 87 Mo. 161; State v. Minton, 116 Mo. 605; State v. Brennon, 164 Mo. 487. (8) The declarations of a conspirator or accomplice are receivable against his fellow when they are either in themselves acts or accompany and explain acts done in pursuance of the concerted criminal purpose, if made during the pendency of a common criminal enterprise. Such declarations, however, if made at a subsequent period, and merely narrative of past occurrences are inadmissible. State v. Melrose, 98 Mo. 594. (9) When the common enterprise is at an end, either by accomplishment or abandonment, no one of the conspirators is permitted, by any subsequent act or declaration of his own, to affect the others. State v. Ross, 29 Mo. 32; State v. Duncan, 64 Mo. 262; State v. McGraw, 87 Mo. 161. (10) It is error to give instructions when there is no evidence upon which to predicate them. State v. Bartlett, 170 Mo. 658; State v. Crabtree, 170 Mo. 642; State v. Eslick, 216 S.W. 874; State v. Sayers, 58 Mo. 585; State v. Elsy, 201 Mo. 561. (11) A defendant cannot be convicted in a criminal case upon mere conjecture or suspicion to connect the defendant with the crime, and although the corpus delicti is proven, it must be further shown that the defendant committed a crime, and, as in this case, that defendant gave to the deceased one or more mortal wounds which caused his death, and a verdict based upon suspicion or conjecture cannot stand. State v. Crabtree, 170 Mo. 642.

Roy McKittrick, Attorney General, and Olliver W. Nolen, Assistant Attorney General, for respondent.

(1) The information has been approved in a prior appeal by this court. Sec. 4376, R. S. 1939; State v. Privett, 130 S.W.2d 575, 344 Mo. 1020; State v. Frazier, 98 S.W.2d 707, 339 Mo. 966; State v. Peters, 123 S.W.2d 34; State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168. (2) The verdict is in proper form and is responsive to the issues. State v. Morgan, 56 S.W.2d 385; Secs. 4376, 4377, 4378, R. S. 1939; State v. Hyatt, 71 S.W.2d 711; State v. Huddleston, 123 S.W.2d 183. (3) The assignments of error that the verdict of the jury is against the evidence and against the weight of the evidence and the law, as alleged in appellant's motion for new trial, amount in substance to an allegation that the State failed to make a case for the jury. (4) It was not competent evidence for appellant to attempt to prove by Dr. Shirey that the witnesses Gillam and Strickland told him that Gillam had run his automobile into and struck the deceased on Highway 84. State v. Dalton, 23 S.W.2d 1; State v. Kaplan, 16 S.W.2d 35. (5) All of the instructions given by the court on the part of the State were proper and there was evidence on which to base the same. State v. Hart, 56 S.W. 592, 331 Mo. 650; State v. Caviness, 33 S.W.2d 940, 326 Mo. 992; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132; State v. Mansker, 339 Mo. 913, 98 S.W.2d 666; State v. Murphy, 111 S.W.2d 132; State v. Blankenship, 50 S.W.2d 132, 330 Mo. 792; State v. Richardson, 36 S.W.2d 944. (6) It was not error to give Instruction 10 on the credibility of the witnesses. (7) The court did not err in overruling the demurrer because of the insufficiency of the evidence. The allegations of appellant in Points 2 and 8 are to the same effect. State v. Privett, 130 S.W.2d 575, 344 Mo. 1020; State v. Crow, 141 S.W.2d 66; State v. Ring, 141 S.W.2d 57; State v. Frazier, 98 S.W.2d 707, 339 Mo. 966; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066. (8) It was not error for the witnesses to testify that Crow and Arnold Tucker made the statement "Let's go look him up and finish him up," and to the further statement alleged to have been made by Crow the next morning, "God, I was fixing to leave the country." State v. Peters, 123 S.W.2d 34; State v. McGee, 106 S.W.2d 478, 341 Mo. 148; State v. Bunch, 62 S.W.2d 439, 333 Mo. 20. (9) It was not error to prove that the appellant was a bouncer at Skinner's Night Club and that said club was operating in violation of an injunction. State v. Pivett, 130 S.W. (2) 575, 344 Mo. 1020; State v. Mitchell, 96 S.W.2d 341, 339 Mo. 228. (10) Allegations of bias, prejudice and passion of the jury in motion for new trial do not prove themselves. State v. Lay, 61 S.W.2d 738; State v. Short, 87 S.W.2d 1031, 337 Mo. 1061; State v. Hohensee, 62 S.W.2d 436, 333 Mo. 161.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Robert Privett appeals from a judgment imposing a sentence of fifteen years' imprisonment for second degree murder. See State v. Privett, 344 Mo. 1020, 130 S.W.2d 575, for opinion on first appeal. He, Cleve Crow Amiel Ring and Arnold Tucker were charged jointly with the murder of N. C. Teroy by beating him on the head at Skinner's night club on Highway 84, in Pemiscot County, Missouri. [Consult State v. Ring (Banc), 346 Mo. 290, 141 S.W.2d 57; State v. Crow (Banc), 346 Mo. 306, 141 S.W.2d 66.] The points presented may be disposed of by ruling on the sufficiency of the evidence and the competency of certain evidence.

Appellant contends that Teroy's death was not the result of the assault at Skinner's but the result of Teroy being struck by Luther Gillam's automobile on Highway 84 a few hours later. He presents the issue on the evidence most favorable to him. The State, having prevailed nisi, is entitled to have the evidence favorable to the prosecution considered on review. Appellant's brief states the evidence was substantially the same as set out in the opinion handed down on the first appeal with the exception that the testimony of Claud Parnell was admitted at this trial. The first judgment, imposing a life sentence, was reversed and the cause remanded because this testimony had been excluded. We think the testimony for the State was more substantial on the second trial. In view of appellant's admission, the facts here stated are to be supplemented by a consideration of the facts found in the opinion on the first appeal.

The trouble started with Teroy and Crow engaging in a fight at Skinner's night club about midnight of May 22, 1938. Teroy died the next day. They were separated. Crow struck at Teroy. Teroy evaded the blow and chided Crow for missing. Someone warned that Crow had a knife. Teroy asked that both be searched, stating he would "fight him fair." Ring encouraged Crow and made a demonstration against Teroy, who shoved him back. Appellant, who served as "bouncer" at the night club, interfered; picked up a seasoned Elm limb (3 to 4 feet long and as thick as a man's wrist, with stubs of cut-off branches projecting therefrom); called to the others to aid (saying: "Let's get him gang. Let's kill the s -- of a b --"); and chased Teroy back of a cabin. Teroy ran into a wire fence in the rear of the cabin. There is ample testimony from eye witnesses warranting a finding that appellant struck Teroy several times with the club, which was split when appellant returned. In fact, appellant is quoted by witnesses as having said after the affray that he had hit Teroy three or four times, knocked him out of the fence, knocked him down three times; that he broke the club across Teroy's head; that they would not be bothered with Teroy anymore, et cetera. Teroy broke through or managed to get over the fence...