State v. Shelton

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Fox
• Citation: 122 S.W. 732,223 Mo. 118
• Decision Date: 23 November 1909
• Parties: STATE v. SHELTON.

122 S.W. 732 223 Mo. 118 STATE
v.
SHELTON. Supreme Court of Missouri, Division No. 2. November 23, 1909.

1. HOMICIDE (§ 127) — MURDER IN THE FIRST DEGREE — SUFFICIENCY OF INFORMATION.

An information against two defendants for first-degree murder held to sufficiently charge the offense, and that an allegation therein that the offense was committed with an ax, "which they the said F. S. and H. K. then and there in their hands held," while not to be commended, did not render it fatally defective.

2. CRIMINAL LAW (§ 1158) — REVIEW ON APPEAL — WAIVER OF PRELIMINARY EXAMINATION — CONCLUSION OF TRIAL COURT.

Where it appears on appeal that the trial court heard the evidence on both sides, and decided that there had been a waiver of a preliminary examination as was recited in the transcript of a justice of the peace, and defendants were permitted to introduce evidence to contradict the conclusion of the trial court, its finding will not be disturbed.

3. CRIMINAL LAW (§ 1087) — RECORD ON APPEAL — BILL OF EXCEPTIONS — EXTENSION OF TIME FOR FILING.

An extreme doubt as to whether or not disclosures of the record on appeal as to the entry of a nunc pro tunc order, extending the time for filing a bill of exceptions, authorized the filing, will be resolved in defendant's favor, but the action of the court, after lapse of two terms, and without any notice to the prosecuting officer, and without any showing as to any memorandum made by the court, either on its docket or on the record, that error was committed in preparation of the record, cannot be approved.

4. CRIMINAL LAW (§ 1064) — PRESERVATION OF QUESTIONS FOR REVIEW — MOTION FOR NEW TRIAL.

Whatever occurs during the examination and qualification of the panel of jurors from which the trial panel is to be selected must be preserved, not only in the bill of exceptions, but the court's attention must be directed to a complaint concerning the same in the motion for a new trial.

5. HOMICIDE (§ 166) — EVIDENCE — AS TO MOTIVE.

It is not improper to supplement evidence indicating that robbery was the motive for a killing, with proof that deceased usually had money in his possession.

6. CRIMINAL LAW (§ 508) — EVIDENCE — TESTIMONY OF ACCOMPLICE — ADMISSIBILITY.

That an accomplice not jointly prosecuted with the defendant is a competent witness for the state is clearly settled by Rev. St. 1899, § 4680 (Ann. St. 1906, p. 2549), providing that "any person who has been convicted of a criminal offense is, notwithstanding, a competent witness."

7. CRIMINAL LAW (§ 508) — EVIDENCE — TESTIMONY OF ACCOMPLICE — ADMISSIBILITY.

Any inducements held out to an accomplice, and the fact that he admitted that he was an accomplice, are questions which affect only his credibility and the weight of his testimony, which are matters for the jury's consideration, and do not affect his competency.

8. CRIMINAL LAW (§ 775) — TRIAL — INSTRUCTION AS TO AN ALIBI.

An instruction that, unless the jury found from all the facts and circumstances given in evidence, the presence of defendant at the place of the alleged murder, and his guilt beyond reasonable

[122 S.W. 733]

doubt, they should acquit him, sufficiently covered the defense of alibi.

9. CRIMINAL LAW (§ 780) — TRIAL — INSTRUCTIONS — TESTIMONY OF ACCOMPLICE.

An instruction that the testimony of an accomplice, that is, the person who actually commits or participates in the crime, when not corroborated by some other person or persons not implicated as to matters material to the issues, that is, matters connecting defendant with the commission of the crime, ought to be received with great caution, and the jury ought to be fully satisfied with its truth before they convict on such testimony, and that the jury were at liberty to convict "on the uncorroborated testimony of an accomplice alone, if any, will establish defendant's guilt," held to substantially accord with uniform rulings of the Supreme Court on the subject.

10. CRIMINAL LAW (§ 829) — TRIAL — INSTRUCTIONS — REQUESTS.

Where an instruction given fully covered the subject of the corroboration of the testimony of an accomplice, a requested instruction by defendant as to such matter was properly refused.

11. CRIMINAL LAW (§ 784) — INSTRUCTIONS — "CIRCUMSTANTIAL EVIDENCE."

An instruction, in a murder case, told the jury that the state sought to some extent to convict defendant on circumstantial evidence (that is, there is no evidence by any witness that saw the fatal blow struck); that evidence is of two kinds, direct and circumstantial; that circumstantial evidence is proof of certain facts and circumstances in a certain case in which the jury may infer other and connected facts which usually and reasonably follow according to the common experience of mankind; and that crime may be proven by circumstantial evidence as well as by direct testimony of eyewitnesses, but the facts and circumstances in evidence should be consistent with each other and with defendant's guilt, and inconsistent with any reasonable theory of his innocence. Held, that it declared the law substantially in harmony with the holdings of the Supreme Court.

12. CRIMINAL LAW (§ 785) — TRIAL — INSTRUCTIONS — CREDIBILITY OF WITNESSES — WEIGHT OF TESTIMONY.

In a murder case, an instruction on the credibility of witnesses and weight to be attached to their testimony substantially told the jury that they were the sole judges thereof, that, in determining such credit, weight, and value to be attached to the testimony of any witness, they should consider the character of the witness, his or her manner on the stand and of testifying, his or her interest, if any, in the result; his or her relation to or feeling for defendant or deceased; the probability of his or her statement, as well as all other facts and circumstances detailed in evidence; and finally that, if they believed any witness willfully or knowingly swore falsely to any material fact, they were at liberty to disregard any part of his testimony. Held sufficient.

13. CRIMINAL LAW (§ 755½) — TRIAL — INSTRUCTIONS — COMMENT ON FACTS AND CALLING ATTENTION TO PARTICULAR FACTS IN TESTIMONY.

The court should not comment on the facts.

14. CRIMINAL LAW (§ 811) — INSTRUCTIONS — UNDUE PROMINENCE TO PARTICULAR FACTS.

The court should not call the jury's attention especially to particular facts developed in the testimony.

15. CRIMINAL LAW (§ 811) — INSTRUCTIONS — UNDUE PROMINENCE TO PARTICULAR MATTERS.

The manner and means of inducing an accomplice to testify with the view of getting a lighter punishment are matters of legitimate argument before the jury, but it would manifestly be erroneous to point out those facts, and say to the jury that they must specially consider them in weighing his testimony.

16. HOMICIDE (§ 341) — INSTRUCTIONS — DESIGNATION OF PUNISHMENT JURY MAY INFLICT — HARMLESS ERROR.

The jury having been required to find every essential element of murder in the first degree, and having found defendant guilty thereof, and fixed his punishment pursuant to Act March 18, 1907 (Laws 1907, p. 235, § 1), amending section 1817, Rev. St. 1899 (Ann. St. 1906, p. 1262), providing for decision by the jury of the punishment to be inflicted on conviction of murder in the first degree, defendant was not injured by the court's failure to designate the punishment they might inflict.

17. CRIMINAL LAW (§ 741) — TRIAL — WEIGHT OF TESTIMONY — QUESTION FOR JURY.

It is the exclusive province of the jury to determine the weight of testimony introduced both by the state and defendant.

18. HOMICIDE (§ 253) — EVIDENCE — SUFFICIENCY.

Evidence held to support a conviction of murder in the first degree in a case wherein the conviction rested largely on testimony of an accomplice.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Frank Shelton was convicted of murder, and he appeals. Affirmed.

This cause is now before this court upon appeal from a judgment of the circuit court of Christian county, Mo., convicting the defendant of murder of the first degree. The amended information, upon which defendant was tried, and which was duly verified, was filed by the prosecuting attorney in the circuit court of Christian county on the 25th of August, 1908. Omitting formal parts, the charge upon which defendant was convicted was thus stated in the information: "Fred W. Barrett, prosecuting attorney within and for the county of Christian, in the state of

[122 S.W. 734]

Missouri, for an amended information, informs the court under his official oath and upon his best information and belief that Frank Shelton and Henry Killion on or about the 12th day of May, 1908, in the said county of Christian, in the state of Missouri, in and upon the body of one William Bowen, then and there being, feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought did make an assault, and with a dangerous and deadly weapon, to wit, an ax, of the weight of three pounds, which they, the said Frank Shelton and Henry Killion, in their hands then and there had and held, him, the said William Bowen, then and there feloniously, on purpose and of their malice aforethought, willfully, deliberately, premeditatedly did assault, strike, beat, and wound; and with the ax aforesaid then and there feloniously, on purpose, and of their malice aforethought, willfully, deliberately, and premeditatedly, did assault, strike, beat and wound him, the said William Bowen, in and upon the head of him, the said William Bowen, giving him, the said William Bowen, with the dangerous and deadly weapon aforesaid, to wit, the ax aforesaid, in and upon the head of him, the said William Bowen, one mortal wound of the length of two inches and the width of one-half inch, and the depth of one inch, of which said mortal wound the said William Bowen then and there instantly died. And the said Fred W. Barrett, the prosecuting attorney aforesaid, under his oath of office aforesaid, does say...