The State v. Bell

• Decision Date: 20 December 1926
• Docket Number: 27473
• Citation: 289 S.W. 619,316 Mo. 185
• Parties: The State v. Portwood Bell, Appellant
• Court: Missouri Supreme Court

289 S.W. 619

316 Mo. 185

The State v. Portwood Bell, Appellant

No. 27473

Supreme Court of Missouri

December 20, 1926

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Reversed and remanded.

Lyons & Ristine, William H. Meschede and A. R. James for appellant.

(1) The court erred in submitting the case to the jury for first degree murder as the evidence at most only constituted second degree murder. State v. Snow, 293 Mo. 150; State v. Kyles, 247 Mo. 640; State v. Minor, 193 Mo 597; Ex parte Verden, 291 Mo. 565; State v. Young, 119 Mo. 495. (2) The court erred in submitting the case to the jury on the theory that the defendant and Eugene Mull formed a design or common purpose to murder the deceased as shown by instructions three and five, as there was no testimony to sustain such theory or justify said instructions. State v. Porter, 276 Mo. 387; State v Stemmons, 262 S.W. 706.

North T. Gentry, Attorney-General, and W. F. Frank, Assistant Attorney-General, for respondent.

(1) No error was committed in instructing on first degree murder. The evidence justifies such a submission. State v. Ellis, 74 Mo. 207; State v. Parr, 296 Mo. 406. (2) The evidence justified the submission of the case on the theory that appellant and Eugene Mull formed a design or common purpose to murder deceased. "To constitute a conspiracy to do an unlawful act it is not indispensable that the evidence show the existence of the conspiracy for any definite period of time prior to the commission of the act, but the combination to do the act may have arisen on the spur of the moment." 1 Words & Phrases (2 Series) p. 913; State v. Parr, 296 Mo. 406. A conspiracy may be shown by facts and circumstances. It is for the court to say, in the first place, whether there is any evidence of a conspiracy, and for the jury to determine whether there was one, and its object. State v. Flanders, 118 Mo. 235; State v. Darling, 199 Mo. 199; State v. Fields, 234 Mo. 623; State v. Sykes, 191 Mo. 78; State v. Roberts, 201 Mo. 728.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On May 11, 1925, the Prosecuting Attorney of Saline County, filed in the circuit court of said county a verified information, charging therein that on March 12, 1925, defendants Portwood Bell and Eugene Mull, with a pocket knife and certain other instrumentalities, feloniously killed C. W. Rex in Saline County, Missouri, and in so doing were guilty of murder in the first degree, etc.

On May 14, 1925, defendants waived arraignment and entered their respective pleas of not guilty. After several continuances an amendment of the information was made by consent by indorsing on back of same "Richard Cravens, Carl Mounts and George Stuband." Thereupon defendants again entered pleas of not guilty. On September 22, 1925, a severance was granted defendant, Portwood Bell. On September 25, 1925, after a trial before a jury, the latter returned a verdict finding defendant Bell guilty of murder in the first degree and assessed his punishment at imprisonment in the State Penitentiary for life. On the return of the verdict counsel for defendant informed the court that they desired to file a motion for a new trial within four days, and thereupon the cause was continued to September 30, 1925, at which time defendant filed a motion for a new trial, supported by affidavits. On October 8, 1925, the State filed counter affidavits. On December 16, 1925, the court overruled defendant's motion for a new trial. On said last-named date, allocution was granted, judgment rendered, defendant sentenced in conformity with the verdict and an appeal allowed defendant to this court.

The State's evidence was as follows:

Raymond Jones testified, in substance, that he lived on a farm about eight miles from Slater; that he was acquainted with deceased, C. W. Rex, in his lifetime; that he and Rex came to Marshall, Saline County, on March 12, 1925, in a Ford touring car; that about 5:30 p. m. on the above date, at the suggestion of Rex, they drove down to the Bert Simpson place in Marshall, located on Marion Street; that they stopped their car at the Simpson house; that Rex got out of the car with witness following, and they went to the door; that deceased went in and witness remained on the outside; that after deceased went into the house, he heard a racket in there and some one said, "There is the s -- of-a-b -- from Slater;" that this remark came from the inside and the door was closed; that witness went back and cranked up his car; that Rex came around from the side of the house with a scar on his face, and witness said to him, "What is the trouble?"; that Rex made no reply, and witness said to him, "Well, let's go;" that Rex started toward the car and defendant Portwood Bell started after him with a knife in his hand and with the blade down; that Rex was running with Bell after him and they had a scuffle behind the car; that Bell hit deceased on the side of his head with the butt of the knife, and deceased fell to the ground; that Rex was getting up on his arm, when Bell kicked him, and then started toward the car of witness; that at the time Rex came out of the house and towards the car he heard him say something, but the engine was running, and witness did not know exactly what was said, but he said something like, "I will get you," and Bell started towards him; that Rex was running and Bell right after him; that when Rex made the remark, "I will get you," or some words to that effect, he was traveling towards the car; that deceased might have said, "I will shoot you sons-of-a-b --," but the engine was running and he did not hear it; that after Rex was down on the sidewalk, Bell said to him, "Get up, you ain't hurt," and kicked him with his foot; that Bell left deceased Rex and came over towards the car and witness drove away to Slater; that he did not see Mull come out of the house; that he heard Rex say when he came out of the house, "I will get you."

Joseph Coffey testified, in substance, that he lived in Marshall on March 12, 1925, and was acquainted with Portwood Bell and Eugene Mull; that on above date he was at the dwelling house of a negro named Bert Simpson; that Bell, Mull and two negro women were there when Rex came into the house; that Rex asked for Bert Simpson; that Mull and Cordelia Walker were there scuffling; that when Rex came in Mull hit him and knocked him down; that one of the negro women pulled Mull off of the deceased, and the latter went out of the back door; that he did not see deceased with arms of any kind.

Henry Maybery testified that on the above date he and Tom Ballowe were in front of the Bert Simpson house when Rex went in, and two or three minutes afterwards Rex came out of the house, with Bell behind him; that Rex said he would have Bell arrested; that the latter jumped off the porch and said he would teach him how to have somebody arrested; that Bell drew a knife from his pocket and opened it; that Rex ran around behind the car, across the street, and Bell right after him; that Bell hit deceased and the latter fell; that deceased, from the time he came out of the house until he fell, was running, looking back, and did not do anything; that when deceased fell, his head hit on the sidewalk; that Mull came out of the house, picked deceased up by the hair of his head, slapped him open-handed, and dropped his head back on the sidewalk; that Bell and Mull walked on down the street and left Rex lying there; that he and Ballowe took deceased to the doctor's office, and he was alive when they got to town with him; that deceased died on the same day; that when deceased came out of the house, and got ten or fifteen feet from the porch, he said to Bell, "I am going to have you arrested;" that Bell started after him, and had a knife; that he first saw the knife when Bell came off the porch; that they were scuffling as they came out of the yard; that Bell was hitting at deceased and the latter was running from him; that Bell hit deceased, the latter fell; that Bell kicked him and walked off.

Thomas Ballow corroborated the testimony of Maybery in most of the particulars. He further testified that when Rex came out of the house, he told Bell he was going to have him arrested; that Bell said, "You son-of-a-b --, I will learn you how to have somebody arrested," opened his knife and started after Rex; that deceased ran behind the car, and in the scuffle got away from Bell; that they crossed the street, with Rex trying to get away; that Bell caught deceased and, in the scuffle, deceased got loose from Bell again; that the latter caught deceased, hit him on the chest; that Rex jumped up, fell over on the sidewalk, Bell kicked him four or five times, walked off and left him; that about that time Mull jumped off the porch, came over, picked deceased up by the hair of his head, slapped him open-handed, threw him back on the sidewalk and left him; that at this time deceased did not do anything, and was unconscious; that Bell had a knife in his hands when he hit deceased, and the blade of the knife pointed towards deceased's breast; that deceased never at any time struck at Bell.

Dr. A T. Coffman testified that he examined Rex on above date; that he could feel no pulse at the wrist, opened his clothing, and saw blood on his shirt and underwear; that his face was badly bruised; that there was a cut in his abdomen just over the stomach, at the end of the breast bone, or probably an inch below the breast bone; that this was a vital part of the body; that on the next day he found a very decided bruise back of the left ear; that this bruised place was about one and one-half inches transversely, two or three inches up and down, was black and puffed out; that this bruise was on a vital part of the...