The State v. Ellis
| Decision Date | 19 November 1921 |
| Parties | THE STATE v. CHARLES ELLIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Benj. J. Klene Judge.
Affirmed.
Jesse W. Barrett, Attorney-General, and Robert W. Otto, Assistant Attorney-General, for respondent.
(1) Mere allegations of passion and prejudice present nothing for review. State v. McBrien, 265 Mo. 594, 604. (2) The court did not commit error in overruling appellant's instruction in the nature of a demurrer requested by appellant at the close of the State's testimony-in-chief. The record discloses that there is substantial evidence upon which to submit the case to the jury. State v DePriest, 232 S.W. 83; State v. Fields, 234 Mo 615, 627; State v. James, 216 Mo. 394, 407; State v. Wooley, 215 Mo. 620, 687; State v. Belknap, 221 S.W. 39. Defendant waived his right to insist upon his demurrer at the close of the State's case by introducing his own evidence. State v. Belknap, 221 S.W. 45; State v. Mann, 217 S.W. 69; State v. Martin, 230 Mo. 680, 700; State v. Lackey, 230 Mo. 707, 713; State v. Fuller, 213 S.W. 98. (3) Appellant alleges that the court erred in admitting illegal, improper, incompetent and prejudicial evidence, introduced on the part of the State over the timely objections and exceptions of the defendant. The foregoing objection to the evidence is not before the court for review. The particular testimony complained of should be indicated in the motion for new trial. State v. Holden, 203 Mo. 581; State v. Brown, 168 Mo. 449, 474; State v. Whitsett, 232 Mo. 511, 529. (4) The cross-examination of the witness was not improper, illegal or prejudicial, nor was the assistant circuit attorney guilty of misconduct, nor did the court err in permitting him to ask the witness prejudicial questions. (a) A witness for the defendant who testifies to the latter's good character may, on cross-examination, be interrogated as to his sources of information and his knowledge of the character of the accused, although other and independent crimes charged against the defendant may thereby be disclosed. State v. Crow, 107 Mo. 342; State v. Boyd, 178 Mo. 2, 17. (b) The rulings of the trial court as to the admission of evidence are not before this court for review. A mere objection to the testimony, without stating any grounds therefor, will not require an examination into the admissibility of the evidence. State v. Westlake, 159 Mo. 669, 679; State v. Decker, 217 Mo. 315, 325; State v. Bell, 212 Mo. 111; State v. Harris, 199 Mo. 716, 723. (5) Cross-examination of the defendant was proper. A careful examination of the evidence brought out on cross-examination of the defendant does not disclose that he was asked questions which referred to the character and criminal records of the other defendants in the indictment. Cross-examination need not be confined to a mere categorical review of the matters stated in direct examination. State v. Meyers, 221 Mo. 613; State v. Foley, 247 Mo. 638; State v. Miller, 190 Mo. 463; State v. Miller, 156 Mo. 85. (6) Defendant was convicted of murder in the second degree, he cannot complain of a given instruction on murder in the first degree. State v. Lewis, 264 Mo. 420, 430; State v. Sharp, 233 Mo. 269, 288; State v. Green, 229 Mo. 642, 654; State v. Wilson, 250 Mo. 323, 329. (7) The court did not err in giving an instruction on murder in the second degree. There was sufficient evidence to sustain a verdict of guilty of murder in the second degree. State v. Morehead, 271 Mo. 84, 88; State v. Fuller, 213 S.W. 98; State v. Fields, 234 Mo. 615, 624; State v. Howard, 231 S.W. 255. (8) Where the law, as declared by a requested instruction, is fully covered by other instructions given by the court, a requested instruction is properly refused. State v. Rose, 271 Mo. 17, 28; State v. Grant, 152 Mo. 57, 71; State v. Bowman, 213 S.W. 64, 65; State v. Shellman, 192 S.W. 435; State v. Gilbert, 186 S.W. 1003. (9) The court did not err in failing to instruct on all the law in the case. This point is not before the court for review. The record fails to show that appellant offered or requested any instruction, and fails to show that appellant excepted at the time, to the failure of the trial court to instruct on all of the law applicable to the case. State v. Pfeifer, 267 Mo. 23, 29; State v. Goldsby, 215 Mo. 48, 57; State v. George, 214 Mo. 262, 270; State v. Gaultney, 242 Mo. 388. (10) The court did not err in instructing on circumstantial evidence. Where a conviction is sought on circumstantial evidence alone, an instruction on circumstantial evidence becomes necessary. State v. Bobbitt, 215 Mo. 10, 43; State v. Donnelly, 130 Mo. 642. (11) The court did not err in failing to withdraw the jury for the purpose of the court passing on the admissibility of evidence. (a) The statements of a defendant when arrested on a charge of committing a crime are always admissible against him. State v. Dale, 210 Mo. 664, 676; State v. Wilkins, 221 Mo. 444, 448; State v. Prunty, 276 Mo. 359, 376. (b) It is not reversible error not to send the jury out during the preliminary hearing as to the admissibility of evidence. State v. Stebbins, 188 Mo. 387, 399. (c) This point is not before this court for review. There was no objection made or exception saved to the refusal of the court to withdraw the jury. State v. Stebbins, 188 Mo. 387, 399. (12) The alleged improper remarks of the assistant circuit attorney are not set forth in the bill of exceptions. Therefore the question as to whether or not such remarks were proper will not be reviewed by this court. State v. Arnold, 267 Mo. 33, 41; State v. Brooks, 202 Mo. 106, 118; State v. McAfee, 148 Mo. 370, 380. (a) Alleged improper remarks cannot be shown by affidavit. State v. McCarver, 194 Mo. 717, 740; State v. Welsor, 117 Mo. 570, 583; State v. Lamb, 141 Mo. 298, 305. (b) It is not sufficient to set forth the remarks of counsel in his argument to the jury in the motion for new trial. State v. Bulling, 105 Mo. 204, 226; State v. McDaniel, 94 Mo. 301, 306.
REEVES, C. Railey and White, CC., concur. D. E. Blair, J., concurs in separate opinion, in which Higbee, P. J., concurs.
Appellant was one of four defendants charged with murder in the first degree for the killing of Henry Krallman at the City of St. Louis on the night of the 25th day of July, 1919. The information was of approved form and its sufficiency was never questioned.
Appellant had a severance, and upon his trial the jury returned a verdict of guilt for murder in the second degree only, and fixed his punishment at imprisonment in the penitentiary for a term of twenty-five years. His motion for a new trial, having been overruled, he perfected his appeal to this court, but has filed no brief and has made no assignments of error. Under the circumstances and in the absence of a motion in arrest of judgment, we look alone to the motion for a new trial to determine whether error sufficient to warrant reversal occurred upon the trial. [State v. Maggard, 250 Mo. 335, 157 S.W. 354; Sec. 4106, R. S. 1919.]
Of the twenty-three assignments of error in the motion for a new trial, several were mere repetitions and all may be condensed into the following:
(a) Insufficient testimony to warrant conviction; (b) Passion and prejudice of the jury; (c) Error in instructing the jury on murder in first and second degree, and instructing on circumstantial evidence; (d) Error in the admission of testimony; (e) Misconduct of the State's Attorney in his cross-examination of the defendant's witnesses and in his closing argument; (f) Failure to withdraw the jury while the question of the admissibility of certain questions was being considered by the court; (g) Error in refusing to give appellant's requested instruction No. 2.
About 11:30 p. m. on July 25th, 1919, Henry Krallman, the deceased, was shot and killed in his saloon on the southeast corner of Marcus and McCaffery streets in the City of St. Louis. McCaffery Street runs east and west and Marcus Street runs north and south, Ashland Street being one block north of and parallel to McCaffery, and Cora Avenue being one block east of and parallel to Marcus.
At the time of the tragedy deceased was apparently alone in his saloon, which faced east on Marcus Street. He lived with his family upstairs over his saloon and grocery store, the latter facing north on McCaffery.
Lillian Krallman, a daughter of deceased, was upstairs, ready to retire, when she heard two shots down in the saloon; she went to the north window of the room, looked out and saw two men, one coatless, running north up the terrace and across the lawn of a cottage on the north side of McCaffery Street. She then went down to the saloon where she found deceased lying on the floor dead with a bullet wound in the head. There was no controversy about the killing. Other witnesses saw two men run north immediately after the two shots, the one being a short coatless man following a taller man wearing a dark suit.
A few minutes prior to the tragedy an automobile without lights stopped, facing east on Ashland and on the south side thereof, and only a few feet east of Marcus. This was a short block north of the saloon. Two men got out of the car, one short and coatless and the other tall, wearing a dark suit. The driver of the car said he would drive around and meet them at the same place, to which one of the two replied "You be sure and be here." The car then drove east on Ashland, turning and disappearing to the north on Cora, returning in a few minutes to the same place. In the interim the two men walked south on Marcus, soon two shots were heard, and then the same two men came running back to the waiting automobile,...
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