The State v. Garrett

• Decision Date: 13 December 1920
• Citation: 226 S.W. 4,285 Mo. 279
• Parties: THE STATE v. JAMES W. GARRETT, Appellant
• Court: Missouri Supreme Court

226 S.W. 4

285 Mo. 279

THE STATE v. JAMES W. GARRETT, Appellant

Supreme Court of Missouri, Second Division

December 13, 1920

Appeal from Saline Criminal Court. -- Hon John A. Rich, Judge.

Affirmed.

R. M Reynolds and Roy D. Rucker for appellant.

Frank W. McAllister, Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for respondent.

(1) There was sufficient evidence of guilt to support the verdict. State v. Maurer, 255 Mo. 168; State v Concelia, 250 Mo. 420; State v. Howard, 203 Mo 603. (a) An unsupported allegation of passion and prejudice presents nothing for review. State v. Howell, 117 Mo. 342; State v. Gonce, 87 Mo. 630; State v. McBrien, 265 Mo. 594; State v. Mace, 263 Mo. 157. (2) The court did not err is admitting evidence tending to show that the deceased was reputed to keep a large sum of money in her house and that defendent was cognizant of this reputation. State v. Rasco, 239 Mo. 564; State v. Shelton, 223 Mo. 132; State v. Donnelley, 130 Mo. 642; State v. Jackson, 95 Mo. 623; Kennedy v. People, 39 N.Y. 253; 21 Cyc. 919. (3) Evidence tending to show defendant's financial condition about the time of the homicide was properly admitted. People v. Leung Ock, 74 P. 986; Lancaster v. State, 31 S.W. 575; Clough v. State, 7 Neb. 320; 21 Cyc. 940; also cases cited above. (4) Facts as to the conduct of defendant with regard to drinking whiskey on the way to the funeral of Sarah J. Campbell were admissible. State v. Daley, 210 Mo. 676; State v. Brown, 168 Mo. 449; 21 Cyc. 937, 939. (5) Voluntary statements made by defendant after his arrest were properly admitted in evidence. State v. Daley, 210 Mo. 676; State v. Nocton, 121 Mo. 537; Baines v. State, 66 S.W. 847; 21 Cyc. 941. (6) The court did not err in refusing defendant's demurrer to the evidence. State v. Conway, 241 Mo. 278; State v. Toohey, 203 Mo. 678; State v. Cushenberry, 157 Mo. 179. (7) Instruction D-2, requested by the defendant, was properly refused. State v. Donnelly, 130 Mo. 642; State v. Jackson, 95 Mo. 623; Marabele v. State, 89 Ga. 425; 21 Cyc. 919. (8) The irregularity of the court in excusing jurors on the regular panel and filling in the vacancies by a special summons is not saved for review by a mere allegation in a motion for a new trial. State v. Jones, 61 Mo. 232; State v. Grant, 152 Mo. 57; State v. Marshall, 36 Mo. 400. (9) It was not reversible error for the trial judge to leave the court room and the county seat while the jury was out in this case. Appellant's affidavit discloses that at six o'clock, p. m., it appearing that the jury would be unable to reach a verdict that night, the court took a recess until the following morning. State v. Burns, 148 Mo. 174.

OPINION

WILLIAMSON, J.

The defendant, James W. Garrett, was convicted of murder in the first degree and his punishment was fixed at life-imprisonment in the penitentiary. He had duly appealed.

This is the second time that this case has been in this court. The former appeal was from a like conviction and sentence. The opinion is reported in 276 Mo. 302, 207 S.W. 784. The former judgment was reversed because of an error in an instruction.

The facts in the present record are essentially the same as on the former trial, and for that reason we adopt the lucid statement of facts prepared by White, C., and set forth in State v. Garrett, supra, as applicable here, with the exceptions hereinafter noted.

There was evidence in behalf of the defendant upon the last trial that he frequently carried a large roll of money -- amount not stated -- and that he was seen with such a roll a short time before, as well as immediately after, Mrs. Campbell, the deceased, had been murdered. As upon the former hearing, so in the trial now in review, defendant did not testify in his own behalf, and, as before, certain relatives with whom defendant claimed he had been visiting at Moberly, Missouri, at such a time as made it impossible that he could have been at New Frankfort, the scene of the tragedy, when the murder was committed, also failed to testify. The defense was an alibi, and upon the last trial defendant produced one or two witnesses, in addition to the two who testified on the first trial, in support of that defense.

The court gave eight instructions in behalf of the State, and thirteen at the instance of the defendant, and refused two asked by the defendant.

Appellant is not represented by counsel in this court. We are therefore relegated to our own study of the record and to the motion for a new trial for information concerning any errors which may have occurred in the trial court.

The motion for a new trial is voluminous. In thirteen printed pages it sets forth twenty-eight distinct grounds, ranging from an allegation in the first ground that "the verdict is against the law," to a final charge in the twenty-eighth assignment that "the defendant has not had a fair and impartial trial." The whole course and conduct of the trial is assailed from the examination of the jurors upon their voir dire to the alleged action of the trial judge in leaving the courthouse after the cause had been submitted to the jury. We decline to take up these charges seriatim and discuss them separately. We have so often held that vague generalities and mere assertions in motions for a new trial are valueless and raise no point for appellate consideration, that we do not think it necessary to reiterate the reasons upon which that conclusion is based. Those in need of information upon that point may consult State v. Scott, 214 Mo. 257, 113 S.W. 1069; State v. Mann, 217 S.W. 67, and the authorities there cited.

We will, therefore, rule specifically upon such matters in this motion as, upon a careful reading of the record, approximating five hundred typewritten pages, may appear to us to be worthy of separate mention, and as to the remainder, content ourselves with the general statement that we find them devoid of merit.

I. The record discloses that, contrary to the grounds assigned in the motion for a new trial, the verdict is not against the law, nor against the evidence, nor against both the law and the evidence, nor against the weight of the evidence, nor lacking in substantial evidence to support it, nor is the verdict, so far as this record discloses, the result of passion or prejudice, and appellant's demurrer to the evidence was, therefore, properly overruled.

II. The eight instructions given in behalf of the State, all of which are assailed in the motion for a new trial, are in time-honored form and follow oft-approved precedents. Of these instructions those numbered six, seven and eight are specifically questioned by appellant, but the criticisms urged against them are, we think, hyper-technical. Instruction numbered six is the usual instruction with reference to the weight and credibility of the evidence, and has been approved time out of mind. [State v. Shelton, 223 Mo. 118, 122 S.W. 732.] Instruction numbered seven, relating to the presence or absence of motive, was expressly approved in the noted case of State v. Duestrow, 137 Mo. 44, 38 S.W. 554, and has been approved in many subsequent cases in substantially the form in which it was given in this case.

Instruction numbered eight is to the effect that if the jury found from the evidence that any statements made by the accused were not voluntary, then the jury should disregard such statements. The criticism is, in effect, that the word voluntary was not defined. No definition was necessary, but if appellant desired that such a definition should be given it was his duty to ask the court by its instructions to define that term. This he did not do, and he cannot now be heard to complain. While it is the duty of the court in criminal cases to instruct the jury, whether requested to do so or not, it is not error for the court to fail to instruct upon matters which are in their nature purely collateral or incidental. The duty to instruct the jury in writing is a duty arising from a statutory command, and the statute (Sec. 5231, R. S. 1909) only requires instructions to be given to the jury upon matters "which are necessary for their information in giving their verdict." Questions relating to good character (State v. McNamara, 100 Mo. 100, 13 S.W. 938), testimony of accomplices (State v. Weatherman, 202 Mo. 6, 100 S.W. 482) and similar matters are collateral in their character (State v. Lackey, 230 Mo. 707, 720, 132 S.W. 602), and so, we think, was the definition of the word "voluntary" in this instance. It follows that there was no error in the action of the trial court with respect to the eighth instruction in this case. For the same reason there was no error in the failure to instruct with reference to the purpose of the admission of certain evidence.

III. Error is also asserted in refusing to give instruction marked D-2 in behalf of appellant. This instruction reads as follows:

"You are instructed that the State has not shown that the deceased had in her possession any money at the time of her death, nor that any robbery was committed in connection with her death, nor is there any proof that the money found upon the person of the defendant at the time of his arrest had ever belonged to the deceased or been in her possession during her lifetime.

"You are therefore instructed and directed to disregard all testimony offered by the State on the subject of the financial condition of the deceased and you are further instructed to disregard all testimony showing the possession of any money by the defendant subsequent to the death of the deceased."

This instruction was properly refused for the reason that it was directly contrary to the facts shown by the evidence, and to proper and legitimate inference to be drawn from the...