State v. Robinett

• Decision Date: 11 January 1926
• Docket Number: No. 26204.,26204.
• Citation: 279 S.W. 696
• Parties: STATE v. ROBINETT.
• Court: Missouri Supreme Court

279 S.W. 696

STATE v. ROBINETT.

No. 26204.

Supreme Court of Missouri, Division No. 2.

January 11, 1926.

Appeal from Circuit Court, Douglas County; Fred Stewart, Judge.

Pat Robinett was convicted of murder in the second degree, and he appeals. Affirmed.

Page & Barrett, of Springfield, for appellant.

Robert W. Otto, Atty. Gen., and Wm. L. Vandeventer, Asst. Atty. Gen., for the State.

WHITE, J.

Defendant, November 17, 1924, in the circuit court of Wright county, was found guilty of murder in the second degree. The jury, in their verdict, said they could not agree on the punishment. After motion for new trial and in arrest had been filed and overruled, the court, November 20, 1924, pronounced sentence, fixing the defendant's punishment at imprisonment in the penitentiary for a term of 15 years. He thereupon appealed to this court.

The defendant was charged, as accessory before the fact, with the murder of one John Smith, November 26, 1923. Evidence for the state shows that one Marion Gregory, at the time charged in the information, was engaged in the illegal manufacture of whisky in Wright county. Charley Robinett, a son of the defendant, then 16 years of age, was assisting Gregory in the manufacture. The defendant's connection with the manufacture is shown by circumstances to be noted below. On the date mentioned, one George Day passed that way, and saw the manufacturing apparatus in operation. This incident caused an alarm and Charley was sent posthaste for his father, the defendant, to come and move the telltale mash. The defendant offered his team and wagon, but Gregory was unable to use it because he was crippled. The defendant then, with his son, Charley, and a nephew, Chester Stigall, a youth 18 years of age, took his wagon, drawn by two mules, drove to the Gregory place, loaded three barrels of mash, intending to move it about a mile and a half to a place called the Rippee house, for the purpose of concealing it and later running it off.

Defendant assumed control of this operation and directed everything that was done. He first sent to the Rippee house for a Winchester, which he put into the hands of his son, Charley. Chester Stigall was armed with a double-barreled shotgun. The defendant himself had a single-barrel shotgun. The road from the Gregory place to the Rippee house ran by the Coon Creek Church, near which two men known to the defendant were at work. To avoid the appearance in public of his operations, the defendant ordered the boys to cut a wire fence, so that he could drive through a field to the Rippee house. After cutting the wire, the boys were ordered to go up the road, keep their eyes skinned, and let nobody come up. They had gone up the road about 100 yards, when they heard some one coming. Charley immediately began to fire his 38 Winchester rifle. He fired 6 or 7 shots. Stigall also let off his shotgun. The boys then returned to the wagon and defendant proceeded with his load of mash. He became alarmed, and, instead of stopping at the Rippee house, he proceeded about a half a mile further, and hid two barrels of mash in a brush pile. In the meantime the body of John Smith was found in the road, with a bullet hole through his head. Circumstances were such as to make it practically certain that he was killed by the shot from Charley Robinett's rifle. The other barrel of mash was taken into the woods and poured out. The defendant then continued to Gregory's house, where he "put out" the worm barrels. The guns were concealed, and the shoes taken off of one of the mules.

As the defendant with his mash passed the house of Marion Robertson, he told Robertson that he had "had hell" that night. One Coday Chandler was also present. The defendant also said to one of them, "I am a friend to you, and you are a friend to me, and you know nothing." All this occurred after the defendant learned that a man had been killed.

The only evidence of any consequence offered by the defendant was the testimony of Charley Robinett, who swore that his father had nothing to do with the manufacture of the liquor, and that he, when firing up the road, shot into the air without intending to hit anybody. He intended only to scare off anybody who was coming; in other respects, his evidence is not inconsistent with that offered by the state. It seems to be conceded that one of Charley's shots struck and killed Smith. The prosecutor showed that he attempted to procure the attendance of Gregory, as a witness, and failed.

I. Appellant first makes the point that the evidence wholly failed to connect the defendant with the killing of John Smith, and the demurrer to the evidence, on that account, should have been sustained. The case was submitted to the jury on the theory of a conspiracy to engage in the commission of a felony, and that in the progress of that crime Smith was incidentally killed, and, though that was not the object of the conspiracy, the homicide was murder. It was also submitted on the theory that the defendant aided and abetted Charley in the perpetration of a homicide. Under the instructions, the jury could have found the defendant guilty on either theory. Therefore, unless there was evidence upon which the case might be submitted on both theories, the judgment would have to be reversed and remanded.

II. The evidence tended to show that the defendant and Marion Gregory were working together for a common purpose. It is important, therefore, to determine whether they were engaged in the commission of a felony. An incidental homicide by one, who, at the time, is engaged in the commission or attempted commission of some other felony, is murder. 29 C. J. p. 1097; Wharton on Homicide, p. 174. Under Acts of 1923, § 2, p. 236, it is made a felony to use any brewing equipment or utensils in the process of manufacturing intoxicating liquor for sale or transportation. The statute nowhere makes it an offense to transport mash. The only transportation condemned is the transportation of liquor. Section 20 makes it a felony to manufacture hootch, moonshine, or corn whisky. The evidence does not show that the mash which the defendant moved contained any corn or corn meal; therefore there was no evidence that the defendant was manufacturing corn whisky. The evidence does show that Gregory was engaged in manufacturing "moonshine" whisky, whether of corn or some other substance. It is not disputed that the mash which he used was in the process of being illegally manufactured by distillation into intoxicating liquor and that the utensils were being used for that purpose. The only break in the evidence, claimed by the defendant, was the alleged failure to connect the defendant with that manufacture. The evidence as to that is only circumstantial. His minor son worked with Gregory in the manufacture, and undoubtedly with the defendant's knowledge. On hearing that the plant was discovered, he asked for no explanation, but immediately manifested great concern about hiding the evidence. He aced promptly and as efficiently as possible. Gregory, in fact played a very subordinate part in the attempted disposal of the material and equipment which would betray their occupation. Defendant attended to the loading and the concealment of the mash and to the procuring of the weapons which he and the boys carried to protect his operations. He told Stigall, his nephew, that he was going to remove the mash to the old Rippee house, "and run it off in about 2 or 3 days." The expression "run it off" is not explained, but from the context we assume that he meant he was going to extract the liquid from the mash; in other words, perform a part of the process of manufacture. The circumstances were entirely sufficient to authorize an inference that the defendant was engaged in the manufacture of moonshine, as defined in section 20.

But a further question arises: Was the defendant engaged in the "manufacture" of the liquor while he was moving the mash at the time Smith was killed?

The common-law rule is that, after the commission of a felony, if the criminal, in attempting to make way with his plunder, incidentally commits a homicide, he is guilty of murder. Wharton on Homicide, p. 186.

In the illegal manufacture of intoxicating liquor, concealment of the operation is an important and necessary element in the successful conduct of the business. It could not be manufactured openly. In this case it was necessary to move the material from where it was likely to be seized to another point where it could be "run off." The defendant could not complete the manufacture at the Gregory place after the discovery; he had to move to another place in order to finish the work, and the moving was as necessary in the production of the finished product, moonshine, as any other part of the manufacture. Such shifts were incidental to the successful prosecution of the enterprise. So we conclude that at the time the defendant was moving the mash he was engaged in the furtherance of the process of manufacture of intoxicating liquor. Therefore the homicide was committed while the defendant, and his son and nephew, both of whom were under his direction and control, were engaged in the commission of a felony, and a case was made out on that point. The instructions properly submitted that issue to the jury.

III. Next, it is necessary to...