State v. Ring

• Decision Date: 11 June 1940
• Docket Number: 36776
• Citation: 141 S.W.2d 57,346 Mo. 290
• Parties: The State v. Amuel Ring, Appellant
• Court: Missouri Supreme Court

141 S.W.2d 57

346 Mo. 290

The State v. Amuel Ring, Appellant

No. 36776

Supreme Court of Missouri

June 11, 1940

Appeal from Pemiscot Circuit Court; Hon. Robert I. Cope Judge.

Affirmed.

Ward & Reeves for appellant.

The court erred in refusing to give to the jury defendant's Instruction B, which was offered at the close of all the evidence in the whole case and which instruction directed the jury to find the defendant not guilty, there being insufficient evidence upon which a conviction would be authorized. The court also erred in refusing to give to the jury Instruction C, which told the jury that the evidence was wholly insufficient to establish the fact that N. C. Teroy came to his death by reason of injuries inflicted upon him by defendant, Amuel Ring. These instructions should have been given to the jury for the reason that the evidence was wholly insufficient to establish the corpus delicti, that is, there was no substantial proof that N. C. Teroy died from a wound unlawfully inflicted by a club at the hands of Robert Privett. By an instruction the court told the jury that the State sought to convict the defendant upon circumstantial evidence and the circumstances established were as consistent with the theory that Teroy was fatally injured by Luther Gillam's automobile, as with the theory that he was fatally injured by blows administered by Privett. The evidence at most merely produced a suspicion or conjecture that Teroy died as a result of an unlawful assault at the hands of Privett and it did not exclude every reasonable hypothesis of his death being caused by some other means. State v. Bass, 251, Mo. 107; State v Singleton, 294 Mo. 346; State v. Francis, 199 Mo. 671; State v. Joy, 285 S.W. 489; State v. Frisby, 204 S.W. 3. There was no direct evidence that Privett struck Teroy and inflicted fatal injuries on him with a club. There was no evidence whatever that appellant Ring participated in such alleged assault by either act, word or sign. Ring was a mere bystander and took no part whatever in the alleged fatal assault. There was no evidence that Ring had discussed or planned such an assault with any of the other defendants. There was no evidence that Ring had any knowledge that Privett intended to commit an assault upon Teroy. It, therefore, follows that there was no sufficient evidence upon which the jury could legally convict the defendant Ring as an aider and abettor. State v. Porter, 276 Mo. 387; State v. Odbur, 317 Mo. 372; State v. Bell, 316 Mo. 185; State v. Pippin, 327 Mo. 299; State v. Larkin, 250 Mo. 218; State v. May, 142 Mo. 135.

Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance and apprises the defendant of the crime charged. Secs. 3553, 3381, 3982, 4446, R. S. 1929; State v. Frazier, 98 S.W.2d 711; State v. Privett, 130 S.W.2d 579; State v. Peters, 123 S.W.2d 34. (2) The verdict is in proper form and is responsive to the information. Sec. 3997, R. S. 1929; State v. Morgan, 56 S.W.2d 387. (3) The court committed no error in overruling defendant's Instruction A, at the close of the State's case and Instruction B, at the close of the whole case. State v. Hancock, 104 S.W.2d 244; State v. Wall, 96 S.W.2d 39, 339 Mo. 11; State v. Moore, 95 S.W.2d 1171; State v. Meyers, 44 S.W.2d 72; State v. Mann, 217 S.W. 69; State v. Starling, 207 S.W. 768; State v. Peters, 123 S.W.2d 36. (4) The court properly refused to give Instruction C, offered by defendant. State v. Jones, 225 S.W. 898; State v. Arenz, 100 S.W.2d 267. (5) There is no conspiracy charged in the information and no evidence was introduced of any conspiracy, therefore, no error was committed by the court in refusing to give Instruction D. State v. McCann, 47 S.W. 101; State v. Busch, 119 S.W.2d 268; State v. Farmer, 111 S.W.2d 79; State v. Porter, 199 S.W. 160. (6) This assignment merely goes to the sufficiency of the evidence. State v. Privett, 130 S.W.2d 579; State v. Mitchell, 86 S.W.2d 186; State v. Cohen, 100 S.W.2d 547. (7) Instructions 4 and 5 given by the court are not erroneous or prejudicial to the defendant for the reason the defendant was convicted of manslaughter. State v. Gibbs, 186 S.W. 987; State v. Finkelstein, 213 S.W. 468; State v. Bresse, 33 S.W.2d 922; State v, Murphy, 111 S.W.2d 137; State v. Sandal, 315 Mo. 64. (8) The court properly overruled the defendant's objection to the qualification of juror Murray Zarecor for the reason prejudice against a certain crime constitutes no cause of challenge. State v. Jones, 85 Mo. 49; State v. Smith, 228 S.W. 1061. (9) The court committed no error in admitting evidence of a statment made by Robert Privett when there was other evidence of the same kind introduced without objection by the defendant. State v. Johnson, 252 S.W. 265; State v. Gulley, 199 S.W. 125; State v. Mikel, 223 S.W. 951; State v. Thompson, 338 Mo. 902; State v. Reagan, 108 S.W.2d 397; State v. Adams, 19 S.W.2d 675. (10) The court committed no error in refusing the defendant to prove by witness C. B. Bidewell that the men in this automobile had reported that they had killed a man on the highway. State v. Cutter, 1 S.W.2d 96, 318 Mo. 687. (11) The court committed no reversible error in refusing to permit the defendant to offer from the transcript of the testimony at the preliminary trial testimony of Luther Gillam with reference to certain skid marks on the highway where the deceased was hit. (12) The court committed no error in refusing to permit Albert Wood to testify as to the good reputation of the defendant in his community. State v. Miles, 161 S.W. 766, 253 Mo. 437; State v. Rutherford, 53 S.W. 417, 152 Mo. 133. (13) The court committed no error in refusing to rebuke the prosecuting attorney in his closing argument for the reason that if the prosecuting attorney did make such an argument, the defendant failed to properly save same in the record, and therefore there is nothing for review by this court. State v. Adams, 318 Mo. 721, 300 S.W. 742.

OPINION

Cooley, C.

Defendant, Ring, and three others, Robert Privett, Cleve Crow and Arnold Tucker, were jointly charged with murder in the first degree for the killing of N. C. Teroy. Severances were granted and in this case Ring was tried alone. Privett had been tried and convicted previously. That case is reported in State v. Privett, 344 Mo. 1020, 130 S.W.2d 575, which opinion may be read in connection with the opinion in the instant case. In the case now before us the defendant, Ring, was convicted of manslaughter, was sentenced to seven years' imprisonment in the penitentiary and has appealed. It appears, and seems to be conceded, that the fatal assault (if any), was committed by Privett, and that defendant, Ring, is guilty, if at all, as an accessory. It is settled that a person aiding and abetting a homicide may be charged and convicted as a principal. The information is sufficient. [State v. Privett, supra.] Defendant here contends, first, that the evidence does not show that Teroy's death resulted from wounds inflicted by Privett, and, second, that, in any event, he did not have criminal connection with the offense and his demurrer to the evidence should have been sustained -- a contention that requires a detailed statement of the facts. In ruling a demurrer to the evidence the facts favorable to the State's case must be taken as true, together with such favorable inferences as may be reasonably drawn from facts proved, and countervailing evidence must be rejected. Keeping in mind this well established rule we state the facts which the State's evidence tended to prove: --

Shortly after midnight of May 22, 1938 -- perhaps about 1:30 or 2:00 A. M. of the 23rd -- a considerable number of people were congregated at a place called Skinner's Night Club, located on the south side of Highway No. 84, an east and west paved highway, about seven miles west of Hayti, Missouri. Defendant, with others, was there. A fist fight started between Cleve Crow and Teroy. The cause of that fight is obscure -- and immaterial. Crow and Teroy were separated. When they were separated Crow had an open knife in his hand, which, however, he did not use, or, apparently, try to use, on deceased. By this time a number of people, including defendant, had congregated about the combatants. Defendant had a beer bottle in his hand, which he was holding by the neck. He said, "Stay in there Cleve, (Crow) we are with you," -- or as one witness said -- "Stay with him, Cleve, I am with you like I always was." Witnesses gave different versions as to the exact words, used, but to the same general effect. One witness testified that defendant said, "Stay in there Cleve," -- that he (defendant) would help him. At that time defendant was holding the beer bottle by the neck. Deceased "pushed" him away. Defendant "ran around" and "started" to hit deceased with the beer bottle. About that time Privett said, (to Teroy), "You can't do that -- get him boys," and deceased turned and ran away, pursued by defendant, Privett, Crow and Tucker, who were "running" after him. Others in the crowd followed, but not so immediately. The State's evidence indicates that the four above mentioned followed in hot pursuit of Teroy.

Back of the clubhouse there was a small building, referred to as a cabin, and about eight feet back of that -- south, as we understand the record -- there was a barbed wire fence. South of the fence there was a small clearing and beyond that a woods pasture. East of the cabin there was a north and south barbed wire fence. The east and west fence back of the cabin was forty or fifty yards from the clubhouse. The cabin was not illuminated. There was some "reflection" from lights in the clubhouse...