State v. Richmond

• Decision Date: 18 December 1928
• Docket Number: No. 28781.,28781.
• Citation: 12 S.W.2d 34
• Parties: THE STATE v. BOB RICHMOND, Appellant.
• Court: Missouri Supreme Court

12 S.W.2d 34

THE STATE v. BOB RICHMOND, Appellant.

No. 28781.

Supreme Court of Missouri, Division Two.

December 18, 1928.

Appeal from Butler Circuit Court. — Hon. Charles L. Ferguson, Judge.

AFFIRMED.

McCluskey & Hollis for appellant.

(1) The court erred in giving an instruction for second degree murder. There was no evidence to support such an instruction. There was complete absence of evidence to sustain malice aforethought. Malice is an essential element in murder in either degree. State v. Stoeckli, 71 Mo. 559, 64 Mo. 319; State v. Conley, 255 Mo. 185. Malice in its legal sense means a wrongful act done intentionally without just cause or excuse. (2) The court erred in permitting the prosecuting attorney in his opening argument to make statements as facts which he could and would prove by competent evidence. The statement was made over the objection of the appellant and further upon the promise to the court that the statements could be sustained with admissible evidence. The statement was continued and matter came before the jury which was highly prejudicial and damaging to the appellant's cause. The statements directly accused the appellant in attempting to make a jail delivery. The State's attorney must not in his opening statement to the jury refer to evidence or supposed facts which he cannot introduce as competent and admissible evidence. State v. Levy, 170 S.W. 1114, 262 Mo. 181. (3) When the irrelevancy and incompetency of the evidence is apparent, it is error for the court not to exclude it, though no specific objection is made thereto. State v. O'Conner, 65 Mo. 374. (4) The vindictive thrusts at the defendant by the State's Attorney in his argument were such as: "Defendant is a dangerous character; he is dishonest; he lives with a woman not his wife; he lives in a den of thieves: O! how I would like to see old Bob Richmond swinging to the end of a rope; he took that old man and woman's only support; his only purpose at the boat was to steal money from Herschel Walker and kill him." These statements were made by the State's attorney as facts shown by the evidence. Not a one of the statements is sustained in part or wholly by the evidence. When the prosecuting attorney in his argument to the jury gets outside of the record, a verdict of conviction will be set aside. State v. Spivey, 191 Mo. 87; State v. Guerringer, 265 Mo. 408; State v. Clapper, 203 Mo. 549; State v. James, 216 Mo. 394. (5) The attorney in his statements termed the witnesses thieves, poker players and bootleggers. These statements were made in a general nature and no names were called. Such statements as this, "How can one believe a person who is a bootlegger, a poker player, a thief, one who lives in the hell hole of Butler County?" It is improper for the prosecuting attorney to apply epithets to the accused or the accused's witnesses. State v. Rasco, 239 Mo. 535. (6) The time taken by the jury in rendering the verdict does not show that they gave the instructions given to them by the court any consideration or sufficient consideration as to enable them to have a full understanding of the law in the case. The shortness of the time used by the jury shows that the defendant did not have his rights considered under the instructions given.

Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.

(1) The most of the assignments are insufficient and under the rulings of this court will not be considered. State v. Standifer, 289 S.W. 858. (a) The motion for new trial does not complain of the instructions given. Therefore, it is not necessary for the court to review them. Sec. 4079, Laws 1925, p. 198. (b) However, the instructions given by the court are not subject to criticism. Instruction number two, on murder in the second degree, is in an approved form. State v. Allister, 295 S.W. 755; State v. Bauerle, 145 Mo. 18. (2) Notwithstanding the appellant did not include in his motion for new trial any objection at all to the instructions given, his first point is that the court erred in giving an instruction on second degree murder because there was no evidence to support it, in that there was no evidence of malice. This was a matter for the jury to determine from all the facts in evidence. The authority cited by the appellant decides the point against him. State v. Lane, 64 Mo. 323. The record shows that there was substantial evidence to the effect that the defendant had a difficulty with deceased over a card game; that a scuffle ensued; that there were shots from a revolver; that the deceased received a mortal wound; that the defendant ran away. State v. Concelia, 250 Mo. 424. (3) The answer to all the remarks of the prosecuting attorney most complained about do not appear in the record. It will be noted by referring to the bill of exceptions, that the only thing set out concerning the argument of the prosecuting attorney is a reference to the defendant as a moonshiner and in reference to the witness Dan Hooper as a moonshiner. It was proven that the defendant had been convicted on a charge of selling liquor. Therefore, the statement that he was a moonshiner was justified by the evidence. The statement that a witness was a moonshiner could not be prejudicial to the defendant. And moreover the appellant did not include either one of these complaints in his motion for new trial; therefore, they will not be considered by this court. The whole complaint against the argument of the prosecuting attorney appears only in the motion for new trial and nowhere else in the record. Therefore, this complaint is not properly before this court. State v. Lloyd, 217 S.W. 27; State v. Ellis, 290 Mo. 231. (4) The appellant makes the unusual complaint that the jury was out only one and one-half hours. The answer to the foregoing is that the statute does not require the jury to deliberate for any specific length of time. On the other hand, the statute provides that "when the argument is concluded, the jury may either decide in court or retire for deliberation." Sec. 4027, R.S. 1919. (5) The appellant further attacks the verdict on the ground that the jurors, being tired, instead of deliberating, adopted a plan of arriving at a verdict by writing numbers on slips of paper. He does not go into details on this point in his motion for new trial. It is true that the finding of a verdict by a jury by means of drawing numbers is such misconduct as will invalidate it. State v. Branstetter, 65 Mo. 149. But there must be proof of such misconduct. State v. Long, 201 Mo. 677. The affidavit submitted is not sufficient proof. State v. Linn, 223 Mo. 110.

WALKER, J.

The appellant was charged by information in the Circuit Court of Butler County with murder in the first degree in having shot and killed one Herschel Walker. Upon a trial to a jury he was convicted of murder in the second degree and his punishment assessed at fifteen years' imprisonment in the penitentiary. From this judgment he appeals.

The appellant, the deceased and several others were living at the time of the homicide in house-boats on Black River. On the night of September 27, 1927, several of these persons, including the appellant and the deceased, were playing cards for money in a houseboat belonging to a man named Peoples. Finally all of the players, except the appellant and the deceased, dropped out of the game. The appellant charged the deceased with cheating and grabbed the money on the table. A scuffle ensued and the deceased, who was a much larger and stronger man than the appellant, caught the latter by the head and shoulder and pushed him to the edge of the boat, which had no railing around the deck. Just as the appellant reached the edge of the boat two shots were fired, and the deceased fell backward and expired from the effect of the shots. The appellant fled, saying to someone in his flight that he was in trouble and was going away. He was subsequently arrested in an adjoining county. No weapons were found on the deceased and no witnesses testified to having seen a weapon in the hands of the appellant. Two or three witnesses testified that they saw the flash when one of the shots was fired and the shirt of one of the witnesses who was standing close to the appellant at the time was set on fire by the flash. The appellant denied that he shot the deceased. He testified that he and the deceased had a little dispute during the game, and that the deceased rose to his feet, hit the appellant and staggered him back towards the door; that he did not shoot the deceased; that the only gun he saw was in the hand of the deceased after they reached the door; that as the deceased drew the weapon appellant struck it and it fired; that deceased drew it again and the appellant again struck and it went into the river.

Appellant complains of the giving of an instruction for murder in the second degree; of improper statements made by the prosecuting attorney; of the short time occupied by the jury in reaching a verdict and that the verdict was improperly reached by drawing numbers.

I. In the motion for a new trial it is contended that the giving of an instruction for murder in the second Instructions. degree was error. The language of the motion, so far as concerns the instruction and the admission or refusal to admit testimony, is as follows:

"Because the court erred in refusing to give the instructions offered by the defendant, number of instructions are marked, REFUSED.

"Because the court erred in admitting incompetent evidence on the part of the State over the objections of the defendant and exceptions.

"Because the court erred in refusing to admit competent and material testimony on the part of the defendant."

Section 4079, Revised Statutes 1919, as amended Laws 1925, page 198, provides, among other things, that "the motion for a new trial shall be in writing and must set forth in detail and with particularity in separate numbered paragraphs the...