State v. Wright, 33391.

• Citation: 77 S.W.2d 459
• Decision Date: 01 December 1934
• Docket Number: No. 33391.,33391.
• Court: United States State Supreme Court of Missouri
• Parties: THE STATE v. HENRY WRIGHT, Appellant.

77 S.W.2d 459

THE STATE v. HENRY WRIGHT, Appellant.

No. 33391.

Supreme Court of Missouri.

Division Two, December 1, 1934.

Appeal from Carroll Circuit Court. — Hon. Ira D. Beals, Judge.

REVERSED AND REMANDED.

H.L. Moore, W.A. Franken and R.H. Moore for appellant.

Roy McKittrick, Attorney General, and Franklin E Reagan, Assistant Attorney General, for respondent.

(1) The search warrant proceedings, and the articles seized thereunder after defendant's arrest and their admission in evidence were not prejudicial to the rights of the defendant. State v. Cook, 18 S.W. (2d) 58; State v. Privitt, 39 S.W. (2d) 755; State v. Williams, 14 S.W. (2d) 434; State v. Hall, 231 S.W. 1004; State v. Richards, 67 S.W. (2d) 58; State v. Pinto, 279 S.W. 144; State v. Turner, 259 S.W. 427. (2) The court committed no error in denying defendant's application for a continuance. State v. Stroud, 275 S.W. 58; State v. Wilson, 242 S.W. 886; State v. Taylor, 8 S.W. (2d) 29; Sec. 3654, R.S. 1929; State v. Swafford, 12 S.W. (2d) 442; State v. Cockriel, 285 S.W. 440; Sec. 3630, R.S. 1929; State v. Hancock, 7 S.W. (2d) 275. (3) Juror Perry was qualified to sit as a juror. State v. Wampler, 58 S.W. (2d) 266; State v. Smith, 228 S.W. 1057; State v. Baker, 285 S.W. 418. (4) The record is insufficient to preserve for review the opening statement of the prosecuting attorney and the evidence submitted relating to defendant's separate trial for carrying concealed weapons. State v. Beaghler, 18 S.W. (2d) 423; State v. Keller, 281 S.W. 962; Mo. Dig. Criminal Law, 695; State v. Van Valkenburgh, 285 S.W. 978; State v. Sinovich, 46 S.W. (2d) 880; State v. Holmes, 289 S.W. 904; State v. Walker, 248 S.W. 947; State v. Salts, 56 S.W. (2d) 21; State v. Flores, 55 S.W. (2d) 953; State v. Rowe, 24 S.W. (2d) 1032. (5) The court's ruling on the cross-examination of State witnesses was proper. State v. Stallings, 33 S.W. (2d) 917. (6) The court committed no error in admitting the testimony relating to the .38 calibre bullet hole in the wall of an adjoining building. State ex rel. Railroad Co. v. Hall, 325 Mo. 102; State ex rel. v. Terte, 25 S.W. (2d) 459; Kenefick v. Norwich Union Fire Ins. Society, 103 S.W. 961. (7) The argument of State's counsel for law enforcement, and on the meaning of the mask, was proper. State v. Greer, 12 S.W. (2d) 91; State v. Mathis, 18 S.W. (2d) 8; State v. Martin, 56 S.W. (2d) 137. (8) The court committed no error in giving Instruction 4. State v. Richards, 67 S.W. (2d) 62; State v. Lindsey, 62 S.W. (2d) 423; State v. Reich, 293 Mo. 423; State v. Linders, 299 Mo. 671; State v. Nasello, 30 S.W. (2d) 139; State v. Lackmann, 12 S.W. (2d) 424. (9) The court committed no error in refusing to give defendant's Instructions A, B, C. State v. Shaffer, 161 S.W. 805.

FITZSIMMONS, C.

This is a companion case of State v. Richards, 334 Mo. 485, 67 S.W. (2d) 58. Appellant Wright and Tom Richards were charged by an information in the Circuit Court of Clay County with the crime of murder in the first degree. The case was transferred to Carroll County on a change of venue and, upon motion, appellant was tried separately and found guilty as charged. His punishment was fixed at life imprisonment. From the sentence and judgment he appealed to this court.

On the night of March 7, 1932, and the early morning of March 8, several men were attempting to force open the vault of the Kearney Trust Company, at Kearney, a town of five or six hundred population in Clay County, Missouri, about ten or twelve miles distant from Excelsior Springs. As a preliminary to the commission of this crime the men seized Joe Thompson, the night watchman of Kearney, shortly after eleven P.M., and imprisoned him in a barber shop across the street from the bank. Thompson was in the habit of going to his home each midnight for a meal. When he did not return on the night of March 7 up to the hour of two in the morning, Mrs Thompson notified Ernest Barr, a neighbor. Barr arose, dressed and went to the neighborhood of the bank in search of Thompson. At or near the barber shop in which Thompson was detained, Barr met a man whom Thompson at the trial of this case identified as Richards. After a few words between Barr and Richards, a second man who stood in the roadway of the street, fired several shots, two of which struck Barr and caused his death the next day.

Thompson at the trial definitely identified appellant Wright and Richards as two men who about eleven P.M., on March 7, stopped their automobile in front of the barber shop where, at the time, Thompson was warming himself. They stated that they needed gasoline, and Thompson directed them to a filling station at the intersection of the two main streets of Kearney and close to the bank and the barber shop. While Thompson was attempting to unlock the door of the filling station in order that he might serve them, the men, identified as Richards and Wright, menaced him with revolvers, took his own weapon from him and made him enter their automobile. They drove with him to another part of the town where they met other men in a second car. At the order of one of these other men Wright and Richards blindfolded Thompson and drove him back to the barber shop. The identified men informed Thompson that the purpose of their visit was to rob the bank. Richards' principal part in the crime, according to the testimony of Thompson, was to stand guard over Thompson. This he did by remaining with him in the barber shop or on the sidewalk in front of it up to the time that Barr was shot, approximately three hours after the seizure of Thompson. Appellant Wright, from time to time, crossed the street from the bank to the barber shop. Thompson did not have an opportunity to see or to identify any of the men engaged in the crime except Wright and Richards. After the shooting of Barr citizens of Kearney and officers of Clay County found that the outer door of the bank had been forced open and that a large sheet of metal had been cut from the door of the bank vault by means of an acetylene gas torch. In view of the full statement made in State v. Richards, supra, we will not narrate further facts of the crime unless our examination of assignments of error may require. There was undisputed and incontestable evidence that Barr was killed by men who at the time were engaged in the perpetration of a burglary of the bank and therefore that the killing of him was murder in the first degree under Section 3982, Revised Statutes, 1929.

[1] I. A preliminary question to be determined is whether the trial court erred in refusing to grant the application of appellant Wright for a continuance on account of the absence of his mother by reason of sickness. Wright's defense was that he took no part in the crime and that on the night of March 7, 1932, he was in Excelsior Springs, Missouri, where he lived with his mother.

When the case was called for trial on October 3, 1932, appellant filed an application for a continuance. The ground for the application was that appellant's mother, Mrs. Della Wright, was absent on account of sickness and could not be present to testify because her condition of health was such that it would endanger her life to attend the trial and to attempt to testify or to have her deposition taken. Medical testimony given at the hearing upon the application for a continuance was to the effect that Mrs. Wright had a chronic ailment which, about September 19, became acute and that, until her illness moderated to the usual state of her affliction, she could not attend the trial. The doctors also testified that in their opinion she would so far recover that she could be present in court in about two or three weeks. This medical testimony was not disputed.

The application further recited that Mrs. Wright had been personally subpœnæd on September 21 to attend as a witness at the trial of the case on September 22. The last date was one of several days between September 19 and October 3, on which proceedings preliminary to the trial were had. The proof of service of the subpœna was complete and was not disputed. The application for a continuance further stated that appellant's mother would testify that on the night of March 7-8, 1932, when the murder of Barr at the town of Kearney was committed, appellant returned to the home in Excelsior Springs in which he lived with the witness (his mother) at about midnight; "that said witness saw and talked to defendant at that time, and that defendant soon thereafter went to bed in the room adjoining that occupied by said witness, and did not leave said room or get up until late the next morning." The application also stated that appellant was unable to prove by any other witness the facts to be proved by Mrs. Wright. The application was in accordance with the statute (Sec. 3654, p. 3210, Mo. Stat. Ann.) governing a motion to continue a cause on the part of a defendant in a criminal proceeding on account of the absence of evidence.

The gist of the resistance of the State at the trial to the continuance seemed to be that Mrs. Wright was subpœnæd to appear on a day on which the case was not on the docket for trial. The record proper does not support this contention of the State. Nor should Mrs. Wright have been subpœnæd anew for October 3, the day on which the case finally went to trial after days given to the disposition of a motion for severance; motions to suppress evidence; a demurrer to the information, amendments of the information and the like. She having been duly subpœnæd at her home in Excelsior Springs to appear, on September 22, at Carrollton, the county seat of Carroll County, she became subject to Section 3839, Revised Statutes 1929, which provides: "Whenever a witness in a criminal case has been once subpœnæd or recognized to appear before any court or magistrate, he shall attend under the same as such witness, from time to time, and from term to term, until the case be disposed of, or he...