The State v. Cockriel

• Decision Date: 28 May 1926
• Docket Number: 26883
• Citation: 285 S.W. 440,314 Mo. 699
• Parties: THE STATE v. ACE COCKRIEL, Appellant
• Court: Missouri Supreme Court

285 S.W. 440

314 Mo. 699

THE STATE v. ACE COCKRIEL, Appellant

No. 26883

Supreme Court of Missouri

May 28, 1926

Appeal from Jackson Circuit Court; Hon. J. H. Austin Judge.

Affirmed.

Walter E. Walsh, Jerome Walsh and Joseph R. Stewart for appellant.

(1) The trial court abused its discretion over the objection and exception of the defendant in compelling the defendant to go to trial, in that it gave the defendant but seventeen days from the return of the indicment and but twenty-five days from the date of the alleged offense to employ counsel prepare for trial, procure depositions as to injuries contained in the records of the United States Government at Washington, D. C., and to obtain the evidence of important witnesses, which could not possibly be done within such a short period of time. State v. Salts, 263 Mo. 304; State v. Tettanton, 159 Mo. 354; State v Riddle, 179 Mo. 287; State v. Arnold, 267 Mo. 33; State v. Sovern, 225 Mo. 580; State v. Sublett, 191 Mo. 163. (2) The court erred in admitting in evidence the opinion of the witness Merrill Come, that this appellant was sane, for the reason that the said witness did not know the appellant, had not seen or observed him for a sufficient length of time, did not state facts or circumstances upon which to base his opinion, and was not qualified to give or express an opinion on that subject. And the court erred in admitting in evidence the opinion of witness Benton, that this appellant was sane, for the reason that the said witness did not know him, did not state facts or circumstances upon which to base his opinion, had not seen or observed him for a sufficient length of time, and was not qualified to give or express an opinion on that subject. State v. Erb, 74 Mo. 199; State v. Klinger, 46 Mo. 229; State v. Morris, 263 Mo. 339; State v. Speyer, 194 Mo. 459. (3) The court erred in admitting in evidence over the objection and exception of the defendant, the petition for the divorce filed against the defendant by the deceased, for the reason that the petition was not a document admissible under any rule of evidence. The statements and allegations therein contained were made outside of the presence of the accused, were conclusions of the pleader, ex parte, voluntary statements, and defendant was denied the right of cross-examination with reference thereto, as the party making them was dead, and were highly improper and prejudicial evidence and directly calculated to poison and arouse the minds of the jury against defendant. State v. Newcomb, 220 Mo. 54; State v. Jaeger, 66 Mo. 173; State v. Rotchschild, 68 Mo. 52. (4) The court erred in permitting highly improper and judicial questions to be asked in the cross-examination of witness Covert, and in failing to reprimand assistant prosecuting attorney, at the request of the defense attorney. State v. Miller, 263 Mo. 326; State v. Wellman, 253 Mo. 302; State v. Hess, 243 Mo. 147; State v. Bobbst, 131 Mo. 328; State v. Webb, 254 Mo. 414. (5) The trial of this cause was a complete miscarriage of justice. The defendant was not given a fair and impartial trial. He was referred to in the presence of the jury as a murderer. The scene of the homicide was referred to as the place of the murder. Rules of evidence were laid aside, hearsay evidence, opinion evidence without qualification, or statements of fact, statements made outside the presence of the accused, improper evidence and highly prejudicial statements and objections were placed before the jury. Statements and questions were made and asked by the prosecuting attorneys which could have no other purpose than to prejudice the jury against the defendant. Witnesses for the defense were rebuked and belittled and the defense offered was treated with ridicule and contempt. Defendant's counsel in the trial of this cause was grossly incompetent and ignorant of the law. He referred to the scene of the homicide as the place of the murder, the time of the occurrence was referred to as the time of the murder. Witnesses were placed on the stand by defendant's counsel to prove the value of real estate, and while the defense was insanity, witnesses were placed on the stand by defendant's attorney for seemingly no purpose and were permitted, on cross-examination by the State, without objection, and not being qualified or giving any facts or circumstances upon which the opinion was based, to say that the defendant was sane. State v. Jones, 13 Mo.App. 93; Lamento v. United States, 4 F. 901.

North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.

(1) There was positive evidence to prove the corpus delicti. The corpus delicti in murder cases consists of two elements: 1, the death of the person alleged to have been murdered; 2, the criminal agency of some person causing the death. State v. Poor, 286 Mo. 644; State v. Underwood, 263 Mo. 677; State v. Bowman, 294 Mo. 245. (2) The court committed no error by overruling defendant's motion for continuance. This matter is largely within the discretion of the trial court. State v. Tracy, 294 Mo. 372; State v. Williams, 263 S.W. 198; State v. Cain, 247 Mo. 700; State v. Salts, 263 Mo. 304. There was no allegation in the affidavit for continuance that it was not safe for defendant to go to trial without these witnesses, that the witnesses had been summoned, or that they had left prior to the docketing of the case. The showing in the affidavits was not sufficient. State v. Tettaton, 159 Mo. 373; State v. Riddle, 179 Mo. 287; State v. Carter, 98 Mo. 176; State v. Taylor, 266 S.W. (Mo. App.) 1017; State v. Belknap, 221 S.W. 39; State v. Morris, 263 Mo. l. c. 347. If the testimony of the witnesses mentioned in application for continuance is not such as ought to change the result of the case, the overruling of such application is proper. State v. Temple, 194 Mo. 251. (3) Non-expert witnesses may give opinion as to sanity of defendant without stating facts upon which such opinion is based. State v. Liolios, 285 Mo. 13; State v. Soper, 148 Mo. 217. If witness is called to give his opinion as to insanity of defendant he must give facts upon which he bases such opinion. State v. Speyer, 194 Mo. 459. (4) The questions asked by the prosecuting attorney on cross-examination and complained of by defendant do not constitute reversible error. If such questions are asked in good faith and are not prima-facie prejudicial there is no error. State v. Miles, 199 Mo. 530; State v. Anderson, 274 S.W. 19.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

The appellant was indicted on October 3, 1924, in the Circuit Court of Jackson County, for the crime of murder in the first degree. His trial began on October 20th, and a verdict was returned on the 24th, finding the defendant guilty of murder in the first degree and assessing his punishment at life imprisonment in the penitentiary. Motions for new trial and in arrest were filed and overruled, and thereafter, on November 8th, sentence was pronounced in accordance with the verdict and the defendant appealed.

The indictment charges that the defendant shot and killed Nina Cockriel, who was the defendant's wife, on September 25, 1924. It properly charges murder in the first degree. He was arraigned on October 3rd, and entered a plea of not guilty. The cause was set for trial on October 13th, at which time, on an application for a continuance, the case was set for trial on October 20th. That the defendant shot and killed his wife, as charged in the indictment, was not questioned at the trial, nor is it questioned on this appeal; the sole defense interposed was insanity.

The defendant, at the time of the homicide, was thirty-nine years of age; the deceased was twenty-two; she was his second wife; they had been married less than five years. The defendant's mother had conveyed to them, as husband and wife, a house and lot in Kansas City, where they lived until they separated about six weeks before the homicide. The defendant had been working as a pressman in the printing office of the Unity School of Christianity for about three years, and his wife also was working there as a clerk. When they separated she secured a room in the residence of Mr. and Mrs. Robins S. Carey, Mrs. Carey being one of her friends. On the night before the homicide, about midnight, defendant came to the Carey house, asked to see his wife, was admitted, and went into his wife's bedroom. Mr. Carey testified that he heard their conversation; the defendant wanted her to make an appointment to settle their property; she asked him why he did not leave her alone, saying she did not want to live with him; he wanted a settlement of the property or he would do something desperate to her. He talked so loud that he wakened Carey's baby, and Carey told him to leave the house. The next evening defendant went to Carey's drug store and talked about the trouble with his wife; he said if she didn't make an appointment to settle the property there would be serious trouble; that he didn't care about going back to live with her. Defendant talked to him about twenty minutes and left. In a short time Mrs. Carey came to the drug store. Mr. and Mrs. Carey went home about ten P. M. and, learning of the homicide, Carey went to the police station, where he met the defendant. Defendant said to Carey, "I told you I was going to do it." Defendant also made this statement to others who testified at the trial.

Ruth Williams, who worked at the Unity School with Nina Cockriel testified: Nina and I went to a theater on the evening of September 25th, and I accompanied her to the Carey house, arriving there about nine P. M. We saw a man sitting on the porch. It was dark and we did not recognize him. There were no lights in the house. Mrs....