The State v. Broyles

• Decision Date: 03 June 1927
• Docket Number: 27819
• Citation: 295 S.W. 550,317 Mo. 284
• Parties: The State v. Bert Broyles, Appellant
• Court: Missouri Supreme Court

295 S.W. 550

317 Mo. 284

The State v. Bert Broyles, Appellant

No. 27819

Supreme Court of Missouri

June 3, 1927

Appeal from Jefferson Circuit Court; Hon. E. M. Dearing Judge.

Affirmed.

North T. Gentry, Attorney-General, and L. Cunningham Assistant Attorney-General, for respondent.

(1) The indictment is in proper form and charges every element of the commission of an assault with intent to kill with a deadly weapon. Sec. 3262, R. S. 1919; State v. Baird, 271 Mo. 9. (2) The evidence shows that the defendant shot at G O. Jury under circumstances warranting his conviction. The evidence of the State and of the defendant shows that the shooting occurred after the attempt to rob the bank had ceased. It was proper to admit the evidence of the shooting at Jury by Gear and Stocker as it was a part of the same transaction. State v. Midkiff, 286 S.W. 20; State v. Shields, 296 Mo. 389, 246 S.W. 932; State v. Gatlin, 267 S.W. 797; State v. Holmes, 289 S.W. 904; State v. West, 246 S.W. 544; State v. Carroll, 288 Mo. 406, 232 S.W. 699. (3) The question of former jeopardy was not sufficiently raised, neither was there any evidence or record offered showing that the defendant had been tried and acquitted or convicted for the same offense. The court could not presume that defendant had been tried and acquitted of the same offense unless proper proof was produced. State v. Burgess, 268 Mo. 420. A plea of former jeopardy was not available. The case at bar is for a separate assault on G. O. Jury. State v. Williams, 263 S.W. 195; State v. Bobbitt, 228 Mo. 272. The defendant had not been tried for assault with intent to kill. The former jeopardy must be on the identical offense. State v. Tedder, 294 Mo. 405; State v. Clinkingbeard, 296 Mo. 34. (4) The instructions given by the court fully covered the law of the case. The court cannot be convicted of error for refusing to give instructions on points already covered. State v. Stuart, 289 S.W. 822; State v. Kunkel, 289 S.W. 865; State v. Mitts, 289 S.W. 935; State v. Gilden, 289 S.W. 821. (a) The giving of an instruction on falsus in uno, falsus in omnibus, is largely in the discretion of the trial court. There was no abuse of that discretion. State v. Gonder, 289 S.W. 645. (b) The refusal to instruct on the testimony of an accomplice was not error. State v. Merrell, 263 S.W. 118. (c) There was direct evidence in the case and an instruction on circumstantial evidence was not required. State v. Hahn, 289 S.W. 845; State v. Crawford, 289 S.W. 961.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

On March 20, 1925, an indictment was returned against appellant, Steve Gregory and William Stocker, in the Circuit Court of Jefferson County, charging them with an assault with intent to kill G. O. Jury on February 28, 1925. Appellant was tried alone, and found guilty, and the jury assessed his punishment at imprisonment in the penitentiary for two years. He was sentenced accordingly and appealed.

The only conflict in the evidence is presented by that part of appellant's testimony which relates to facts and circumstances immediately surrounding the alleged assault. In the morning of February 28, 1925, appellant, Steve Gregory (sometimes called Gear), William Stocker and Clarence McKinley met by appointment in East St. Louis, Illinois, at the east approach of the St. Louis Free Bridge across the Mississippi River. After further discussing their plans of the night before, they crossed the river in a Marmon car and took the LeMay Ferry Road out of St. Louis for the town of Barnhart in Jefferson County, to rob the bank at Barnhart. Before reaching Barnhart they stopped on a little hill and agreed on a definite plan of attack. Gregory had been in Barnhart a few months before. Appellant, being the driver, stopped the Marmon in front of the bank, headed east and with the driver's seat on the side next to the bank. Each member of the party carried a loaded pistol of large calibre and some of them had two. McKinley had a grip, also, in which to carry away the loot. Appellant and McKinley entered the bank, and Gregory and Stocker went into the hardware store in the adjoining building where the town post office was kept. Gregory bought some cartridges for his pistol, and he and Stocker stepped outside of the store, but immediately returned and "held up" the place. "A lot of people waiting for their mail" were ordered to throw up their hands and the robbers then "went through" the post office. Meanwhile, appellant and McKinley were engaging the attention of G. O. Jury, cashier of the bank, by inquiring about work, board and the distance to Crystal City. While appellant was talking to the bank cashier (Jury), he was standing close to the cage window and the cashier could not see what, if anything, appellant had in his hands. About this time the cashier's attention was attracted to the door in the rear, which opened into the hardware store. The cashier went back and opened this door and Gregory (then in the rear of the hardware store) "poked a gun" at him and "told him if he moved he would kill him." The cashier slammed the door shut, and returned to the bank cage with his "45 Automatic" and ordered appellant and McKinley out of the bank. At that time appellant and McKinley "had their guns drawn on" the cashier, but he "kept behind the partition" and "kept the arrangements of the bank" between them and himself. As the cashier advanced to the front part of the cage and out to the front door of the bank, appellant and McKinley backed out of the building to the sidewalk and the Marmon in front. The cashier followed to the sidewalk and there was an exchange of shots. Just when and how many times the cashier fired does not appear. He says appellant shot "directly at" him "at least twice."

McKinley testified for the State and, he says, without any arrangements or promises "as to what would be done with" his case. He says ten or fifteen shots were fired; that Gregory and Stocker came out of the hardware store shooting, and shot at the cashier from the right; that appellant shot once from the driver's seat of the Marmon. When asked how many shots there had been before appellant fired, he said, "One is all that I know of." The court stenographer's notes, read in evidence, showed that, in a case entitled "State of Missouri against Bert Broyles," tried the previous day in the same court, McKinley, when asked whether he saw appellant fire any shots, said, "I don't know, I don't know whether Bert did or not."

The cashier was not hit, but several bullets struck the bank building; one bullet was picked out of one of the partitions; another was found on the floor in the lobby; and another penetrated the wall between the bank and hardware store. McKinley testified that appellant "said he was shot."

Mrs. Barnhart was the only other person in the bank. When the cashier returned from the rear of the bank with his pistol he told her to get down on the floor, and she did, on the opposite side of the cage from appellant and McKinley. She testified, in part:

"I was alarmed and couldn't see much, only I saw them run out of the bank. . . .

"I couldn't see them until they were going out of the door. I became too frightened, and I knew something was wrong, but I didn't see anything else. . . .

"I saw a man at the window with two guns."

Appellant denied on the stand that he, at any time while in the bank or upon leaving the bank, had a gun in his hand, though he admitted having a "32 automatic" in his possession. He also denied that he fired any shots at the cashier "or anybody else." All other material facts and circumstances were either expressly admitted or not denied by him. When questioned on direct examination, he testified, in part, as follows:

"Q. What did you say to Mr. Jury? A. I asked him if there was any railroad work around there.

"Q. Who was with you? A. Clarence McKinley.

"Q. Well, I will ask you what your intention was when you went into the bank? A. To hold it up.

"Q. Had that been planned? A. Yes sir.

"Q. Who had planned it? A. I and Clarence McKinley and Steve Gear [Gregory] and Stocker.

"Q. What occurred with reference to this plan; were they changed when you got into the bank? A. Well, we changed our minds when we got in there.

"Q. What caused you to do that? A. I didn't have any desire for it when I got in there."

Several witnesses from Washington Park (suburb of East St. Louis), Illinois, and one from Elsberry (in Lincoln County, Missouri), testified to appellant's previous good reputation for morality and law-abiding citizenship, in both communities.

While appellant did not perfect his appeal in this case within twelve months, as prescribed by statute, yet, the Attorney-General did not file a motion to dismiss the appeal. In this situation appellant is not required to show good cause for the delay, and the appeal will be considered on its merits. [Sec. 4107, R. S. 1919; State v. Yates, 256 S.W. 809.] In deference to the Attorney-General, however, it should be noted that he has briefed the case in its entirety and requests an affirmance of the judgment instead of a dismissal of the appeal. It should also be noted that appellant has filed no brief, leaving the case for our consideration on all assignments of error properly presented for review in the motions for new trial and in arrest of judgment. And the case being tried and the motions filed before the Act of 1925 became effective, the former rule of considering assignments less specific in character must be followed. We have assumed this burden and discharged it.

I. At the beginning of the trial, when the State began to examine its first witness, appellant's counsel made the following objection: "I desire to object to the...