State v. Rowe

• Decision Date: 19 February 1930
• Docket Number: No. 30129.,30129.
• Citation: 24 S.W.2d 1032
• Parties: THE STATE v. OSCAR ROWE, Appellant.
• Court: Missouri Supreme Court

24 S.W.2d 1032

THE STATE v. OSCAR ROWE, Appellant.

No. 30129.

Supreme Court of Missouri, Division No. 2.

February 19, 1930.

Appeal from Jackson Circuit Court. — Hon. Clarence A. Burney, Judge.

AFFIRMED.

Fred W. Coon, Horace Guffin and Forest W. Hanna for appellant.

(1) The court erred in admitting evidence tending to show the defendant guilty of other crimes separate and distinct from the one charged. State v. Fenley, 275 S.W. 44; State v. Davis, 292 S.W. 433; State v. Tunnell, 296 S.W. 427; State v. Kurtz, 295 S.W. 749; State v. Preslar, 290 S.W. 144; State v. Eckstein, 5 S.W. (2d) 648. (2) The conduct and argument of the prosecuting attorney inflamed the jury and prejudiced them against the defendant, requiring the reversal of this case. State v. Byrd, 278 Mo. 426, 213 S.W. 37; State v. Campbell, 278 S.W. 1052; State v. Cox, 268 S.W. 87; State v. Guerringer, 265 Mo. 408, 178 S.W. 68; State v. Mathis, 18 S.W. (2d) 10. (3) The court erred in instructing the jury on the State's side of the case and wholly ignoring the defense. State v. Glass, 300 S.W. 694; State v. Slusher, 301 Mo. 285, 256 S.W. 819; State v. Cantrell, 234 S.W. 801. (4) Defendant was not given the fair and impartial trial to which every citizen is entitled under our Constitution and laws. State v. Bunton, 280 S.W. 1042; State v. Dixon, 253 S. W 748; State v. Guerringer, 265 Mo. 408, 178 S.W. 68.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) The demurrer was properly overruled. The State proved the giving of the corn whiskey to Arch Duncan, the prosecuting witness, by a co-conspirator or employee of the defendant; that defendant owned the soft-drink parlor where the transaction took place; that defendant procured the whiskey that was given away; that he was the father of the general scheme, and that that scheme was carried out under his instructions and general supervision. (2) Complaint is made of the action of the trial court in overruling objections to parts of the opening statement of the prosecuting attorney. The record shows that the State proved all the facts the prosecuting attorney referred to and included in his opening statement, and that the opening statement was not argumentative. The prosecuting attorney was warned by the court to confine himself to just those facts he expected to prove. This was proper. State v. Moon, 283 S.W. 468; State v. Brown, 247 Mo. 730. (3) It is difficult to formulate a general rule defining the limit to which prosecuting attorneys may go in their arguments to juries, and analogous cases afford little aid in this regard. The extent of the prejudice aroused in the minds of the jury by remarks must therefore be measured by the facts in each particular case. State v. Brown, supra. The trial court ruled out the question and answers concerning the chloral procured by the defendant for use in the whiskey to be given away. However, the jury heard it and when the prosecuting attorney, in his argument, made reference to "giving them this poisonous whiskey until they became so stupid they could not stand up," we confess he bordered upon prejudicial and improper argument outside of the record. State v. Guerringer, 265 Mo. 408, 178 S.W. 65; State v. Nicholson, 7 S.W. (2d) 375; State v. Mathis, 18 S.W. (2d) 8. It is proper for the State's attorney to refer to evidence and deduce theories tending to confirm the main issues. State v. Conrad, 14 S.W. (2d) 608. However, determining whether argument is improper is largely within the discretion of the trial court. State v. Marshall, 317 Mo. 413; State v. White, 299 Mo. 612, 253 S.W. 724; State v. Hart, 292 Mo. 98, 237 S.W. 473. (4) Appellant complains of Instruction 5 for the reason that it was covered in Instruction 8. Respondent concedes that Instruction 5 was repeated in the first paragraph of Instruction 8; however, we do not confess that the duplication of said instruction was prejudicial to the rights and interests of this defendant. (5) Appellant charges the court with error in failing to give an instruction cautioning the jury as to the credit and the weight and value to be given to the testimony of any witness offered on behalf of the State who, himself and themselves, were co-conspirators, or who were acting in concert with others in the commission of the crime charged. Defendant offered no instruction on this point. Where the main instruction fully covers the law of the case, the defendant is under the duty of requesting additional instruction on all collateral issues relating to his defense. State v. Gurnee, 309 Mo. 16, 274 S.W. 58; State v. Hubbard, 295 S.W. 790; State v. Robinett, 312 Mo. 641, 281 S.W. 29; State v. Hadlock, 316 Mo. 7, 289 S.W. 945; State v. Sandoe, 316 Mo. 65, 289 S.W. 890. (6) Testimony of the prosecuting witness, as to statements made by persons claimed to have been acting for the defendant in the commission of crime was admissible. State v. Pollnow, 14 S.W. (2d) 574; State v. Pugh, 296 S.W. 138. (7) The record discloses that no instruction on the defense of alibi was requested by the defense. Failure to instruct on collateral matter is not error unless the instruction was requested. State v. Aurentz, 315 Mo. 242; State v. Silvey, 296 S.W. 128; State v. Hadlock, 316 Mo. 1; State v. English, 308 Mo. 695.

DAVIS, C.

The grand jury of Jackson County returned an indictment in the circuit court charging defendant with the offense of giving to Arch Duncan corn whiskey. On a trial, the defendant was found guilty by the verdict of the jury, and his punishment assessed at five years' imprisonment in the penitentiary. He appealed from the judgment entered on the verdict.

The evidence adduced on behalf of the State warrants the finding that on November 5, 1928, and prior thereto and thereafter, defendant was the lessee and in possession of premises located at and known as 602 Main Street in Kansas City. The lease to defendant designated the use of the premises as a soft-drink parlor and a cigar store. The evidence tends to show that defendant operated on the ground floor a restaurant in the front and a gambling establishment in the rear. On the second floor he operated a house of prostitution and Pete Rafferty was his manager. On the premises he sold whiskey. One police officer, a witness for defendant, said the place was what the officers knew as a den of thieves. On said day defendant was a precinct captain for the Republican party and was a worker relative to the election of November 6, 1928, commonly called the Presidential election.

Some time during the summer of 1928 defendant spoke of getting the Democratic voters drunk to prevent their voting. On October 7, 1928, at 602 Main Street, in speaking of election day, he said in the presence of one Keller: "Well, we have got it all arranged: we are going to have a good liquor party; we will get these voters drunk."

On the morning of November 5, 1928, defendant, one Keller, one James Grant and others were present at 602 Main Street. About nine o'clock that morning defendant and Keller, as Keller testified, went to the police garage, where defendant obtained about twenty-five gallons of whiskey, and, in defendant's automobile, they transported it to 602 Main Street. At the direction of defendant, around noon, Grant went to the police garage and returned with some gallons of whiskey. About one o'clock that afternoon, defendant, Grant and their associates, together with four police detectives, to-wit, officers Morley, King, Red Perrin and one other, whose name could not be remembered, again went to the police garage for whiskey. Three cars were used in thus going, a truck, defendant's car and the officers' car. The truck was driven by an employee of defendant, and it was used to transport whiskey from the police garage to 602 Main Street. In all, sixty-five gallons of corn whiskey were transported by defendant and his associates and employees from the police garage to 602 Main Street on November 5, 1928.

Later that afternoon defendant said that "he wanted to give this whiskey to Al Smith voters so as to get them drunk and keep them from voting." Pursuant thereto, he told his associates and scouts to go out and get all the men wearing Al Smith buttons and bring them in to 602 Main Street. Among the men thus accosted were Arch Duncan and his brother. They were invited into 602 Main Street. Defendant and his associates poured the whiskey from the containers procured from the police garage into quart bottles and served it in tin cups and glasses. Defendant was there and gave it to his confederates to distribute. A band was provided to lure men in and it was playing. The announced lure to the men was whiskey, and, upon this failing to entice them, music was mentioned. When Duncan entered about fifty men were present. Duncan was tendered a drink and he took it and tasted it; but, as it had a queer taste, he refused to drink more. Others in the place were given whiskey. When the men in the room reached a certain stage of intoxication, they were dragged to the basement. Defendant's associates would lift the heads of the drunken men in the basement and pour whiskey down their throats. Some two hundred men were in the basement in all stages of intoxication. Some were pitifully drunk and lying on the floor. The valuables of those lured into the place were taken and retained. Around two o'clock A.M. on November 6, 1928, the police wagons arrived. The wagons were used to convey the drunken men found in the basement to the holdover. No charges were preferred against them. They were there detained until about six-thirty P.M. on the evening of November 6, 1928, when they were released.

The evidence further tends to show that, after the men were lured into 602 Main Street they were prevented from departing by defendant's associates stationed at the doors. These associates or guards were armed with riot guns and revolvers. Some of the riot guns...