State v. Wolff

• Decision Date: 05 November 1935
• Citation: 87 S.W.2d 436,337 Mo. 1007
• Parties: The State v. Byron Wolff, alias Jerry Wolff, Appellant
• Court: Missouri Supreme Court

87 S.W.2d 436

337 Mo. 1007

The State v. Byron Wolff, alias Jerry Wolff, Appellant

Supreme Court of Missouri

November 5, 1935

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Reversed and remanded.

Loyd E. Roberts and Russell Mallett for appellant Julius Meyerhardt of counsel.

(1) Where the State relies wholly on circumstantial evidence, the circumstances, to warrant a conviction, must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of defendant's guilt but must be inconsistent with every other reasonable hypothesis, including the hypothesis of his innocence, and if the facts are as consistent with his innocence, defendant must be acquitted. Measured by this rule, the evidence in this case, viewed most favorably, did no more than raise a slight suspicion of defendant's guilt. State v. McMurphy, 324 Mo. 854, 25 S.W.2d 79; State v. Tracy, 284 Mo. 619; State v. Buckley, 309 Mo. 38, 274 S.W. 74; State v. Nagle, 326 Mo. 661, 32 S.W.2d 596; State v. Pritchett, 327 Mo. 1143, 39 S.W.2d 794; State v. Archer, 6 S.W.2d 912; State v. Eklof, 321 Mo. 548, 11 S.W.2d 1033; State v. Ruckman, 253 Mo. 487, 161 S.W. 705; State v. Scott, 177 Mo. 665, 76 S.W. 950. (2) References to and testimony concerning an intention to commit a distinct and separate crime, although the crime was never committed, is improper and inadmissible. State v. Hurnden, 2 S.W.2d 145; State v. Buxton, 324 Mo. 78, 22 S.W.2d 635; State v. Goetz, 34 Mo. 85; State v. Hyde, 234 Mo. 200, 136 S.W. 316.

Roy McKittrick, Attorney General, and W. W. Barnes, Assistant Attorney General, for respondent.

(1) The evidence though circumstantial, is sufficient to sustain the verdict. State v. Schaeffer, 273 S.W. 249; State v. Harris, 324 Mo. 232; State v. Henke, 313 Mo. 626; State v. Janes, 318 Mo. 530. (2) These assignments, and each of them, are too indefinite and general to present anything for review in this court. State v. Shuls, 44 S.W.2d 97; State v. Gillman, 44 S.W.2d 148; State v. Shawley, 67 S.W.2d 86. (3) This assignment is not well taken in point of fact. State v. Sanders, 106 Mo. 195; State v. Bell, 166 Mo. 109. (4) The entire conversation of defendant with the sheriff at the jail after defendant's arrest is admissible in evidence. State v. Hardin, 324 Mo. 36; State v. Lovell, 234 Mo. 355; State v. Ware, 62 Mo. 601. (5) The evidence here complained of was properly admitted. State v. Pine, 57 S.W.2d 1089; State v. Bunch, 62 S.W.2d 442; State v. Potts, 239 Mo. 411.

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

OPINION

COOLEY

By information filed in the Circuit Court of Jasper County this defendant and five others, Ledrew B. Harmon Charles Napper, Victor Earl Powell, William B. Moors and Glenn Harmon, were charged with murder in the first degree for the alleged killing of Brooks L. Van Hoose, whom for convenience we may refer to as the deceased. Defendant was convicted and sentenced, in accordance with the verdict, to life imprisonment and has appealed. The principal question presented by the appeal is whether or not there is sufficient evidence to sustain the conviction. This necessitates a more complete resume of the evidence than would otherwise be necessary. The State's evidence tends to prove the following:

Mr. Van Hoose lived alone, in the country, about five miles southwest of Carthage, Missouri. His residence was on a plot of ground some two hundred feet square. Along the north side of the premises there is a street car track running east and west, and immediately north of and parallel with that track there is a graveled highway called the Morgan Heights Road. Intersecting that road there is a north and south graveled road on the west side of the Van Hoose premises. About a mile north of said premises the north and south road joins paved highways 71 and 66, which are there coincident. At the time in question Ledrew B. Harmon, referred to in the evidence as L. B. Harmon, owned property located adjacent to the said north and south road north of the Van Hoose residence and between it and the junction of that road with highways 71 and 66. Its exact location is not clearly shown but it appears to be nearer to said junction than the Van Hoose residence. It appears, however, that Harmon was not then living at said place but was living in Carthage.

On the west side of the Van Hoose house there is a semicircular driveway from and back to said north and south road, passing close to the house and under a "portico" -- porte-cochere -- which extends from the house above the entrance door on that side. That door opens into a hall or "vestibule" about six feet long east and west and about four feet wide, from the north side of which there is an opening, without a door, into a large room extending the length of the house on the north side, spoken of as the north room. Deceased's body was found in that room.

Deceased was last seen alive about six o'clock P. M. March 3, 1934 (a Saturday), when he left his office in Carthage. His automobile, however, presumably with him in it, was seen driving up to his residence at about seven o'clock that evening. Whether it had more than one occupant is not shown.

About noon the next day a Mr. Murray went to deceased's home to return a borrowed trailer. The house was closed and Murray was unable to arouse anyone. At that time deceased's automobile was standing, facing south, under the "portico" and immediately in front of the west door. Murray noticed a hole, later discovered to be a bullet hole, in the left door -- that next to the house. The following morning, Monday, March 5th, Murray was driving by the Van Hoose house, and, seeing the automobile still in the same place, he stopped, went to the door and called. Getting no response and being unable to open the door, he proceeded to Carthage and notified friends of deceased, who went to the house. The outer doors were found locked. The west door was fitted with a lock which, when the door closed, locked the door automatically to a person seeking to enter from the outside but the door could be opened from the inside by turning the door knob. It was found so locked. Entrance into the house was effected through a window.

Deceased's body was found lying on the floor in the north room near the opening or doorway between that room and the vestibule. Deceased was fully clothed and his eyeglasses were in place. Two bullet wounds were found upon the body. One bullet had struck him in the right chest, passed through the body and had evidently struck the east wall of the vestibule and fallen to the floor where it was found. The other bullet had struck him in the left shoulder, passed nearly through the body and lodged therein. Both were steel jacketed, 32-caliber bullets, such as are usually fired from an automatic pistol. On the floor by deceased's left side was found deceased's revolver, which he had been in the habit of carrying -- a 38-caliber weapon using leaden bullets. It was fully loaded except for one chamber, that directly in front of the hammer, which had been discharged. On the floor of deceased's car was found a 38-caliber leaden bullet corresponding to those found in deceased's revolver. It had passed through the car door, ranging somewhat downward. The indications were that it had been fired from the west doorway of the house and that deceased's assailant or assailants, when firing the shots that killed him, must have been west of deceased, perhaps in or just outside the doorway, since the bullet that passed through his body had struck the east wall of the vestibule.

The bed in deceased's bedroom was somewhat "rumpled," as though it had not been made up after last having been slept in. Otherwise everything in the house was in order, as was the clothing on deceased's body. Nothing had been stolen, nor were there any indications of attempted theft or robbery. A valuable diamond ring which deceased had been in the habit of wearing was still on his finger and some money was found in the pockets of the clothes he had on. Two electric lights, one in the vestibule and one in the living room, were burning.

The coroner, Dr. Hogan, who examined the body of deceased about noon on March 5th testified that in his judgment deceased had then been dead between thirty-four and thirty-six hours; that he thought he could tell the length of time within two to six hours. He further said that from the nature of the wounds he thought deceased had probably lived an hour or an hour and a half after being shot.

Several witnesses testified that they had heard deceased speak of having been threatened. One witness said that about a year before his death Van Hoose pointed out to him "a man" who had threatened "to get him." Another witness said that "about a year or so ago some person indirectly stated they were going to try to rob him." Another testified that in November, 1933, Van Hoose reported to officers that he had been informed "some persons" were planning to rob him of his diamond ring. It appears also that about a year before his death he had been robbed of his diamond ring, which, in some way not disclosed, he had recovered. There is no evidence tending to connect defendant or any of the persons charged jointly with him with any of those threats or with said robbery.

The State's theory at the trial seemed to be that defendant and the others charged with him had entered into a conspiracy to rob Van Hoose and had killed him in attempting to carry out that conspiracy. The testimony by which the State sought to show such conspiracy and to connect defendant with the killing was mainly that of two witnesses, R. E. Dugan and one of the original defendants, Charles Napper, whom the State called as a witness, after...