State v. Spencer

• Decision Date: 10 June 1946
• Docket Number: 39779
• Citation: 195 S.W.2d 99,355 Mo. 65
• Parties: State v. Lloyd Walter Spencer, Appellant
• Court: Missouri Supreme Court

195 S.W.2d 99

355 Mo. 65

State v. Lloyd Walter Spencer, Appellant

No. 39779

Supreme Court of Missouri

June 10, 1946

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Affirmed.

J K. Owens for appellant.

J E. Taylor, Attorney General, and Will F. Berry, Jr., Assistant Attorney General, for respondent.

(1) The information in this cause is sufficient in form and properly charges the offense of murder in the first degree, together with allegations of previous convictions such as to bring the prosecution within the provisions of the habitual criminal act. Secs. 4376, 4854, R.S. 1939; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760. (2) The verdict is in proper form, is responsive to the issues, and complies with the requirements of Section 4378, R.S. 1939. State v. Tyler, 349 Mo. 167, 159 S.W.2d 777. (3) The record in the cause discloses that defendant was formally arraigned, was granted allocution after verdict, and was sentenced in accordance with the verdict of the jury. (4) The court did not err in overruling appellant's Assignment of Error No. 1 in his motion for new trial. Secs. 4067, 4124, R.S. 1939; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Carroll, 333 Mo. 558, 62 S.W.2d 863. (5) The court did not err in overruling appellant's Assignment of Error No. 2 in his motion for new trial. State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061. (6) The court did not err in overruling appellant's Assignment of Error No. 3 in his motion for new trial. See authorities under (4) above. (7) The court did not err in overruling appellant's Assignment of Error No. 4 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Janes, 318 Mo. 525, 1 S.W.2d 137. (8) The court did not err in overruling appellant's Assignment of Error No. 5 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Howard, 352 Mo. 410, 177 S.W.2d 616; State v. Leonard, 182 S.W.2d 548. (9) The court did not err in overruling appellant's Assignment of Error No. 6 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Bunch, 333 Mo. 20, 62 S.W.2d 439. (10) The court did not err in overruling appellant's Assignment of Error No. 7 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Howard, 352 Mo. 410, 177 S.W.2d 616. (11) The court did not err in overruling appellant's Assignment of Error No. 8 in his motion for new trial. State v. Willhite, 159 S.W.2d 768. (12) The court did not err in overruling appellant's Assignment of Error No. 9 in his motion for new trial. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523; State v. Page, 130 S.W.2d 520. (13) The court did not err in overruling appellant's Assignment of Error No. 10 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Peters, 123 S.W.2d 34; State v. Moore, 36 S.W.2d 928; State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523. (14) The court did not err in overruling appellant's Assignment of Error No. 11 in his motion for new trial. State v. Tharp, 334 Mo. 46, 64 S.W.2d 249. (15) The court did not err in overruling appellants Assignment of Error No. 12 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642. (16) The court did not err in overruling appellant's Assignment of Error No. 13 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Janes, 318 Mo. 525, 1 S.W.2d 137. (17) The court did not err in overruling appellant's Assignments of Error Nos. 14, 15 and 16 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Biven, 151 S.W.2d 1114.

OPINION

Ellison, P.J.

The appellant was convicted in the circuit court of Jackson county of murder in the first degree for shooting and killing with a pistol one William L. Dore at the "Beer Tavern" located at 6402 East Fifteenth Street in Kansas City. The jury assessed his punishment at life imprisonment in the state penitentiary. He was prosecuted by an information which charged him as an habitual criminal under Sec. 4854, ^[1] on account of three prior convictions of felony and service of punishment. These were admitted by the appellant at the beginning of the trial and the jury found one of them. The homicide also was admitted, appellant's main defense being self-defense. He was represented in the trial by able counsel appointed by the court. But no brief in his behalf has been filed here. So we must look to his motion for new trial in the circuit court for his charges of error. It contains 16 assignments but many of them can be combined in our discussion.

The appellant and the deceased had been gambling on a pinball machine at the Beer Tavern and quarrelled violently, the appellant drawing a knife, but hostilities were checked. The State's evidence showed that presently thereafter the appellant left and returned in about fifteen minutes holding a pistol concealed in his right hand coat pocket. About that time the deceased walked out the front door of the tavern onto the sidewalk, when from a distance of about ten feet the appellant shot him. Appellant then advanced and after the deceased had fallen shot him twice more from a lesser distance, the third shot being from only a foot away. In his own behalf, appellant testified the deceased approached him in a threatening way and reached in his pocket, whereupon he (appellant) fired his pistol in the air once, and as the deceased continued forward, he fired the fatal shots.

As to the record proper, the information and verdict were in proper form, respectively, under the three decisions cited in the margin, ^[2] and appellant was granted allocution under Sec. 4102. On matters of exception, the first four assignments of error in the motion for new trial, complain for four several reasons because the trial court refused to discharge the jury panel on appellant's motion.

The first of these was that the members of the panel were allowed to separate "during the noon recess" and to converse with the uncle of the deceased; and the fourth was that they were allowed to separate during the night of the first day, the selection of the jury not having been completed that day. The incident referred to as occurring during the noon recess was on the first day of the trial, after a part of the jury panel were sworn to answer questions concerning their qualifications, but before the jury had been selected, impaneled and sworn to try the cause. The matter was promptly brought to the attention of the court when court convened, and evidence was heard. The uncle admitted he talked to one man in the hall and told him the deceased was his nephew and a mighty nice fellow, but he said he didn't know the man was on the jury panel. The venireman, a Mr. Wolf [who was not chosen for the jury] said the uncle told him he was kin to the deceased but nothing else, and Wolf walked away.

There is no merit in the assignment as to either incident. No contention is made that anything untoward occurred at the night recess. Under the statutes ^[3] and such decisions as State v. McGee, 336 Mo. 1082, 1090(1), 83 S.W.2d 98, 103(1), the trial court has a discretion to permit the jury to separate, before they are impaneled and sworn, and error cannot be maintained in the absence of a showing of prejudice resulting from the separation. Neither party had requested that the veniremen be kept together, and the facts shown in evidence disclose that appellant was not prejudiced.

The next complaint under this head is that members of the panel "were permitted to read newspapers which they stated they had read and which stated that (appellant) was not only guilty of certain offenses of which he had been convicted, but stated that when he was last discharged from the penitentiary he had been arrested nineteen times, which was prejudicial. . . ." The alleged prejudicial article appeared in the noon edition of the Kansas City Star on the day the jury was impaneled. It said: "Lloyd W. Spencer, 45 years old, 6210 East Sixteenth Street, is to be tried in connection with the fatal shooting last May 18 of William Dore, 39, of 219 West Ninth Street, at the Beer Barrel tavern, 6402 East Fifteenth Street. The shooting followed an argument over a $ 2 bet on a pinball game. Police records show Spencer, an ex-convict, has nineteen previous arrests here."

It will be observed that the news story did not charge the appellant was guilty of any offense, but did say he was an ex-convict and had been arrested 19 times in Kansas City. The veniremen were searchingly questioned separately about the effect of the article on their minds, in their voir dire examination by appellant's counsel. Eight of them said they had read it. All declared it made no impression and would have no effect on them in the decision of the case if they were chosen as jurors. Only one of them served on the jury. Sec. 4060 declares that even if a juror in a criminal case have an opinion on the issue or any material fact to be tried, yet if such opinion be founded only on rumor and newspaper reports and is not such as to prejudice or bias his mind, he may nevertheless be sworn. Under the facts here there was no prejudice or reversible error.

The next assignment charges error in the trial court's failure to discharge the jury panel (not the jury) at the time of the voir dire examination for prejudicial remarks by the prosecuting attorney concerning his interest in the cause. As already indicated, much time was consumed in completing the jury panel -- until noon of the second day. Nearly half of the 370 page bill of exceptions covers that part of the proceedings. And yet the motion for new trial wholly fails to specify the incident referred to. This alone would be enough to invalidate the assignment under Sec. 4125 which requires the assignments in...