State v. White

• Decision Date: 10 June 1932
• Docket Number: 31394
• Citation: 51 S.W.2d 109,330 Mo. 737
• Parties: The State v. Emerson White, Appellant
• Court: Missouri Supreme Court

51 S.W.2d 109

330 Mo. 737

The State v. Emerson White, Appellant

No. 31394

Supreme Court of Missouri

June 10, 1932

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

Freeman L. Martin for appellant.

(1) The court erred in permitting the assistant circuit attorney over the objections of the defendant, to cross-examine the defendant at great length concerning the details of a former conviction for a violation of the "Dyer Act," in the State of Illinois as to the details, the amount of time served, the kind of automobile taken, the time he was in jail awaiting trial, the time when he was released from custody the names of the other parties jointly charged with him, and whether or not he was represented by counsel and a great many other things, when the said defendant had admitted on direct examination the said former conviction, date, time served and for what purpose. State v. Nicholson, 7 S.W.2d 375; State v. Staats, 296 Mo. 43; State v Kelly, 284 S.W. 801; State v. Keller, 281 S.W. 960. (2) The court erred in permitting the assistant circuit attorney to give his personal opinion of the guilt of the defendant which remarks were made in his closing argument to the jury and were objected to at the time by the defendant; and the court refused to admonish the jury to disregard said remarks after requested so to do by the defendant.

Remarks of Prosecuting Attorney. "Now, is a person of that type and caliber entitled to any sympathy at all? Is he not only guilty of murder in the first degree, but guilty of absolute brutality? When the time comes, Gentlemen of the Jury. . . ." It is not proper for the prosecutor in his argument to tell the jury that he believes the defendant guilty. State v. Smith, 313 Mo. 71; State v. Midkiff, 278 S.W. 681; State v. Hance, 256 S.W. 534; State v. Hart, 292 Mo. 74; State v. Cole, 252 S.W. 698. (3) The court erred in permitting the assistant circuit attorney to say to the jury in his opening argument what the law was as applied to the evidence in the case by telling the jury there was no evidence in this case to warrant the court's instructions as to murder in the second degree and manslaughter over the objections of the defendant as being improper remarks and misconduct as counsel for the State. State v. Webb, 254 Mo. 414; State v. Hess, 240 Mo. 147; State v. Phillips. 233 Mo. 299; State v. Thavanot, 225 Mo. 545; State v. Zorn, 202 Mo. 12; State v. Young, 105 Mo. 634; State v. Jackson, 95 Mo. 623; State v. Cook, 132 Mo.App. 167; State v. Upton, 130 Mo.App. 316.

Stratton Shartel, Attorney-General, and Denton Dunn, Assistant Attorney-General, for respondent.

(1) There was substantial evidence to support the verdict, and ample circumstantial evidence to prove the corpus delicti, independent of the defendant's confession. State v. Kauffman, 46 S.W.2d 848; State v. Henke, 313 Mo. 627, 285 S.W. 392; State v. Harris, 22 S.W.2d 802; State v. Sinovich, 46 S.W.2d 881. (2) The second ground of the motion for new trial that "the verdict is against the law, as declared in the instructions given by the court," is not sufficiently specific to raise any point on appeal. Sec. 3735, R. S. 1929, and citations thereunder. (3) The third ground of the motion for new trial objecting to given Instruction 8, "as being misleading, confusing and prejudicial to the defendant," is also too general and raises no specific ground of objection as required by statute. Sec. 3735, R. S. 1929, and citations thereunder. State v. Pepe, 46 S.W.2d 865; State v. Fisher, 46 S.W.2d 556. (4) The testimony that defendant pledged a watch taken by him from the deceased at the time of the killing was admissible, although the indictment did not charge murder committed in the perpetration of another felony, because it may be charged to have been "deliberately" done and the deliberation proved by showing it to have been committed during a robbery. State v. Peak, 237 S.W. 466; State v. Nasello, 30 S.W.2d 136; State v. Messino, 30 S.W.2d 750; State v. Carroll and Jocoy, 288 Mo. 408. (5) This point of the motion for new trial referring to the clothes taken is the same as No. IV. (6) The record shows that the protograph and negative were offered and admitted in evidence. (7) The defendant's suitcase, in which the deceased's clothes were found at defendant's house in his possession within four days of the killing, was admissible as part of the chain of circumstances, even though the contents were more material. (8) The defendant himself proved his former conviction under the Dyer Act, and sought by his direct testimony to explain, mitigate or exculpate his part therein, and thereby referred to the matter in his examination-in-chief, so as to subject himself to cross-examination thereon. Section 3692, R. S. 1929, and citations thereunder; State v. Keener, 225 Mo. 500. (9) The assistant circuit attorney did not give his personal opinion of the guilt of defendant farther than it might be implied from his proper argument on the evidence, which is unavoidable. Appellant's brief's quotation show argument merely. State v. Sinovich, 46 S.W.2d 881.

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

OPINION

FITZSIMMONS

Appellant was charged by indictment in the city of St. Louis with murder in the first degree by killing one Pinckney Hollis by means of blows with a hatchet on the head. Upon trial appellant was found guilty as charged and his punishment was fixed at death. From the sentence and judgment he has appealed.

Pinckney Hollis was about seventy years old, and was a man of color. Appellant, Emerson White, is about twenty-nine years old and also is of color. The killing occurred on January 1, 1930, in a one-room house in the rear of 2641 Pine Street, St. Louis, where Hollis lived alone. Appellant White, formerly lived at 2643 Pine Street, next door to Hollis, but when Hollis was killed, White was a janitor in a west end home in the basement of which he slept. Marshall Gaitor, living next door at 2639 Pine Street, a man of the same age as Hollis, had known Hollis for six years, and the two old men visited each other frequently. Gaitor saw Hollis every day in December, 1929, in the last three weeks of which Hollis was sick and in bed half the time. On January 3, 1930, Gaitor went to Hollis' room and knocked. There was no response. The door was locked and, so, Gaitor called a policeman who picked the lock, and entered the room. Pinckney Hollis lay dead upon the floor. Wounds estimated by the policeman at fifteen or twenty, were upon the head of the dead man. Beside the body lay a bloody hatchet, broken milk bottles, a bent poker and a bank deposit book in the name of Hollis. The pockets of the clothes of the dead man had been turned. The contents of a trunk were scattered about. The hasp of the trunk lid had been torn off and the lid forced open. The drawers of a wash-stand had been pulled out and were empty. The mattress and covers of Hollis' bed had been rolled and pushed aside. A piece of a watch chain hung from the dead man's suspenders but no watch was found. Clothes were strewn here and there. The place was in complete disorder. The coroner performed an autopsy on the body of Hollis and found on the head twelve wounds from one inch to two inches long. Two of the wounds extended through the skull and into the brain with no radiating fractures, showing, in the opinion of the coroner's surgeon, that the wounds had been made with a sharp instrument. Appellant White, testifying in his own behalf, said that, in self-defense he struck Hollis on the head only twice and with the hammer end of the hatchet. Although the body was not found until about 6:30 P. M., January 3, 1930, the time of the death was fixed at January 1, by a written statement of appellant.

The St. Louis police arrested appellant in the basement of the home where he attended to the furnace late in the night of the discovery of the body of Hollis. Several witnesses, all of appellant's own race, testified that he had been hanging about the Pine Street neighborhood where Hollis lived all winter. Appellant wore ragged overalls that winter, but he was appareled in a brown checked suit and a gabardine coat when he went to a Pine Street wake on January 2, and to the funeral the next day. The brown checked suit and coat were identified by several as having been the property of Pinckney Hollis for five or six years. The suit was a familiar sight in the community and the wearing of it by appellant caused much comment at the funeral. Leon Murphy, who rode in a funeral car with appellant, looked at him dressed up, instead of in ragged overalls and observed: "It looks like I know that suit," and appellant answered: "I bought it off a fellow." On the night of the wake at 2612 Pine Street, appellant sold to John Rodgers for a dollar a certain open-faced watch, which at the trial was identified by several as having belonged to Hollis. Leon Murphy was present at the negotiations between appellant and Rodgers for the sale of the watch. Murphy had seen the watch before, as it had passed from one colored owner to another, then to a pawnshop and finally to Hollis. So, in the conversation preceding the sale of the watch Murphy said to Rodgers and to appellant: "I said it didn't look good to me that watch with the chain broke. It looked like it had been snatched and the defendant said it was his."

The body of Hollis had not been found nor was the fact of his death known when appellant sold the watch to Rodgers and wore the brown suit and the gabardine coat to the funeral. When the death was discovered tongues began to wag. Appellant when arrested, stated that he knew nothing about the death of Hollis. But two city detectives, colored men like appellant, went into the...