The State v. Carroll
| Decision Date | 23 June 1921 |
| Citation | 232 S.W. 699,288 Mo. 392 |
| Parties | THE STATE v. JOHN CARROLL and CHARLES W. JOCOY, alias JOSEPH COYLER, Appellants |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court. -- Hon. R. A. Breuer, Judge.
Reversed and remanded (with directions).
T. W Breid, Jesse M. Owen and Jesse H. Schaper for appellants.
(1) The trial court erred in overruling the motion of defendants Carroll and Jocoy to strike out all that part of the written statements made by them to the prosecuting attorney and his assistants and read in evidence by the State relating to the acts of said defendants in holding up the taxi in the City of St. Louis, and in holding up the Ford automobile in St. Louis County, and in robbing a man in Washington of six dollars in money and in appropriating the money to themselves, for the reasons: (a) The statements of the acts of defendants so sought to be stricken out were crimes separate and independent of the crime charged against defendants in the information in this case. (b) There was no such connection between the crimes mentioned in said statements and the one charged in the information that, in proving the one, the evidence necessarily tended to prove the other. (c) There was only one crime charged in the information and the state had no legal right, proceeding by ambush, to attempt to prove other independent crimes of a different nature against defendants. (d) There was no intimation given by the State to counsel for defendants at or before the admission in evidence of the statements so made by defendants, that parts of said statements relating to other crimes were contained in said statements and were going to be read in evidence by the State. Therefore there was no opportunity afforded to counsel for defendants to make a timely objection against the admissibility of the parts of the statements relating to other crimes, and the motion to strike out did not come too late, for there was no waiver of the right to move to exclude. State v. Foley, 144 Mo. 600. (e) Counsel for defendants in making their motion to strike out the statements relating to other crimes, not only pointed out the parts of said statements sought to be stricken out, but also stated the specific grounds or defects on which the same was based, and also at the time stated that they had no knowledge or information that the statements so read in evidence contained statements of other crimes committed by defendants and that therefore they did not make an objection to the evidence before it was read to the jury. (f) The trial court passed the motion of defendants to strike out and stated in the presence and hearing of the jury that it would cure the admission of said evidence by an instruction to the jury, but later overruled said motion to strike out, and at the close of all the evidence refused an instruction offered by defendants to direct the jury to disregard all said evidence relating to other crimes. (g) In thus overruling the motion of defendants to strike out the parts of the statements made by defendants and read in evidence by the State, the court deprived the defendants of a fundamental right guaranteed to them under Section 12 of Article 2 of the Constitution of Missouri, which provides that "no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies," and also under Section 22 of the same article which provides that "in criminal prosecutions the accused shall have the right . . . to demand the nature and cause of accusation." State v. Harris, 222 S.W 420. (h) The general rule is that evidence of the commission of offenses other than the one charged is inadmissible. State v. Spray, 174 Mo. 376; People v Molineaux, 61 N.E. 293. (2) The trial court erred in refusing to give legal and proper instructions asked by appellants. (a) Instruction One, if given, would have properly submitted to the jury the question whether the defendants or either of them was guilty of murder in the first or second degree. R. S. 1919, sec. 3232. (b) Instruction Two, if given, would properly have submitted to the jury the question whether or not defendants, or either of them, was guilty of murder in the second degree. There was evidence on which to base the instruction and it should have been given. (c) Instruction Three was a proper direction to the jury to disregard all that part of the statements purporting to have been made by defendants and read in evidence by the State, which in any manner alluded to the commission or attempted commission of other offenses than that charged in the information. (3) The trial court erred in giving illegal and improper instructions asked by the State. Instruction One is broader than the allegations in the information, in that it submitted to the jury the question as to whether or not defendants entered into a conspiracy to take the life of Benjamin Schowe or to do him great bodily harm, when there was no allegation in the information to that effect. Our Bill of Rights forbids such a result. Mo Constitution, secs. 12 and 22, art. 2; State v. Kyle, 177 Mo. 664; State v. Harris, 222 S.W. 420. (4) There was no substantial evidence introduced at the trial to support the verdict of the jury, and therefore, it should be set aside on appeal. The information in this case did not charge that the offense was committed by defendants pursuant to a conspiracy or agreement between them to kill Benjamin Schowe, or to do him great bodily harm. It was incumbent on the state to allege and prove by substantial evidence that there existed a conspiracy between the defendants at and before the commission of the alleged offense. The defendants had the right under the Constitution to demand the nature and the cause of the accusation, but this right was not accorded to defendants at the trial of this case. Mo. Constitution, art. 2, secs. 12 and 22; State v. Harris, 222 S.W. 420. (5) The trial court erred in overruling appellants' motion to quash the information. (a) The information did not charge any offense against the defendants Carroll and Jocoy known to the laws of Missouri. (b) The information did not charge that the offense was committed by defendants Carroll and Jocoy, pursuant to a conspiracy existing between them, to take the life of Schowe, or to do him great bodily harm. (c) The information does not purport to be verified by the affidavit of the prosecuting attorney of Franklin County. (d) The information is vague, indefinite and uncertain by reason of the allegations aforesaid. (6) The trial court erred in overruling defendant's motion in arrest of judgment. The jury, in one verdict, found all of the defendants guilty of murder in the first degree and assessed the punishment of defendants Carroll and Jocoy at death, and the punishment of defendant Shirer at imprisonment in the penitentiary for life, but the jury, by their verdict, failed to find defendants guilty as charged in the information, and failed to assess the punishment of defendants Carroll and Jocoy separately, and the trial court also failed to assess and declare the punishment of Carroll and Jocoy separately or otherwise. Therefore, upon the record, the judgment is erroneous, and should be set aside on this appeal. R. S. 1919, sec. 4046; State v. Thornhill, 174 Mo. 364; State v. Gordon, 153 Mo. 576.
Jesse W. Barrett, Attorney-General, Albert Miller, Assistant-Attorney-General, for respondent; James Booth, W. L. Cole, and R. W. Otto of counsel.
(1) The court did not commit error in overruling appellants' motion to quash. (a) The information is sufficient in form and substance, and properly charges ap-appellants with the crime of murder in the first degree. State v Bradford, 156 Mo. 95. (b) The information is verified by the oath of the prosecuting attorney. Sec. 3849, R. S. 1919; State v. Bonner, 178 Mo. 431; State v. Schnettler, 181 Mo. 184; State v. Brown, 181 Mo. 224; State v. Brock, 186 Mo. 459; State v. Anderson, 252 Mo. 94; State v. Stewart, 274 Mo. 655. Where, in the verification of an information, the words, "prosecuting attorney" are omitted after the name of that officer appearing in the oath, that error is immaterial and constitutes no ground to quash. State v. Ferguson, 278 Mo. 130; State v. Kinney, 81 Mo. 102. Where, in the body of the information appear: "Robert W. Otto, Prosecuting Attorney within and for he County of Franklin and State of Missouri, upon his official oath as such prosecuting attorney and upon his hereunto appended oath, informs the court," the failure to insert the words "prosecuting attorney" after the name "Robert W. Otto" in the oath appended to said information does not invalidate the verification. State v. Salts, 263 Mo. 313. The omission to put the words "prosecuting attorney" after the name "Robert W. Otto," in the oath appended to the information filed herein, did not mislead appellants or prejudice their rights upon the merits of the case. State v. Brock, 186 Mo. 459, State v. Kinney, 81 Mo. 102; State v. Ferguson, 278 Mo. 130. (2) The court did not commit error in overruling appellants' motion to strike out all that part of the written statements made by them and read in evidence by the State relating to other offenses committed by appellants. (a) If the evidence offered directly tends to prove the particular crime charged, it is to be received, though it may also tend to prove the commission of another separate and distinct offense. State v. Jones, 171 Mo. 407; State v. Whitley, 183 S.W. 321; State v. Sherman, 264 Mo. 382; State v. Banks, 258 Mo. 493. (b) Evidence, which is illustrative of the principal act in the tragedy and a part of the system of criminal acts so connected together that each tends to establish the guilty...
To continue reading
Request your trial