The State v. Brown

• Decision Date: 19 February 1913
• Parties: THE STATE v. ARTHUR BROWN, Appellant
• Court: Missouri Supreme Court

153 S.W. 1027

247 Mo. 715

THE STATE v. ARTHUR BROWN, Appellant

Supreme Court of Missouri, Second Division

February 19, 1913

Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.

Reversed and remanded.

Cameron L. Orr and Horace S. Kimbrell for appellant.

(1) The court erred in permitting the State to prove by witnesses Pulhamus and Brown that they made repeated statements outside of court similar to the statements made in court under oath. State v. Brown, 17 Mich. 435; DeShon v. Ins Co., Metc. 199; 1 Greenleaf, Ev., sec. 469; Starkey Ev., p. 187; Rix v. Parker, 3 Doug. 242; Berkley -- Peerage case, 2 Phil. Ev. (4 Ed.) Cowen and Hill's Notes p. 974, note 2; Robb v. Hockley, 23 Wend. 50; 2 Russell Cr. 938-9, 763; 5 Cow. 314; State v. Taylor, 134 Mo. 154. (2) Under the facts of this case, the instruction given on alibi is confusing, misleading and ambiguous. Defendant, according to his own admissions, was at the place -- if "place" be a term broad enough to take in the Missouri Pacific freight house and grounds -- and in this sense he was there at the time also. Defendant denies he was in the cashier's office at the time of the shooting. State v. Bateman, 196 Mo. 39; State v. Taylor, 118 Mo. 153; State v. Harvey, 131 Mo. 339. (3) The court erred in failing to rebuke the prosecuting attorney for arguing to the jury that Lafe Fowler, defendant's chief witness, upon whose evidence he relied to establish his innocence, was himself a party to the murder of Arthur Underwood, and was so guilty under the evidence, that he should be a prisoner in the "dock" on trial for his life, instead of being recognized as a reputable witness, whose testimony the jury should fairly consider in determining the guilt or innocence of defendant. The court erred in giving this judicial sanction by saying in the presence of the jury, "I see nothing objectionable to it." State v. Wana, 245 Mo. 558; State v. Ulrich, 110 Mo. 350; Cameron v. Cameron, 162 Mo.App. 110.

Elliott W. Major, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.

(1) Instruction 8, with reference to alibi, has repeatedly met with the sanction of this court. State v. Williams, 141 Mo. 321. (2) Under the testimony in the case and the facts as brought forth from the witnesses, neither of the statements made by the assistant prosecuting attorneys were anything more or less than legitimate arguments of the testimony in the case. No serious objection can be urged against either of the statements. In order to justify a reversal of a judgment in a criminal case because of improper remarks by an attorney for the State, it should appear to the court that the remarks complained of were prejudicial to defendant, and probably had something to do in bringing about the verdict reached by the jury. State v. Hibler, 149 Mo. 484.

WALKER, J. Brown, P. J., and Faris, J., concur.

OPINION

WALKER, J.

The prosecuting attorney of Jackson county, on December 20, 1911, filed an information in the criminal court of that county, charging the defendant with murder in the first degree, in the shooting and killing of Albert Underwood on December 1, 1911. At the January term, 1912, of said court, the defendant was tried, found guilty of murder in the first degree, and his punishment assessed at death. Timely motions for a new trial and in arrest of judgment were filed and overruled, and an appeal has been perfected to this court.

The facts disclosed by the evidence are as follows:

Albert Underwood, the deceased, was employed in the auditing department of the Missouri-Pacific Railway Company at its freight offices in the West Bottoms in Kansas City, Missouri. His particular duties were to receive collections, in the cashier's office of the said department, on account of freight. The cashier's office was on the first floor of a three-story building, the entrance to same from the street being through a general hallway in which there were stairs leading to the upper floors. About twenty-five feet from this main entrance a door opens into the cashier's office where Underwood was employed, his desk being located in the southeast corner of the office to the right of the cashier's window. At the time of the killing, a young man named Barnes was at work at a desk in the opposite corner to the right of where Underwood was employed; to the left of Barnes was a desk occupied by a man named Proctor, and behind the door which entered the room from the main hallway and near the corner, was another desk occupied by a man named Pulhamus. Just in the rear of Underwood's desk was another occupied by a man named Brown, and near Brown's desk Clayton, another employee of the railroad, was standing.

At about 5:40 o'clock on the evening of December 1, 1911, the door of the cashier's office leading from the main hall was opened, and one of the witnesses present states that three negro men entered, two of them stopped just inside the door, and that the third, who was the only one seen by the other witnesses, was the defendant. He walked into the room behind the chair where Barnes was sitting, and with a revolver in hand said to Barnes, "Get into the vault, and be quick about it." The vault referred to was adjacent to the cashier's office. The defendant then shot at Barnes and the bullet grazed his neck, passing through the right sleeve of his shirt. Defendant then struck Barnes as he was rising from his chair, and felled him to the floor. Turning to Pulhamus, who was partially behind the door, and pointing his pistol at him, defendant ordered him to get back into the vault. Pulhamus did so, backing towards the vault. While this was occurring, Underwood, the deceased, was standing near his desk where he had been checking off freight receipts. The defendant then pointed his pistol at Underwood, saying, "Damn it, get back into the vault." Almost simultaneously with this command the defendant fired the pistol, striking Underwood in one of his hands. Underwood exclaimed, "For God's sake give me time to get into the vault!" With that the defendant shot again, striking and mortally wounding Underwood, who staggered out of the room into the vault. Of the persons employed with Underwood at the time of the shooting, the defendant was identified by Barnes, Pulhamus, Brown and Clayton. In addition to Underwood, these were all of the persons in the room at the time, except one Proctor, who stated he was so frightened he did not stop to take a look at the man who was doing the shooting, but got out of the room as soon as he could after the trouble began.

At the time defendant entered the room, there were lying around on the cashier's desk several hundred dollars in money and checks. Defendant had previously been employed in the same building, was familiar with the location and arrangement of the offices and where the money was kept.

Immediately after the shooting, defendant tried to get out of one of the windows, but failing in this turned and ran out of the door. In addition to those who witnessed the killing, and identified defendant, he is also identified by W. R. Lentz, the local agent of the railway company, who states that while he was in his office on the second floor of the same building in which Underwood was killed at about 5:40 p. m. a young man rushed in saying that "the cashier's office was being held up and robbed;" that witness rushed out of his office and ran down stairs when he saw a negro man running through the hall towards the front door; that witness saw defendant at the police station on the following Monday and identified him as the man he saw running through the hall; that witness went, immediately after seeing the man run through the hall, to the cashier's office and found Underwood shot and his associate employees attempting to hold him up to keep him from falling on the floor; that witness called a physician and an ambulance and subsequently Underwood was carried out on a stretcher, put in the ambulance and conveyed to a hospital.

Vincent Kennedy, a clerk employed in one of the offices in the same building in which Underwood was killed, while sitting in his employer's office, heard two or three shots fired; he ran to the door and partially opened same, and saw a negro man coming out of the door of the cashier's office. When the man came within four or five feet of witness, the latter saw that he had a pistol in his right hand and something in his left; that upon the man's seeing the witness, the former said, "Step back, you son-of-a-bitch, and don't move;" that the witness had a fair opportunity at that time to see the man and identifies him as the defendant now on trial.

A boy named Ward, also employed at the building where the killing occurred, testified that a few minutes before the shooting he saw defendant in the building and had a conversation with him. Another witness named Oscar Underwood stated that a few minutes after the time testified to by Ward he saw the defendant and a janitor named Powell talking to each other in whispers in the toilet room at the end of the floor on which the cashier's office was located.

Defendant's principal witnesses to establish an alibi -- which was the substantial defense in the case -- are himself and a negro man named Lafe Fowler.

The substance of defendant's testimony is that on the evening Underwood was shot, at 5:20 or 5:25 o'clock, defendant went to a building near the one in which the shooting occurred, to collect a small sum of money due him from the janitor named Featherstone Powell. Failing to accomplish the purpose of his visit defendant said to Powell, "I am going over to Lafe Fowler's," the latter being the janitor employed in what was known as the Superintendent's Building, which was near the one in...