State v. Thompson

• Citation: 92 S.W.2d 892,338 Mo. 897
• Decision Date: 21 March 1936
• Docket Number: 34542
• Parties: The State v. George C. Thompson, Appellant
• Court: Missouri Supreme Court

92 S.W.2d 892

338 Mo. 897

The State v. George C. Thompson, Appellant

No. 34542

Supreme Court of Missouri

March 21, 1936

Appeal from Miller Circuit Court; Hon. W. M. Dinwiddie Special Judge.

Affirmed.

H M. Atwell for appellant.

Roy McKittrick, Attorney General, and Frank W Hayes, Assistant Attorney General, for respondent.

(1) General assignment of error No. 7 in appellant's motion for new trial is insufficient. Sec. 3735, R. S. 1929; State v. Shawley, 67 S.W.2d 74; State v. Eason, 18 S.W.2d 71; State v. Vigus, 66 S.W.2d 854. (2) The court did not err in overruling appellant's motion to quash the search warrant and suppress the evidence. Sec. 3769, R. S. 1929; State v. Wright, 77 S.W.2d 463; State v. Shelton, 284 S.W. 433; State v. Cox, 18 S.W.2d 58. (3) The court did not err in permitting evidence to be introduced on the information. State v. Stogsdill, 23 S.W.2d 22; State v. Williams, 71 S.W.2d 732; State v. Schnettler, 181 Mo. 173. (4) The court did not err in permitting certain articles of personal property to be in the courtroom prior to being offered in evidence. (5) The court did not err in admitting the testimony of Sheriff King, as to the finding of a No. 410 shot gun in the home of the appellant. State v. Barbata, 80 S.W.2d 865; State v. Buckner, 80 S.W.2d 167. (6) The court did not err in giving an instruction on second degree murder. State v. Bell, 136 Mo. 120; State v. Glahn, 97 Mo. 963; State v. Ellis, 74 Mo. 221. (7) The court did not err as to ruling on the argument of assistant prosecuting attorney, Reed. State v. Maness, 19 S.W.2d 628; State v. Williams, 71 S.W.2d 732; State v. Clark, 33 S.W.2d 890. (8) The court did not err in permitting the introduction in evidence of a copy of a chattel mortgage. State v. Higgins, 12 S.W.2d 61; State v. Myer, 259 Mo. 306. (9) The court did not err in ruling as to the impeaching of witness Roy Thacker. State v. Aurentz, 236 S.W. 178; State v. Dinkelkamp, 207 S.W. 770. (10) The court did not err in the admission of the testimony of witness Witt. State v. Barbata, 80 S.W.2d 865; State v. Buckner, 80 S.W.2d 167. (11) The court did not err in the enforcement of the rule as to witnesses. State v. Compton, 296 S.W. 137; State v. Tummons, 34 S.W.2d 123.

OPINION

Tipton, P. J.

This is an appeal from a judgment rendered in the Circuit Court of Miller County, Missouri, where the appellant was convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for his natural life. He was charged with having murdered Charles T. Babcoke.

The evidence tended to show that Charles T. Babcoke lived on a forty-acre farm south of Eldon, in Miller County, Missouri. The appellant lived in the same neighborhood. The last date upon which the deceased was seen alive was March 19, 1933, and he was then seen by John M. Bowen. This witness went to deceased's home on March 26, 1933, as deceased was missed from church. He found no one at home and the house was locked. He again went to the deceased's farm on April 15, 1933, and found the appellant there. The deceased was an active church worker, and his absence from the church services and from the Eldon Workers' Conference on the first Monday in April, 1933, aroused suspicion of his relatives and friends. Between the middle of April and the first of May, 1933, A. E. Vernon, Mrs. A. E. Vernon and Mrs. Simpson, went to appellant's farm and there met the appellant. Mrs. Vernon and Mrs. Simpson were sisters of the deceased. These parties found the appellant in possession of the personal property of the deceased, and he accounted for his possession by stating that he had bought the cattle and had leased the farm from the deceased. Appellant stated to these relatives that the deceased was learning to be a traveling salesman in Oklahoma and the deceased had stayed at the farm the previous Saturday night. He also stated that there was a person who came to the deceased's farm every few days in a big car. The appellant claimed to have a written contract with the deceased regarding the sale of the personal property. A few days later A. E. Vernon and several members of the grand jury went to the home of the appellant and asked him to go to Eldon with them and show them the contract. This the appellant refused to do, claiming he was ill. These men went to the bank and found no contract, then they went back to see the appellant and inquired again about the contract and the appellant then told them it was verbal.

About May 1, 1933, an investigation was started and the body of Charles T. Babcoke was found buried on his farm in a shallow grave. The coroner made an examination of the body and found that a penetrating wound caused by a gun shot to the right or median line at the base of the skull caused his death. This shot had fractured the first vertebra. He was of the opinion that the wound was caused by a 38-caliber revolver, or a 410-shot gun at close range, and that the deceased died from the gun shot wound. A 410-shot gun was found at the appellant's home. The testimony showed that the appellant was seen wearing clothes that belonged to the deceased between the time the deceased was last seen and his body was found. The appellant had in his possession the deceased's chickens, watch, overcoat and silverware.

In a replevin suit the deceased's wife recovered these articles of personal property and deceased's live stock. For several years before the death of deceased, she had lived in Kansas City, but the testimony was that this was due to financial difficulties and not to any estrangement between her and the deceased. The appellant has not favored us with a brief.

I. The appellant's first assignment of error is that: "The Court erred in overruling defendant's motion to quash the search warrant and suppress the evidence." His seventh assignment of error is that: "The Court erred in permitting the cross-examination of the defendant numerous questions and facts to which defendant had not testified to in chief, all over the objections of the defendant." Section 3735, Revised Statutes 1929, requires that the motion for a new trial "must set forth in detail and with particularity in separate numbered paragraphs, the specific grounds or causes therefor." The above assignments of error fail to comply with this section, and therefore there is nothing for us to review.

II. Appellant's assignment No. 2, of his motion for a new trial alleges that the court erred in admitting evidence in the cause on the ground that the information was based in a preliminary hearing which had been had upon a complaint made by Arthur E. Vernon, who was not a competent witness and did not know facts sufficient to make the complaint. Assuming that appellant's point is well taken, he has waived it because he did not file a motion to quash the information and went to trial on the information without any objection. [State v. Schnettler, 181 Mo. 173, 79 S.W. 1123.]

III. The appellant's assignments numbers 3 and 4, of his motion for a new trial, allege that the court erred in permitting the State to display before the jury certain articles of clothing and silverware to his prejudice. The objection was made when Mrs. A. E. Vernon was called as a witness. In passing on the objection the trial court stated that "Under the objection as to the display of this clothing, let the record show that the clothing is not being displayed to the jury but brought into the room for identification." The witness identified these articles as being the property of her deceased brother. The identification of these articles was a matter to be handled in the discretion of the trial court, and there is nothing in the record to show that he abused his discretion.

IV. The appellant's fifth complaint is that the court erred in permitting the sheriff to testify as to finding a 410-shot gun in the home of the appellant as he was making a search in compliance with the search warrant when the appellant was in jail. No objection or motion to strike was made to this testimony, and therefore, there is nothing before us to review. [State v. Buckner, 80 S.W.2d 167.]

...