State v. Richardson

Decision Date11 March 1937
Docket Number35128
Citation102 S.W.2d 653,340 Mo. 680
PartiesThe State v. James Richardson, Appellant
CourtMissouri Supreme Court

Appeal from Grundy Circuit Court; Hon. Ashley G. Knight Judge.

Affirmed.

Harry J. Fair for appellant.

(1) The court erred in permitting witnesses for the State to testify regarding the commission of other crimes by the defendant. Evidence that the defendant participated in a robbery of the Lafferty Drug Store at Trenton, Missouri, on May 26, 1935 was not admissible to prove him guilty of first degree murder of Elmer Davis at Laredo, Missouri, on May 31, 1935. State v. Wolff, 87 S.W.2d 436; State v Buxton, 22 S.W.2d 635; State v. Whitener, 46 S.W.2d 579; State v. Irvin, 324 Mo. 221; State v. Speyer, 207 Mo. 544; State v. Speyer, 194 Mo. 471; 1 Bishop on Criminal Law, sec. 1124; State v. Barker, 249 S.W. 77; State v. Wagner, 252 S.W. 698; State v. Johnson, 318 Mo. 605; State v. Spray, 174 Mo. 582; State v. Bailey, 190 Mo. 280; State v. Saunders, 232 S.W. 977; State v. Preslar, 290 S.W. 142. (2) The court erred in admitting in evidence the statement of Richardson, Glidewell and Nave. (a) This statement detailed the commission of various robberies and burglaries which had no connection with the crime with which the defendant was charged, among others the robbing of the Seufert Grocery Store in St. Joseph, Missouri, on May 11, 1935. If any part of this statement was admissible that part should have been separated from the parts relating to the offenses not connected with the crime charged. State v. Wolff, 87 S.W.2d 444; State v. Buxton, 22 S.W.2d 635; 16 C. J. 723, sec. 1481. (b) The court did not, either orally or in writing, tell the jury how such evidence was to be considered by them nor its value in establishing the guilt of the defendant in the case at bar. State v. Meininger, 306 Mo. 693; State v. Letz, 294 Mo. 343; State v. Bersch, 276 Mo. 419; State v. Young, 266 Mo. 734; State v. Smith, 250 Mo. 369; State v. Wilson, 223 Mo. 171; State v. Hodges, 144 Mo. 54; State v. Turley, 142 Mo. 411; State v. Bayne, 88 Mo. 611. "The jury should be instructed, however, that evidence of other crimes offered to identify the accused should be considered by the jury only for the purpose of establishing identity of the accused." Underhill's Crim. Evid., sec. 185. (3) The court erred in submitting Instruction S1, to the jury in this, to-wit: The jury were improperly instructed upon the meaning of the word "deliberately" as used in said instruction. The jury were told in this instruction that . . . "deliberately does not mean brooded over, considered, or reflected upon for a week, or a day, or an hour or any appreciable length of time" . . . "and in deliberating there need be no great space of time between the intention to kill and the act of killing, they may be as instantaneous as successive thoughts of the mind." The above does not conform to the requirements of an instruction on deliberation in a first degree murder charge, as laid down in the decisions of the Supreme Court of Missouri; nor does it conform with the requirements of such an instruction as laid down in the leading decisions of the highest courts in foreign jurisdictions. State v. McDaniel, 7 S.W. 634, 94 Mo. 301; State v. Stephens, 10 S.W. 172, 96 Mo. 650; State v. Donnelly, 32 S.W. 1124, 130 Mo. 646; State v. David, 33 S.W. 28, 131 Mo. 380; State v. Ellis, 74 Mo. 220; State v. Grant, 53 S.W. 452, 152 Mo. 70; State v. Evans, 59 S.W. 994, 158 Mo. 605; State v. Barrington, 95 S.W. 235, 198 Mo. 1021, writ of error dismissed, 27 S.Ct. 582, 205 U.S. 483, 51 L.Ed. 890; State v. Spaugh, 98 S.W. 55, 200 Mo. 607; State v. Speyer, 106 S.W. 505, 207 Mo. 552, 14 L. R. A. (N. S.) 836; State v. Fairlamb, 121 Mo. 146; State v. Davis, 126 S.W. 477, 226 Mo. 493; 29 C. J., pp. 1111-1116, secs 90-100; State v. Thomas, 78 Mo. 337; State v. Wieners, 66 Mo. 27; State v. Landgraf, 95 Mo. 97. (4) The court erred in failing to instruct the jury on the subject of manslaughter. (5) The court erred in permitting counsel for the State to depart from the record and from the instructions of the court in his argument to the jury in this cause and in permitting counsel to make inflammatory and prejudicial statements to the jury and permitting him to call the defendant by various epithets and names in the presence of the jury.

Roy McKittrick, Attorney General, and Wm. W. Barnes, Assistant Attorney General, for respondent.

(1) The court did not err in the admission of evidence or exhibits before the jury. (a) Exhibit No. 2, purporting to be a confession of defendant was voluntary and therefore competent. State v. Merrick, 18 S.W.2d 25; State v. Wilkins, 221 Mo. 450; State v. Sinovich, 46 S.W.2d 881. (b) This objection appears for the first time in motion for new trial. State v. McGuire, 39 S.W.2d 526; State v. Witherspoon, 231 Mo. 720. (2) No objection to argument of counsel for the State is preserved in the record. State v. Lucas, 316 Mo. 915; State v. Eason, 18 S.W.2d 76; State v. Hedgpeth, 311 Mo. 460. (a) This alleged error is no ground for complaint because defendant saved no exception. State v. Ellis, 290 Mo. 231; State v. Casteel, 64 S.W.2d 287.

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

OPINION
WESTHUES

Appellant appealed from a conviction of murder in the first degree. His punishment was assessed at death. The information charged the crime to have been committed near Laredo, Grundy County, Missouri, on May 30, 1935. The information charged that James Richardson, Ellis Nave and Gilbert Glidewell had shot and killed one Elmer Davis. Appellant was granted a severance.

The evidence, omitting many of the details not material to the issues here, disclosed the following to have occurred. The deceased was a farmer living near the limits of the town of Laredo. On the evening of May 30, 1935, about nine P. M deceased was notified, by one of his neighbors, that a car had parked in the street near his home and that three men had been in his garage. Deceased dressed and went to his garage where he noticed that the cap was missing from the gas tank of his car. Later deceased and a neighbor by the name of Ragan Pence went to where the defendant's car was parked. Pence had a truck which he parked just ahead of defendant's car. Deceased and Pence then questioned appellant and his two companions. Appellant and his companions informed deceased that they were from Brookfield and had come to Laredo to decorate a grave; that they ran out of gasoline and having no money they attempted to steal gas from deceased's car in order that they might return home. After some further conversation deceased and Pence suggested that they would go to a filling station in Laredo and buy them some gas. This was agreeable to appellant and his companions. Deceased was to ride with the men in the car. Pence thereupon drove his truck up the road a short distance and turned, intending to go to the filling station. At the time he made the turn a car passed him from the direction where he had been talking to appellant. On his return he failed to find the car with the three men and Davis. It was then discovered that Davis had been shot. He was taken to a hospital at Trenton, where he died on the morning of June 2. Appellant and his two companions were arrested the following day by police officers in St. Joseph, Missouri. They were taken to the police station and questioned. All admitted that they had been at Laredo the night before and also admitted the shooting of Davis. The men were then taken to the Trenton hospital where deceased identified each one and accused them of having shot him. Deceased pointed out Glidewell as the driver of the car; appellant, Richardson, as having occupied the front seat beside the driver and Nave as having been in the back seat. This was admitted by the men to have been true. They were then asked who had shot Davis. Nave and appellant each admitted that he had shot once, but Glidewell denied that he shot. Davis then made the assertion that someone had lied as he had been shot three times. Thereupon appellant volunteered that he was terribly excited and may have shot twice. In no statement made by appellant, in the police station in St. Joseph, in the hospital in the presence of Davis, or later in a signed confession, did he ever hint at any fact that would suggest he shot Davis in self-defense. The only reason he gave was that he was afraid Davis and Pence were going to turn them over to the officers and that he was excited. We may pause to state that the three men had good reason to fear the officers of the law, as it later developed that they had been on a crime committing spree and had perpetrated a number of robberies, and also had burglarized a number of homes and stores all within the month of May, 1935.

A witness testified without objection as follows: "Mr. Davis told me that he was on the running board talking to him, standing on the running board, talking to them when Mr. Pence left and that then the driver of the car attempted to start the car and he, Davis, reached over to pull out the key and something hit him in the neck.

"Q. What, if anything, did he say with reference to what it was hit him in the neck? A. Well he was shot in the neck, he showed me the hole."

This evidence coincides with that of appellant, except that he testified that at the time Davis reached in the car he thought Davis had a gun and was going to shoot him. Note his testimony:

"A. Well we was parked west of Laredo, Mr. Pence and Mr. Davis came up in a car; stopped in the front of our car, Mr. Davis came back to our car and says have you been trying to steal gasoline, we said we tried but we couldn't get any, he says -- he asked us our names, where we lived, who our folks was, he asked us what we...

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7 cases
  • State v. Thomas
    • United States
    • Missouri Supreme Court
    • 5 Septiembre 1944
    ... ... to show that it was involuntary or obtained through the ... exercise of improper influences. In the foregoing ... circumstances there was no error in admitting it in evidence ... State v. Pillow (Mo., Div. 2), 169 S.W.2d 414, ... 417(4-5); State v. Richardson, 340 Mo. 680, 686(1), ... 102 S.W.2d 653, 655 (2); and many cases cited in 9 West's ... Mo. Dig. "Criminal Law," sec. 519(3); and see, 20 ... Am. Jur., sec. 561, p. 475; 16 C.J., sec. 1473, p. 719, sec ... 1477, p. 721; 22 C.J.S., sec. 817 (2, 3), pp. 1432-4 ...          The ... ...
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    • Missouri Supreme Court
    • 25 Marzo 1943
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    • Missouri Supreme Court
    • 22 Noviembre 1939
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    • United States
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    • 3 Abril 1944
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