State v. Taylor

• Decision Date: 12 March 1941
• Docket Number: 37370
• Citation: 148 S.W.2d 802,347 Mo. 607
• Parties: The State v. Floyd Taylor, Appellant
• Court: Missouri Supreme Court

148 S.W.2d 802

347 Mo. 607

The State v. Floyd Taylor, Appellant

No. 37370

Supreme Court of Missouri

March 12, 1941

Appeal from Ozark Circuit Court; Hon. Emory E. Smith Judge.

Affirmed.

Roy McKittrick, Attorney General, and Olliver W Nolen, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and in substance. An allegation that murder was committed by some means instruments and weapons unknown is sufficient to charge murder in the first degree. State v. Poor, 228 S.W. 810, 286 Mo. 644; State v. Lloyd, 87 S.W.2d 418, 337 Mo. 997. (2) The verdict is in regular form and specifies the degree as required by the statute. State v. Goodwin, 61 S.W.2d 960, 333 Mo. 168; State v. Cropper, 36 S.W.2d 923, 327 Mo. 193. (3) Instructions 2 and 4 given by the court properly declared the law covering the facts in the case. The court did not err in refusing defendant's Instruction E. State v. Morefield, 119 S.W.2d 315, 342 Mo. 1059; State v. White, 51 S.W.2d 109, 330 Mo. 737; State v. Messino, 30 S.W.2d 750, 325 Mo. 743; State v. McGinnis, 158 Mo. 105, 59 S.W. 83; State v. Murray, 193 S.W. 830. (4) The jurors, Jessie Preston, Noel McCall and Sanford Honeycutt, showed proper qualifications on the panel of thirty. State v. Kauffman, 73 S.W.2d 217, 325 Mo. 616; State v. Poor, 228 S.W. 810, 286 Mo. 644; State v. McCracken, 108 S.W.2d 372. (5) The court did not err in failing on his own motion to give an instruction in murder in the second degree. State v. Page, 130 S.W.2d 520; State v. McCracken, 108 S.W.2d 372. (6) The deputy sheriff, Frank Mahan, was not disqualified from performing the duties of the sheriff during the trial. State v. McDonald, 119 S.W.2d 286, 342 Mo. 998; State v. Young, 286 S.W. 29, 314 Mo. 612. (7) The evidence was sufficient to sustain the verdict of the jury. Allegations of bias and prejudice of the jury and of inhabitants in the motion for new trial do not prove themselves. State v. Concelia, 157 S.W. 788, 250 Mo. 411; State v. Poor, 228 S.W. 810, 286 Mo. 644; State v. Hancock, 340 Mo. 911, 104 S.W.2d 923; State v. Harris, 22 S.W.2d 802, 324 Mo. 223; State v. Dickson, 78 Mo. 438; State v. Lay, 61 S.W.2d 738.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant, Floyd (Buoy) Taylor, and his brother Ralph were charged by an information filed in the Circuit Court of Ozark County with the murder of Palmer Gilliland. Appellant was found guilty of murder in the first degree and sentenced to imprisonment in the penitentiary for the term of his natural life. From this sentence he appealed. At the close of all the evidence the trial court directed a verdict of acquittal as to the defendant Ralph Taylor. This was the third trial of the case. In the two previous trials the jurors were unable to agree upon a verdict.

Appellant has not filed a brief in this court. By his motion for new trial appellant preserved a number of questions for our review. A motion was filed by appellant to disqualify the sheriff and his deputies in selecting the venire of jurors. The trial court granted the motion as to the sheriff but overruled it as to the deputies and designated one of the deputies to select the venire. This action of the trial court was assigned as error. Appellant argues that the deputies were under the dominion and influence of the sheriff. From the record we are unable to ascertain any fact which disqualified the sheriff. True, the evidence disclosed that he took an active interest in the investigation of the case and was a material witness for the State. In view of this the trial court, out of an abundance of caution, sustained appellant's motion. That the sheriff took an active part in investigating the case did not disqualify him, as that was his sworn duty. The ruling of the trial court was not prejudicial to the rights of appellant. [See State v. McDonald, 342 Mo. 998, 119 S.W.2d 286, l. c. 288 (2, 3).]

When the jury was being selected the trial court granted a number of challenges for cause and refused others. The refusal to sustain a number of challenges was assigned as error. There was naturally much notoriety throughout the county with reference to the disappearance of Gilliland and the finding of his body. It would have been difficult indeed to have selected a jury of men who had not heard something about the occurrence. The record disclosed that the trial court in this case permitted full inquiry to ascertain whether any of the prospective jurors were prejudiced in any way against appellant. The jurors named in the motion were examined, and while their evidence disclosed that they had heard the case discussed, it did not disclose that they had expressed any opinion as to the guilt of appellant. As shown by their evidence they were qualified jurors. The point is ruled against appellant. [State v. McCracken, 341 Mo. 697, 108 S.W.2d 372, l. c. 373 (1) and cases there cited.]

Appellant contended the evidence was insufficient to sustain the verdict. Since the evidence was all circumstantial we will state the facts proven by the State in detail. Deceased Palmer Gilliland, was unmarried. He at times lived alone and at other times had a family living in his home with him. He owned much livestock and about fifteen hundred acres of land in the northwest portion of Ozark County. The defendant, Ralph Taylor, lived on a farm owned by his father. On May 5, 1937, appellant, Floyd Taylor, went to the home of Gilliland on the pretext of purchasing some cattle. He spent the day with Gilliland driving about and looking at the livestock. That night Gilliland stayed at the home of appellant and the next morning they were seen together at appellant's home. A witness testified that he saw Gilliland sitting in appellant's car tieing his shoestrings; that he, the witness, was looking for his cows and rode on the running-board of appellant's car, which appellant was driving; that he went with them for a short distance to a point where he found his cows; that this was a short distance from the home of Ralph Taylor. This witness also testified that when he approached the car Gilliland said: "Come and go with me. Buoy is going to take me home. He will be back in a little bit." This was early on the morning of May 6. A short time later two of the State's witnesses passed the home of Ralph Taylor. They testified they saw appellant and Ralph in a car coming through the pasture near the house; that they stopped and one of them got an ax and returned to the car and thereafter they drove back toward the pasture and went in the general direction of where later the body of Gilliland was found. One of these witnesses testified that he later, at about 9:00 A. M., saw appellant and Ralph driving through Almartha toward Gainsville. About 10:00 A. M. appellant and Ralph were seen in a restaurant and drinking establishment, owned by one Shaw, in Gainsville. Two witnesses testified that while in the restaurant they heard appellant state that he had purchased a team of horses and some fine cattle from Palmer Gilliland; that Gilliland was leaving the country; that he had taken Gilliland to highway number five and that Gilliland had said he was going to Arizona and then to California, that he was selling out. These witnesses testified that appellant concluded his remarks with reference to Gilliland in substance as follows: "Just between us, I believe Gilliland is through with this country. I don't believe he will ever be back here." Gilliland was not seen alive by anyone after the early morning of May 6, when he was with appellant. To understand the evidence next in sequence it is necessary to state when and where the body of Gilliland was found. On June 10, 1937, a posse of about fifty men was formed for the purpose of searching for Gilliland. Members of this posse found the body on the farm occupied by Ralph Taylor, about one-fourth mile from the house in a depression surrounded by woods and brush. A pile of brush about four feet in height was found on the body, and on top of this brush pile was the carcass of a dog. Note here that Gilliland was last seen with Floyd Taylor near the Ralph Taylor place on the morning of May 6. On the following Tuesday witness Dewey Cook was tending to his corn in a field near the place where the body was found. Floyd Taylor came to him and said he was looking after some cattle he had bought. In the course of that conversation, according to the evidence of Cook, Floyd suggested that a dog owned by Cook, which was tied to a wagon in the field, should be killed because it was subject to "fits" and might be "mad." Cook agreed, and thereupon Floyd left saying he would get a gun and kill the dog. He returned in a short time, killed the dog and drug it to a fence at a point which was about one hundred and fifty yards from where, on June 10, the body of Gilliland was found. This was the dog found on the brush pile. Cook testified that Floyd climbed over the fence after he had pitched the dog over and was gone about fifteen minutes; that he could not see him beyond the fence because of the woods and brush. Appellant, while testifying as a witness, admitted killing the dog and throwing it over the fence, but claimed that he left it there and also that he killed the dog at Cook's suggestion. The following day appellant again came to Cook in the corn field. At this time he was riding a horse and had an ax. Cook testified that appellant said he was going to cut some brush in the bottom; that appellant left, but returned in a couple of hours and stated it was too hot to cut brush "and his hands was bloody; a little bit of scratches on his hands." The State also introduced evidence that the body was first covered with small brush and then larger brush piled on; that the smaller brush next...