State v. Stogsdill

• Decision Date: 11 December 1929
• Docket Number: No. 29555.,29555.
• Citation: 23 S.W.2d 22
• Parties: THE STATE v. R.H. STOGSDILL, Appellant.
• Court: Missouri Supreme Court

23 S.W.2d 22

THE STATE v. R.H. STOGSDILL, Appellant.

No. 29555.

Supreme Court of Missouri, Division Two.

December 11, 1929.

Appeal from Cape Girardeau Circuit Court. — Hon. E.M. Dearing, Special Judge.

AFFIRMED.

J.A. McCollum and Spradling & Dalton for appellant.

(1) The defendant was entitled to an instruction advising the jury that unless his guilt was proven beyond a reasonable doubt, the jury should give him the benefit of the doubt and acquit him. No such instruction was given. Instruction 5 so blended the subjects of presumption of innocence and reasonable doubt as to minimize the effect of any doubt which might have existed in the minds of the jury. Defendant was entitled to a clear and concise instruction on reasonable doubt, but it was not given, and the failure to do so was error. Sec. 4025, R.S. 1919; State v. Douglas, 258 Mo. 281; State v. Clark, 147 Mo. 20. (2) The failure of the court to give necessary instructions in felony cases, without request or exception by defendant, is good cause for new trial. State v. Conway, 241 Mo. 271; State v. Connor, 252 S.W. 718. (3) The court permitted George Fowler, over the objection and exception of defendant, to state that he had told his wife, brother and mother-in-law just how deceased had been killed, and to relate the conversations with reference to the killing. The homicide had already been accomplished and the statements were self-serving and narratives of past occurrences and not inadmissible. State v. Forshee, 199 Mo. 142; State v. Harris, 150 Mo. 56; State v. Schaeffer, 172 Mo. 335; State v. Buckley, 298 S.W. 777. George Fowler was a co-indictee with defendant, and, according to his testimony, an accomplice, and it was to his interest to speak and testify falsely. The statements made by him were self-serving and the testimony of J.W. Fowler, a brother, repeating the conversation with his brother with reference to the killing of Hargett was hearsay and highly prejudicial. State v. Creed, 252 S.W. 680; State v. Tippett, 296 S.W. 134; Legere v. State, 77 S.W. 1060. (4) The State, over the objection and exception of defendant, exhibited and sought to have admitted in evidence the bloody clothing of deceased. The offer was refused. There was no question about the identity of deceased, the nature of the wounds, and their location, character, or fatality. The exhibition and offer to introduce them in evidence was highly prejudicial to defendant. State v. Creed, 252 S.W. 681; State v. Reninson, 267 S.W. 853; State v. Pearson, 270 S.W. 351. The court admitted in evidence the bloody sheet on the bed in the room from which deceased is alleged to have been taken. At no time during the trial was there a controversy about the blood on the sheet, or the wounds of deceased, and the admission of the sheet in evidence was inadmissible, highly prejudicial and inflammatory. Cases supra. (5) The court permitted Crader and Maxwell to testify to conversations and statements between themselves, Fowler, Lasley, Horstman, Stokely, and others. At the time these conversations were received in evidence, no conspiracy was shown to exist, and such conversations and statements were not competent and the court erred in admitting them. State v. Kennedy, 177 Mo. 98; State v. Weaver, 165 Mo. 1; State v. Thompson, 238 S.W. 787; State v. Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32. (6) It was error to admit in evidence the statements, conversations and threats alleged to have been made by Fowler and Lasley against deceased without a preliminary showing that defendant was present at the time, or the existence of a conspiracy, or a common purpose on the part of all defendants to kill deceased. At the time these conversations, statements and threats were received in evidence, the State had only shown that Fowler and Lasley belonged to the Brotherhood of Railway Trainmen and that deceased did not. It was error to admit this character of evidence. State v. Austin, 183 Mo. 478; State v. Faulkner, 175 Mo. 546. (7) The only evidence offered by the State to show a conspiracy was the statement alleged to have been made by Fowler and Lasley to Crader, Maxwell and others. Fowler and Lasley were jointly indicted with defendant and, according to the State's theory of this case, they were co-conspirators with defendant, and it is a well-established principle of law that a conspiracy cannot be established by the conspirators alone, but must be shown by other facts and circumstances independent of their statements. State v. Loeb, 190 S.W. 304; State v. Gilmore, 132 N.W. 53. (8) The State, without incompetent, irrelevant and illegal testimony sought to show a conspiracy to kill deceased. The existence of such conspiracy was not established by competent and relevant evidence, but the evidence admitted to establish such conspiracy was highly prejudicial and poisoned the minds of the jury against defendant. One-half the evidence was devoted to the establishment of a conspiracy, and the court failed and neglected to give one single instruction on this question. This cause was submitted to the jury without a definition of conspiracy, or the essentials constituting the same. The defendant submits that under the law and in justice to himself, the court should have given an instruction on this question. Sec. 4025, R.S. 1919; also Cases supra. (9) The court permitted Bisplinghoff to state that he was a member of the Brotherhood of Railway Trainmen; that Lasley and Fowler were members of the same organization; that deceased had sought an application for membership in the organization, but had been refused. Deceased at the time of his death was not a member of the organization, but was referred to as "scally" or "scab." This testimony was offered for the purpose of showing a motive on the part of defendants Lasley and Fowler for the killing of deceased. The defendant offered to show that in 1923, when first employed by the Frisco, he was put to work at Springfield; that at that time the shopmen's strike was in progress, and that non-union men had taken the places of union men in the shops; that his first duties with the Frisco were to protect the non-union men against the union strikers. Defendant contends that he should have been permitted to make such showing. It disclosed his relationship with the Brotherhood of Railway Trainmen and was some evidence to rebut the motive which the State had endeavored to show. State v. Punshon, 124 Mo. 448; State v. Liolios, 225 S.W. 941; State v. Everhart, 289 S.W. 604. (10) The State was permitted to cross-examine T.M. Stokely concerning his evidence of the coroner's inquest and to introduce the testimony of Stokely at the inquest in evidence. Defendant was not present at the inquest when the testimony was taken, did not examine or cross-examine the witness and had no opportunity to face him at the time he was giving such testimony, and the introduction of such testimony was wholly incompetent and highly prejudicial. People v. Dewitt, 206 N.W. 564; State v. Squires, 98 Pac. 413; State v. Corcoran, 61 Pac. 1034; Campbell v. State, 116 S.E. 807; People v. Scott, 129 N.E. 798; State v. Mullins, 101 Mo. 514. (11) The defendant offered to show by George Fowler, the self-confessed accomplice, that he had been promised total or partial immunity. The defendant offered to make this proof by facts and circumstances; that is to say, the carrying of the key to his room, the going to the grocery store and buying his tobacco and groceries, being at liberty on the streets, the officers taking him to Chaffee to visit his family, the bringing of his family to Benton to visit him, the keeping him at a private home in Jackson during the first trial, and many other facts and circumstances which indicated that he had been promised total or partial immunity. The court refused to admit this testimony and we submit it was error. 1 Am. Eng. Cyc. Law (2d) 399; 40 Cyc. 2511; State v. Kent, 27 L.R.A. 686, 694; State v. Ritter, 231 S.W. 606. (a) In his effort to show by facts and circumstances that Fowler had been promised immunity, the defendant asked Fowler a number of questions with the view of disclosing such facts, but the court sustained objections to the competency of the questions with the remark that the answer would shed no light, or that he did not think the question competent for that purpose. (b) On the following day the court permitted defendant to be further examined, but admonished the jury that: "You will continue to remember wherever the court sustains an objection, the jury should not consider that as evidence." The ruling of the court on the admissibility of evidence during the first day of the trial, prejudiced the jury against defendant, and the subsequent admission of such evidence did not cure the error. State v. Taylor, 118 Mo. 153; State v. Davis, 225 S.W. 707; Kribs v. Light Co., 215 S.W. 762; Rooker v. Railroad, 226 S.W. 69. (12) The verdict of the jury was a chance verdict and not its deliberate judgment. It was the result of chance and self-imposed coercion and exchange of views. The affidavits of defendant, the jurors, the deputy sheriff and the exhibit found in the jury room are conclusive proof as to the method of the jury in arriving at a verdict, and such verdicts have been uniformly held as erroneous. 27 R.C.L. 847; State v. Branstetter, 65 Mo. 149; Sawyer v. Railroad, 37 Mo. 240; State v. Linn, 223 Mo. 98.

Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent; M.E. Montgomery, James A. Finch and R.L. Ward of counsel.

(1) The indictment is sufficient, containing all the necessary allegations to charge the crime of murder. It fully informs the defendant of the charge he is required to meet, and is in a form similar to many approved by this court, and is not challenged by the appellant. Sec. 3230, R.S. 1919; State v. Bracey, 267 S.W. 809; State v. Conley, 255 Mo. 185; State v. Clay, 201 Mo. 687; State v. Privitt, 175...