State v. Taylor

• Decision Date: 01 July 1932
• Docket Number: No. 31792.,31792.
• Citation: 51 S.W.2d 1003
• Court: Missouri Supreme Court
• Parties: THE STATE v. LONNIE TAYLOR, <I>alias</I> (LEE GUY) TAYLOR, Appellant. &#x2014

51 S.W.2d 1003

THE STATE v. LONNIE TAYLOR, alias (LEE GUY) TAYLOR, Appellant. —

No. 31792.

Supreme Court of Missouri, Division 2.

July 1, 1932.

Appeal from St. Francois Circuit Court. — Hon. I.N. Threlkeld, Special Judge.

REVERSED AND REMANDED.

Sidney R. Redmond and Henry D. Espy for appellant.

(1) The Circuit Court of St. Francois County was without jurisdiction to try this case for the reason that the Circuit Court of Ste. Genevieve County attempted to transfer it to the Circuit Court of St. Francois County at a special term of the Circuit Court of Ste. Genevieve County when the said special term was not called according to the law in such cases made and provided as neither appellant nor his agent or attorney was given previous notice of the calling of said special term. R.S. 1929, pars. 1852, 1853, 1854; R.S. 1929, pars. 2003 and 2030; State v. Webb, 74 Mo. 333; State v. Baldwin, 281 S.W. 943. (2) The Circuit Court of Ste. Genevieve County erred in overruling appellant's second petition for a change of venue, in not permitting appellant to offer evidence in support of his second petition for a change of venue, and in not allowing appellant sufficient time in which to get the signatures of residents in every county in the Twenty-seventh Judicial Circuit. R.S. 1929, par. 3630; State v. Barrington, 198 Mo. 85, 95 S.W. 255; State v. Liston, 2 S.W. (2d) 780, 318 Mo. 1222; 16 C.J. pars. 307-309; State v. Messino, 30 S.W. (2d) 750; State v. Wilcox, 44 S.W. (2d) 85; State v. Vickers, 209 Mo. 12, 106 S.W. 999. (3) The Circuit Court of St. Francois County erred in overruling appellant's amended motion for a continuance. It was in proper form, showed diligence on his part, materiality of absent testimony and reasonable expectation having absent witnesses at next term of court, and should have been sustained. R.S. 1929, pars. 3653, 3654; State v. Warden, 94 Mo. 648, 8 S.W. 233; State v. Hesterly, 182 Mo. 16, 81 S.W. 624; State v. Klinger, 43 Mo. 127; State v. Swafford, 12 S.W. (2d) 442; State v. Wade, 307 Mo. 291, 270 S.W. 298; State v. Temple, 194 Mo. 237, 92 S.W. 869. (4) The Circuit Court of St. Francois County erred in overruling appellant's motion to quash the panel for the reason that appellant is a Negro and qualified negro residents of St. Francois County were intentionally kept off of the jury panel in this case solely because of their color. The tender of proof conclusively showed these facts. State v. Warner, 165 Mo. 399, 65 S.W. 584; State ex rel. Passer v. County Board, 213 N.W. 545, 52 A.L.R. 916; Carter v. Texas, 177 U.S. 442, 44 L. Ed. 839; Neal v. Delaware, 103 U.S. 370, 26 L. Ed. 567; Rogers v. Alabama, 192 U.S. 226, 48 L. Ed. 417; Green v. State, 73 Ala. 26; Montgomery v. State, 55 Fla. 97, 45 So. 879; Miller v. Commonwealth, 127 Ky. 387, 105 S.W. 899; Farrow v. State, 91 Miss. 509, 45 So. 619; Smith v. State, 4 Okla. Cr. Rep. 328, 111 Pac. 960; Smith v. State, 45 Tex. Cr. Rep. 405, 77 S.W. 453; 35 C.J. 262, 263. (5) The Circuit Court of St. Francois County erred when the trial judge, in the presence of the jury, said: "The witness has made the connection between the two Ritters." State v. Harmon, 296 S.W. 391; State v. Taylor, 274 S.W. 47; State v. Brown, 290 Mo. 177, 234 S.W. 785; State v. Blackmore, 38 S.W. (2d) 32. (6) The Circuit Court of St. Francois County erred in permitting the four X-ray pictures to be introduced in evidence. State v. Baldwin, 297 S.W. 10. (7) The Circuit Court of St. Francois County erred in permitting Captain John J. Carroll to testify as to a purported dying declaration of Paul Ritter for the reason that said statement was not made in contemplation of death and was partly narration. State v. Simon, 50 Mo. 370; 3 Wigmore on Evidence, pars. 1440, 1443; State v. Wilks, 213 S.W. 118, 278 Mo. 481; State v. Barnes, 204 S.W. 264; State v. Clift, 285 S.W. 706; State v. Wilson, 121 Mo. 434, 26 S.W. 357; State v. Lovell, 235 Mo. 343, 138 S.W. 523. (8) The circuit court erred in admitting the testimony of R.J. Duggan, relating to a question and answer conversation he had with the deceased, for the reason that statements made to him by Paul Ritter were not part of the res gestae as they were not spontaneous and were made too long after the commission of the alleged crime. They were a narrative of past events. State v. Rider, 90 Mo. 54, 1 S.W. 825; State v. Walker, 78 Mo. 380; State v. Kaiser, 124 Mo. 651, 28 S.W. 182; State v. Seward, 247 S.W. 150; 10 R.C.L. 974-976; Rogers v. State, 88 Ark. 451, 114 S.W. 156, 41 L.R.A. (N.S.) 857; State v. Hart, 274 S.W. 385; State v. Berks, 199 Mo. 263, 97 S.W. par. 78; State v. Hayes, 247 S.W. 165; State v. Martin, 28 S.W. 12. (9) The circuit court erred in refusing to grant appellant's motion for a mistrial when Sheriff Zeigler testified that while transferring appellant from Ste. Genevieve County to St. Francois County, appellant told him that if he, the said Zeigler, would carry him back to Ste. Genevieve County he would plead guilty. State v. Lasson, 234 S.W. 101, l.c. 104, 292 Mo. 155 l.c. 168; State v. Baldwin, 297 S.W. l.c. 19; State v. Horton, 153 S.W. 1051, 247 Mo. 657. (10) The circuit court erred in refusing to discharge the jury and declare a mistrial when Mr. H.C. Smith, prosecuting attorney, in the course of his argument to the jury, after recommending the death penalty, said: "Gentlemen of the jury, you know that my recommendations in all cases are fair and that I would not advise you wrongly." State v. Campbell, 278 S.W. 1051; State v. Nicholson, 7 S.W. (2d) 375; State v. Baldwin, 297 S.W. 10. (11) The circuit court erred in refusing to discharge the jury and declare a mistrial when Mr. Don Purteet, Assistant Attorney-General, in his argument to the jury, said: "Gentlemen of the jury, the eyes of this community are upon you, and if you do not bring in the death penalty, the mob will do its duty." State v. Campbell, 278 S.W. 1051; State v. Nicholson, 7 S.W. (2d) 375; State v. Connor, 252 S.W. 713; State v. Dison, 253 S.W. 745; State v. Baldwin, 279 S.W. 19. (12) The information does not charge appellant with "premeditatedly" killing deceased and therefore does not charge murder in the first degree. Instruction 1 is based on first degree murder and should not have been given. R.S. 1929, par. 3982, and annotations; State v. Fox, 300 S.W. 820; State v. Sharp, 71 Mo. 218; State v. Young, 286 S.W. 29. (13) Instruction 5 should not have been given for there was no competent evidence to the effect that appellant sought or brought on the fight.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent; Harry O. Smith and Peter H. Huck of counsel.

(1) The trial court quite properly overruled appellant's motion challenging the jurisdiction of the trial court of St. Francois County. Circuit courts possess jurisdiction of all cases involving prosecution for felony. Sec. 3501, R.S. 1929; State ex rel. v. Ryan, 38 S.W. (2d) 717. The circuit court of any county in a judicial circuit possesses jurisdiction of all felony cases transferred on change of venue from another county within said circuit. Secs. 3626, 3631, R.S. 1929; State ex rel. Judah v. Fort, 210 Mo. 512; State ex rel. Wolfner v. Harris, 312 Mo. 212. Circuit courts speak through their records which are evidence of their official acts. Sec. 1836, R.S. 1929; Cunio v. Franklin County, 315 Mo. 405. The record cannot be impeached except by evidence of equal dignity with the record. The record in this case spoke for itself, and, of course, could not disprove itself. Williams v. Monroe, 125 Mo. 574; Strobel v. Clark, 128 Mo. App. 56. The presumption of regularity and correctness applies to a record entered by the clerk, and such record cannot be collaterally attacked and impeached by extraneous evidence. 22 C.J. 129; State v. Taylor, supra, and cases cited. Furthermore, an adjourned term of a regular term of circuit court is not a special term but is a continuation of the regular term, and is a part thereof. Sec. 1851, R.S. 1929. Adjourned terms of a regular term may be held at the pleasure of the court. Dulle v. Deimler, 28 Mo. 585; State v. Barnes, 20 Mo. 413; State v. Connell, 49 Mo. 286; State v. Butler, 118 Mo. App. 590; State v. Harris, 59 Mo. 550; Nickey v. Leader, 235 Mo. 30. (2) The Circuit Court of St. Francois County committed no error in overruling appellant's amended motion for a continuance. The granting of a continuance is within the sound discretion of the trial court. The record shows no abuse of discretion. State v. Henson, 290 Mo. 245; State v. Taylor, 8 S.W. (2d) 29; State v. Salts, 263 Mo. 304; State v. Parker, 106 Mo. 217; State v. Webster, 152 Mo. 87; State v. Hesterly, 182 Mo. 16; State v. Cain, 247 Mo. 700; State v. Stroud, 275 S.W. 58. (3) The trial court committed no error in admitting the dying declaration of the deceased, Paul Ritter. The witness, Captain John J. Carroll, was qualified to testify to the dying declaration. Deceased's statements were related to the witness in contemplation of imminent dissolution. The competency and admissibility of a purported dying declaration is a question of law to be determined by the court, preferably out of the presence of the jury. Such course of procedure was followed in this case. State v. Simon, 50 Mo. 374; State v. Zorn, 202 Mo. 34; State v. Crone, 209 Mo. 328; State v. Gore, 237 S.W. 999; State v. Finley, 245 Mo. 474; State v. Hostetter, 222 S.W. 752; State v. Anderson, 34 S.W. (2d) 26; State v. Clift, 285 S.W. 708. (4) The fact that the trial court allowed the evidence of the declaration to be admitted in the presence of the jury, after having heard evidence of the admissibility out of the presence of the jury, is equivalent to an affirmative ruling by the court that such declaration is admissible. In this case the court directly ruled that the declaration was admissible. State v. Crone, 209 Mo. 327; State v. Anderson, 34 S.W. (2d) 26. If it satisfactorily appears in...