State v. Spica, 50289

CourtUnited States State Supreme Court of Missouri
Citation389 S.W.2d 35
Docket NumberNo. 2,No. 50289,50289,2
PartiesSTATE of Missouri, Respondent, v. John Paul SPICA, Jr., Appellant
Decision Date08 March 1965

Thomas F. Eagleton, Atty. Gen., Jeremiah D. Finnegan and James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.

Norman S. London, St. Louis, for defendant-appellant.

STOCKARD, Commissioner.

John Paul Spica, Jr. was found guilty by a jury of murder in the first degree and his punishment was assessed at life imprisonment. In his appeal from the ensuing judgment he does not challenge the sufficiency of the evidence. For that reason the statement of facts will be in summary form.

On June 8, 1962, John Myszak, a realtor, went to a residence in St. Louis County pursuant to arrangements previously made by telephone to show the premises to a person he thought to be a prospective purchaser. As he stood in the driveway near the street he was shot to death by the occupant of an automobile who then drove away. About a month later the murder weapon, a .38 colt automatic, was found in a nearby grassy vacant area. Neither the person firing the shots nor the automobile in which he was riding was identified.

John Myszak and his wife had previously had domestic difficulties, and she had talked to appellant about her troubles and asked him if he could arrange to have her husband killed. On June 20, after her husband had been killed, Mrs. Myszak called appellant and asked him to come to her home. When appellant arrived, with the knowledge and consent of Mrs. Myszak, Detective Edwards was concealed under some shrubbery near the front entrance of the house. Appellant talked to Mrs. Myszak within the hearing of Detective Edwards, and the substance of that conversation was that Mrs. Myszak thought that the plan to have her husband killed had been 'dropped,' but that appellant stated that her husband's death 'definitely' was the result of their previous conversations and he wanted $5,000, the amount previously agreed to.

Six meetings were had thereafter between Mrs. Myszak and appellant. With the cooperation of the police Mrs. Myszak had concealed on her person a small battery powered radio transmitter. Police officers were located nearby with a receiving set and a tape recorder, and the conversations between appellant and Mrs. Myszak at five of these six meetings were recorded. Without detailing the exact conversations, it may be said that appellant told Mrs. Myszak that he had arranged to have her husband killed, and he demanded the payment of $5,000. At the last meeting, Mrs. Myszak gave appellant $1,000 in marked bills furnished to her by the police, and immediately thereafter he was arrested.

Appellant testified on his own behalf, and he stated that Mrs. Myszak had asked him to arrange to have her husband killed, but that he paid no attention to the request because he believed it was the result of her intoxicated condition. He further testified that when he met Mrs Myszak on June 20 and she asked him if her husband's death was the result of their earlier conversations, he then seized upon the opportunity to blackmail her and demand the payment of $5,000.

Turning now to appellant's assignments of error, we will consider first he challenge pertaining to the indictment. He asserts that the 'indictment and evidence were at total variance' in that the indictment charged that he 'personally committed' the crime of murder, and the evidence was that 'appellant had not committed the offense but was merely part of a conspiracy to have the offense committed.' By reason of this, appellant asserts, he was denied the opportunity and right to prepare adequately for trial and was denied the right to be advised of the nature of the offense pending against him. No cases are cited.

Section 556.170, RSMo 1959, V.A.M.S., provides that a principal in the second degree in the commission of any felony, or an accessory to any murder or other felony before the fact 'may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.' An accessory before the fact is defined "to be one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime." State v. Stidham, Mo., 305 S.W.2d 7, 15; 22 C.J.S. Criminal Law Sec. 93. Where the common law distinction between principals and accessories before the fact had been abolished by statute, as in Missouri, 'an accessory before the fact may be indicted as though he were the principal [see State v. Falco, 330 Mo. 982, 51 S.W.2d 1030; State v. Stidham, supra; State v. Tripp, Mo., 303 S.W.2d 627], without setting out the facts by which he aided and abetted, or advised and procured, the commission of the crime.' 42 C.J.S. Indictments and Informations Sec. 148. See also 22 C.J.S. Criminal Law Sec. 82c, and 40 C.J.S. Homicide Sec. 181. Appellant's contention that he was denied the opportunity and right to prepare adequately for trial and the right to be advised of the nature of the offense, implies a reference to Section 18(a), Art. I, Constitution of Missouri, V.A.M.S., wherein it is provided that an accused has the right 'to demand the nature and cause of the accusation.' However, it has repeatedly been held in other jurisdictions where the issue has been raised that an information or indictment charging an accused as a principal, as authorized by Section 556.170, does not infringe upon the above constitutional provision. See People v. Bliven, 112 N.Y. 79, 19 N.E. 638, 8 Am.St.Rep. 701; State v. Whitman, 103 Minn. 92, 114 N.W. 363, 14 Ann.Cas. 309; State v. Geddes, 22 Mont. 68, 55 P. 919; Sledge v. State, 142 Neb. 350, 354, 6 N.W.2d 76; Hunter v. State, 47 Ariz. 244, 55 P.2d 310; State v. Leeper, 199 Iowa 432, 200 N.W. 732; State v. Burch, 199 Iowa 221, 200 N.W. 442; and Scharman v. State, 115 Neb. 109, 211 N.W. 613. The 'nature and cause of the accusation' in this case is murder in the first degree as defined by the statutes of Missouri, and that definition includes the acts of an accessory before the fact in procuring the commission of the crime. The State was not required to plead its evidence in the indictment.

On April 27, 1963, when this case was set for trial on May 6, appellant filed a motion for a continuance 'for trial at a later date' on the ground that local newspapers and television stations had given wide publicity to appellant's arrest and had referred to him as a 'hoodlum.' It was alleged in the motion that as a result of the publicity the 'residents of St. Louis County have been prejudiced against [him] and a trial * * * at this time would deny to him his right to a fair and impartial trial.' Appellant contends, first, that the trial court erred in overruling his motion for a continuance, and second, that the court 'further erred in denying [his] challenges for cause as to jurors who were familiar with the case.' No cases are cited.

The trial court has a wide discretion in determining whether an accused is entitled to a continuance on the ground that publicity concerning the case has been such to prevent a fair and impartial trial. State v. Golden, 353 Mo. 585, 183 S.W.2d 109, certiorari denied, 324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427, Finnigan v. United States, 204 F.2d 105, certiorari denied, 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347. This necessarily is so because the trial court is in a much better position to determine the propriety of a postponement of the trial on this ground than an appellate court, and for this reason 'it requires a very strong showing to induce the higher court to interfere.' State v. Golden, supra, 183 S.W.2d at p. 113. 'As a general rule, and in the absence of extraordinary or unusual circumstances, public excitement or prejudice is not of itself a sufficient cause for the continuance of a criminal case, at least where such excitement or prejudice is not such as to prevent a fair and impartial trial. The mere fact that there has been widespread adverse pretrial publicity about accused does not, by itself, establish the reasonable probability that accused cannot obtain a fair and impartial jury at the trial so as to entitle him to a continuance. In the vast majority of such cases the proper procedure is not to postpone the trial, but to proceed to trial and to determine on the voir dire of the panel and the individual talesmen whether a fair and impartial jury can be selected.' 22A C.J.S. Criminal Law Sec. 497. This was the procedure followed in this case. In view of the total circumstances there was nothing in the publicity that was basically unfair, or that was designed to create or would have had the effect of creating public excitement or prejudice against appellant of the nature which would prevent the empaneling of a fair and impartial jury. There was no abuse of discretion on the part of the trial court. See State v. Johnstone, Mo., 335 S.W.2d 199, 206; United States v. Hoffa, D.C., 156 F.Supp. 495; and the annotation in 10 L.Ed.2d 1243.

Turning now to the second contention, it is the general rule that familiarity alone on the part of a juror with the facts and circumstances of a case which were obtained from news reports pertaining thereto, without the formation of an opinion as to the guilt or innocence of the accused, does not necessarily require disqualification of the juror for cause. 50 C.J.S. Juries Secs. 233 and 238; State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 584; Annotation, 10 L.Ed.2d 1243 at p. 1265 et seq. Each of the jurors who admitted reading about this case or hearing news reports concerning it stated that he had formed no opinion as to appellant's guilt or innocence and that he could try the case impartially on the evidence. The trial court has considerable discretion in ruling on challenges of jurors who are not disqualified as a matter of law, State v. Taylor, 324 S.W.2d 643, 76 A.L.R.2d 671;...

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