The State v. Hart

• Citation: 237 S.W. 473,292 Mo. 74
• Parties: THE STATE v. EDMOND J. HART, alias EDDIE NEARY, Appellant
• Decision Date: 18 February 1922
• Court: Missouri Supreme Court

237 S.W. 473

292 Mo. 74

THE STATE v. EDMOND J. HART, alias EDDIE NEARY, Appellant

Supreme Court of Missouri, Second Division

February 18, 1922

Appeal from Jackson Criminal Court. -- Hon. Edward E. Porterfield Judge.

Affirmed.

Clarence Wofford and Bert S. Kimbrell for appellant.

(1) The court erred in admitting in evidence the alleged written statement of the defendant, for the reason that said purported statement was not his free and voluntary statement but was made under duress and through fear and compulsion. State v. Brockman, 46 Mo. 570; State v Jones, 54 Mo. 478; State v. Brown, 73 Mo. 631; State v. Patterson, 73 Mo. 695; State v Moore, 160 Mo. 461; State v. Keller, 263 Mo. 556; State v. Powell, 258 Mo. 250. (2) The court erred in permitting the assistant prosecuting attorney, over the objection and exception of the defendant, to say to the jury in the closing argument for the State: "I tell you the police when they undertake to apprehend these men take their lives in their hands, and I say that brave officer who sat on the stand yesterday took his life in his hands when he went to serve you people. When he struck that man he was grabbing for that gun. I don't think Phelan did what I would have done. I would have done worse than that. I would not have put my life against a man of that character. I would have killed him then. They have no right to live. They forfeit all their rights to live when they go about in the community committing that kind of crime." State v. Stegner, 276 Mo. 440; State v. Miller, 263 Mo. 336; State v. Schneiders, 259 Mo. 330; State v. Helton, 255 Mo. 182; State v. Webb, 254 Mo. 434; State v. Welman, 253 Mo. 316; State v. Brown, 247 Mo. 728; State v. Hess, 240 Mo. 158; State v. Dietz, 235 Mo. 341; State v. Ferrell, 233 Mo. 457; State v. McGrath, 228 Mo. 428; State v. Clancy, 225 Mo. 659; State v. Clapper, 203 Mo. 552; State v. Wigger, 196 Mo. 100; State v. Spivey, 191 Mo. 112. The court erred in refusing to reprimand Edward J. Curtin, assistant prosecuting attorney, at the request of defendant, for saying to the jury in the closing argument for the State: "Gentlemen of the jury, this case is going to pass to you twelve men now. Now you jurors may send out a warning or encouragement, whichever way you see fit. If there is any man on this jury that will stand for this sort of thing then I am disappointed in my fellow men." Authorities cited above. (4) The court erred in submitting the case to the jury upon the sole and only hypothesis that the defendant in person committed the felonious act charged, there being no evidence that defendant in person shot and killed the deceased. (5) Robbery is not defined; the jury were not instructed as to what in law constituted the perpetration, or the attempt to perpetrate, the offense of robbery; homicide is not defined; there was no evidence upon which to base the instruction, there being no evidence of the consummated offense and none of the attempt to perpetrate the offense. (6) The court erred in refusing to give to the jury at the request of defendant the following instruction: "The court instructs the jury that there is in this case no evidence that the deceased was shot and killed by the defendant. (7) The court erred in refusing to instruct the jury that "there is in this case no evidence that prior to the shooting of the deceased the defendant and another or others had entered into an agreement and conspiracy to rob the officials, employees or servants of the bank mentioned in evidence." (8) The court erred in refusing to instruct the jury that "there is in this case no evidence that deceased was shot and killed by one C. B. Johnson and no evidence that the defendant was present aiding, abetting and assisting said Johnson in the shooting and killing of deceased." (9) The court erred in refusing to instruct the jury upon the law of murder in the second degree, as requested by defendant. (10) The court erred in refusing to instruct the jury at the request of defendant upon the law of manslaughter. (11) The court erred in refusing to instruct the jury at the request of the defendant and over his exception thereto as to the law of circumstantial evidence. (a) As applied to the whole case. (b) As applied to the subject of an agreement or conspiracy to rob the officials or employees of the bank. (c) As applied to the subject of homicide in the attempt to perpetrate the offense of robbery. (d) As applied to the subject of the killing of the deceased in furtherance of a conspiracy to rob the officials or employees of the bank. State v. Moxley, 102 Mo. 375; State v. Crone, 209 Mo. 331; State v. Bobbitt, 215 Mo. 43; State v. Barton, 214 Mo. 323; State v. Hubbard, 233 Mo. 84; State v. Stegner, 276 Mo. 440; State v. Fitzgerald, 201 S.W. 86. (12) The court erred in refusing to instruct the jury as requested by defendant upon the law of self-defense, and as to the facts and circumstances under which defendant was deprived of or might lawfully exercise the right of self-defense under the testimony as developed. State v. Stephens, 96 Mo. 638; State v. Bidstrup, 237 Mo. 273; State v. Wilson, 242 Mo. 504. (13) The court erred in refusing to instruct the jury at the request of defendant as to the law of conspiracy as applied to the evidence in the case, and as to the facts which must be found by the jury before the defendant could be held criminally liable for the shooting and killing of the deceased by another or others. State v. Hockam, 95 Mo. 332; State v. Darling, 216 Mo. 450; State v. Lewis, 273 Mo. 518; State v. Hill, 273 Mo. 339. (14) There being no evidence that defendant in person committed the felonious act charged, the court erred in refusing to instruct the jury to find the defendant not guilty, at the close of all the evidence, as requested by defendant, the case not having been submitted to the jury upon the hypothesis that another or others shot and killed the deceased with defendant aiding, abetting and assisting, nor upon the hypothesis of a conspiracy to kill or rob and the killing of deceased by another or others in furtherance of such conspiracy. State v. Garrett, 276 Mo. 312; State v. Miller, 156 Mo. 86.

Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.

(1) The court did not commit error in admitting in evidence the written statement by defendant after he was arrested. Voluntary statements made by defendant at the time of his arrest are competent testimony, although he was not advised that he was under arrest, and although they were made in answer to questioning by the officer. State v Green, 229 Mo. 650; State v. Daly, 210 Mo. 664, 676; State v. Barrington, 198 Mo. 23, 109; State v. Wertz, 191 Mo. 569; State v. Schmidt, 137 Mo. 266; State v. Schmidt, 136 Mo. 645; State v. Elliott, 90 Mo. 350. (2) The court did not commit error in permitting counsel for the State to propound leading questions to Chief Phelan. The examination of witnesses and the manner and method of eliciting testimony in the trial of a case is largely in the discretion of the trial court, and unless it is manifest that this discretion is abused a judgment in the cause will not be disturbed upon that ground. State v. Wertz, 191 Mo. 587; State v. Whalen, 148 Mo. 290; State v. Napper, 141 Mo. 405; State v. Bateman, 198 Mo. 222; State v. Burgess, 259 Mo. 392. (3) Error was not committed by conduct of counsel in their argument to the jury. These arguments are sustained by the evidence, are within the record, legitimate and warranted by the facts and circumstances surrounding this case. State v. Rasco, 239 Mo. 581; State v. Hilton, 248 Mo. 534; State v. Johns, 124 Mo. 386; State v. Musick, 101 Mo. 273; State v. Zumbunson, 86 Mo. 111; State v. Hibler, 149 Mo. 484; State v. Summar, 143 Mo. 234. The complaint, if error, was cured by the action of the court in sufficiently reprimanding counsel. State v. Baker, 209 Mo. 450. (4) When murder is committed in the perpetration of the crime of robbery it is wholly unnecessary to do more than to make the charge in the ordinary and usual way for murder in the first degree, and then show the facts in evidence, and, if they establish that the homicide was committed in the perpetration of such robbery, this suffices. Sec. 3230, R. S. 1919; State v. Meyers, 99 Mo. 113; State v. Foster, 136 Mo. 655; State v. McGinnis, 158 Mo. 122; State v. Kennedy, 177 Mo. 119; State v. Collins, 181 Mo. 261; State v. Ruck, 194 Mo. 433; State v. Vaughn, 209 Mo. 20; State v. Bobbitt, 215 Mo. 33; State v. Carroll, 232 S.W. 702. (5) Appellant is not charged with the crime of conspiracy. He is charged with murder, and the conspiracy is only an incident. Sec. 3490, R. S. 1919; State v. Carroll, 232 S.W. 699. (6) The court did not commit error in the giving of instructions. Sec. 3230, R. S. 1919; State v. Barrington, 198 Mo. 96. (7) The court did not commit error in refusing to give instructions asked by defendant. These instructions were correctly refused, either upon the ground that the giving of them was not warranted by any evidence in the case, or upon the ground that the testimony upon which they were predicated was so inconsistent with the physical facts disclosed by the record as to justify the court in refusing them. State v. Vaughn, 200 Mo. 22. (8) The instructions on murder in the second degree and manslaughter were properly refused, as there was no evidence on which to base them. Sec. 3230, R. S. 1919; State v. Lewis, 273 Mo. 532; State v. Carroll, 232 S.W. 699; State v. Garrett, 276 Mo. 302, 312; State v. Rasco, 239 Mo. 582; State v. Vaughn, 200 Mo. 22. (9) The court did not commit error by refusing to instruct on the law of circumstantial evidence. It is only when conviction is sought on circumstantial evidence alone,...