State v. Tyler

• Decision Date: 13 March 1942
• Docket Number: 37545
• Citation: 159 S.W.2d 777,349 Mo. 167
• Parties: The State v. Ernest Tyler, Appellant
• Court: Missouri Supreme Court

159 S.W.2d 777

349 Mo. 167

The State v. Ernest Tyler, Appellant

No. 37545

Supreme Court of Missouri

March 13, 1942

Appeal from Jackson Circuit Court; Hon. T. J. Seehorn Judge.

Affirmed.

Roy McKittrick, Attorney General, and Arthur O'Keefe Assistant Attorney General, for respondent.

(1) The indictment in this cause is in proper form. Sec. 4376, R. S 1939; State v. Murphy, 133 S.W.2d 398; State v. Sumpter, 73 S.W.2d 760, 335 Mo. 620; State v. Ortell, 50 S.W.2d 1037; State v. Moore, 235 S.W. 1056; State v. Johnson, 26 S.W.2d 793; State v. Copeland, 335 Mo. 140, 71 S.W.2d 746; State v. White, 330 Mo. 737, 51 S.W.2d 109; State v. Brown, 112 S.W.2d 568, 342 Mo. 53; State v. Boyer, 112 S.W.2d 575, 342 Mo. 64; State v. Richetti, 119 S.W.2d 330, 342 Mo. 1015. (2) The verdict is in proper form. Sec. 4378, R. S. 1939; State v. Ortell, 50 S.W.2d 1037; State v. Jackson, 253 S.W. 734; State v. Barbata, 80 S.W.2d 865, 336 Mo. 362. (3) General assignments of error present nothing for review. State v. Kennon, 123 S.W.2d 46; State v. Langley, 116 S.W.2d 38, 342 Mo. 447; State v. Brown, 112 S.W.2d 568, 342 Mo. 53. (4) The admission of the confession was proper. State v. Thomas, 250 Mo. 189; State v. Menz, 106 S.W.2d 440; State v. Gibilterra, 116 S.W.2d 88; State v. King, 119 S.W.2d 322; State v. Christup, 85 S.W.2d 1024, 337 Mo. 776, 778. (5) The expert witnesses were qualified. 2 Wharton's Criminal Evidence, sec. 959, p. 1690, sec. 966, p. 1701, sec. 967, p. 1702; 20 Am. Jur., p. 656; State v. Long, 22 S.W.2d 809, 324 Mo. 205; 2 Wigmore on Evidence, p. 641, sec. 561; State v. Shawley, 67 S.W.2d 74, 334 Mo. 352. (6) The showing of prior convictions by the State was proper. State v. Walker, 46 S.W.2d 569; State v. Dalton, 23 S.W.2d 1; State v. Taylor, 18 S.W.2d 474, 323 Mo. 15; State v. English, 308 Mo. 695, 274 S.W. 470; 24 C. J. S., p. 1159; Allen v. Commonwealth, 114 So.2d 757, 272 Ky. 533. (7) The State sufficiently showed ownership of gun in defendant. State v. Couch, 111 S.W.2d 147, 341 Mo. 1239; State v. Hesselmeyer, 123 S.W.2d 90, 343 Mo. 797; State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168. (8) The signing of an indictment by a de facto prosecuting attorney is proper. State ex rel. City of Republic v. Smith, 139 S.W.2d 929; State ex rel. City of Clarence v. Drain, 335 Mo. 741, 73 S.W.2d 804; Sawyer v. State, 94 Fla. 60, 113 So. 736. (9) General assignment of error presents nothing for review. State v. Kennon, 123 S.W.2d 46; State v. Langley, 116 S.W.2d 38, 342 Mo. 447; State v. Brown, 112 S.W.2d 568, 342 Mo. 53. (10) Conversation among jurors not reversible error. 23 C. J. S., p. 1028, sec. 1367. (11) Assignment relating to newly discovered evidence too general. State v. Hohensee, 333 Mo. 161, 62 S.W.2d 436; State v. Rose, 96 S.W.2d 498, 339 Mo. 317; State v. Bunch, 62 S.W.2d 439, 333 Mo. 20.

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

OPINION

PER CURIAM.

Sentenced, in accord with the verdict, to suffer death for the murder of Irving Schwarzenholz, Ernest Tyler appealed. Appellant did not file a brief, and we consider the assignments in his motion for new trial.

Mr. and Mrs. Schwarzenholz resided at 2642 Lockridge, Kansas City, Missouri. About 4:00 A. M. August 16, 1940, Mrs. Schwarzenholz was of opinion she heard something in the house. She pinched her husband, awakening him, and whispered her thoughts to him. They both sat up in bed. A noise was again heard. Mr. Schwarzenholz said: "I am going to see what is in there;" and started for the light switch, about a step from the bed. Mrs. Schwarzenholz saw the form of a man in front of a window in the adjoining room. Just as the lights went on a shot was fired and a bullet pierced both of Mrs. Schwarzenholz's legs. She saw a negro, who lunged at her husband and shot him. Her husband fell. The negro looked at her and fled. Mrs. Schwarzenholz managed to call the officers. She and her husband were taken to a hospital. The lethal bullet was removed from the body of Mr. Schwarzenholz at a post mortem that morning. Other essential facts are developed in ruling the issues presented.

An assignment reads: "The court erred in admitting incompetent evidence, concerning the alleged confession, alleged to have been made by defendant, without a hearing thereon, which hearing was demanded by defendant, concerning its voluntary or involuntary nature, before the admission of the said statement in evidence." If this implies a preliminary inquiry was not had before appellant's confessions (he made two written confessions) were admitted in evidence, it is refuted by the record as the court afforded appellant an opportunity for a full hearing, outside the presence of the jury, on the voluntary or involuntary nature of the confessions and after hearing appellant's evidence on the issue admitted the confessions in evidence. Later, in the presentation of his defense, appellant again developed his contention that his statements and confessions were involuntary. The State's evidence being contra, the statements and confessions were admissible, their voluntary or involuntary nature being for the jury under proper instructions. It follows that error in admitting evidence on behalf of the State concerning the voluntary nature of appellant's statements against interest, including the voluntary nature of appellant's confessions, over objections and requests for a preliminary inquiry by appellant on their involuntary nature prior to the hearing thereon outside the presence of the jury was harmless and nonprejudicial under the instant record. State v. Menz, 341 Mo. 74, 91(V), 106 S.W.2d 440, 448 [11-13] (where after hearing evidence making the issue one for the jury at a preliminary inquiry, the court refused to hear defendant's evidence on the issue and defendant later adduced such evidence as a part of his defense); State v. Thomas, 250 Mo. 189, 209, 157 S.W. 330, 334[9]. Appellant does not and under the record could not successfully contend that the confessions were inadmissible. A safer practice for the State, under our view, would be to grant an accused's request for a preliminary inquiry, if made, upon his objecting to the admission of evidence concerning a confession on the ground the confession was involuntary and rule on the admissibility of such evidence at the first opportunity. State v. Gibilterra, 342 Mo. 577, 584, 116 S.W.2d 88, 93[2]. State v. Williamson, 339 Mo. 1038, 1048[4], 99 S.W.2d 76, 81, pointed out that to refuse an accused a preliminary inquiry and restrict him to a showing before the jury with respect to the voluntary or involuntary nature of his purported confession would violate his constitutional and statutory rights with respect to testifying (Sec. 23, Art. 2, Mo. Const.; Sec. 4081, R. S. 1939). Such rights, however, may be waived.

Appellant's complaints that the ballistics and the fingerprints experts were not qualified expert witnesses must be overruled. We find no objection of record questioning their testimonial qualifications. In fact, appellant's counsel's opening sentence on cross-examination of the fingerprints expert was: "Mr. Raney, from the testimony you have given this morning, you have qualified, I believe, sufficiently so, as an expert technician on what we call 'fingerprinting.'" Consult State v. Shawley, 334 Mo. 352, 363, 67 S.W.2d 74, 80[1]; State v. Richetti, 342 Mo. 1015, 1031[4], 119 S.W.2d 330, 338[6-8]; Evans v. Commonwealth, 230 Ky. 411, 417, 19 S.W.2d 1091, 1094; 2 Wigmore on Evidence (3 Ed.), p. 396, Sec. 417a, p. 640, Secs. 560, 561; 2 Wharton on Criminal Evidence (11 Ed.), p. 1690. Secs. 959, 967; 23 C. J. S., p. 68, Sec. 858 c, d. The State developed the training and experience of said witnesses before interrogating them concerning the case at hand.

Appellant says there was no evidence that he ever possessed the gun used in the homicide and the admission of the gun in evidence was error. This, of course, falls with the admission of appellant's confession of guilt, wherein he identified the gun. There was additional evidence bearing on the subject matter; for instance, among other facts, appellant's fingerprints were on a window from which the screen had been removed by the offender in effecting an entrance into the Schwarzenholz home, and Mrs. Schwarzenholz testified she saw the features of the offender fairly well and appellant "answers to that description."

When certain photographs of bullets (the bullet taken from the body of Mr. Schwarzenholz and a test bullet fired from the revolver used in the commission of the homicide) were offered to the jury, appellant's counsel moved for a mistrial on the stated ground two jurors were discussing the photographs. The State denied any misconduct. At the time there was no showing or offer to show improper and prejudicial conduct on the part of any juror. After the verdict counsel asked that the jury be polled and asked certain named jurors, collectively, if they had discussed certain exhibits while in the jury box. The answers were in the negative. (Consult State v. Westmoreland (Mo.), 126 S.W.2d 202, 204[13]; State v. Underwood, 57 Mo. 40, 51.) The record does not disclose reversible error. [23 C. J. S., p. 1028, Sec. 1367.]

The indictment, in addition to charging murder in the first degree, contained allegations under the habitual criminal statute (Sec. 4854, R. S. 1939, Mo. St. Ann., p. 3063, Sec 4461), which were sustained by substantial evidence. The verdict, which is questioned by appellant, read: "We, the jury, find the defendant, Ernest Tyler, at the county of Jackson and State of Missouri, was convicted and sentenced to five years in the State Penitentiary at Jefferson City, Missouri, on felony charges and that he was thereafter duly discharged from said institution upon compliance with said...