The State v. Hembree
| Decision Date | 19 June 1922 |
| Parties | THE STATE v. GLENN HEMBREE and STOKLEY JACOBS, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied 295 Mo. 1 at 13.
Appeal from Butler Circuit Court. -- Hon. Almon Ing, Judge.
Affirmed.
Henson & Woody for appellant.
(1) There is no evidence in this record upon which to base the verdict of the jury, and defendants' motion for a new trial should have been sustained. State v. Hopkins, 278 Mo. 388; State v. Larkin, 250 Mo. 218; State v. Lentz, 184 Mo. 223, 243; State v. Scott, 177 Mo. 665; State v. Mahan, 138 Mo. 112; State v Marshall, 47 Mo. 378; State v. Williams, 186 Mo. 128. (2) The verdict of the jury finding defendant Jacobs guilty of murder in the second degree has no evidence whatever to sustain it. State v. Dipley, 242 Mo 461; State v. Ilgenfritz, 263 Mo. 613; State v. Ruckman, 253 Mo. 487; State v. Prendible, 165 Mo. 329; State v. Bass, 251 Mo. 107; State v. Rector, 126 Mo. 328; State v. Cox, 65 Mo. 29; People v. Farmer, 196 N.Y. 65. (3) The verdict of the jury as to Jacobs is in direct conflict with and contrary to the law as declared by the court, and should be set aside. R. S. 1919, secs. 4023, 4025, 4078, 1417, 1453; 27 R. C. L. 858; Payne v. Railroad, 129 Mo. 405, 421; 29 Cyc. 820 (G); Britt v. Aylett, 11 Ark. 475; Limburg v. Ins. Co., 57 N.W. (Iowa), 626, 630; Fleming v. Railroad, 148 Ala. 527; Stanfield v. Green, 54 Neb. 10; Refining Co. v. Instrument Co., 178 P. 111; Galbreath v. Mayo, 174 P. 517; Hauser v. Davis, 197 S.W. 693; Gartner v. Mohan, 163 N.W. (S. Dak.) 674. (4) It was error for the court to instruct the jury on the law of conspiracy, since there was no evidence in the record proving or tending to prove a conspiracy between defendants to kill deceased. State v. Porter, 199 S.W. 158; State v. Daubert, 42 Mo. 238; State v. May, 152 Mo. 135, 151. (5) Instruction number two is prejudicially erroneous because it permits the jury to return a verdict of guilty if they could reasonably and satisfactorily infer the existence of the elements which go to make up the crime. Guilt must be established beyond a reasonable doubt. Nothing else will suffice. State v. Wheaton, 221 S.W. 26; State v. Goldstein, 225 S.W. 911; State v. Bass, 251 Mo. 107. (6) Instruction number 11 refers the jury to the information to ascertain the elements of the crime, and not to the instructions, and is, therefore, erroneous. State v. Constitino, 181 S.W. 1155; State v. McCaskey, 104 Mo. 644; State v. Brown, 104 Mo. 365. (7) Instruction number 8, should have told the jury that, in weighing the testimony of the witness, they should take into consideration the character of the witness. It was especially necessary that they should do that in this case. State v. Shelton, 223 Mo. 118; State v. Martin, 230 Mo. 680. (8) Instruction number 12 should have permitted the jury to acquit either of the defendants if they entertained a reasonable doubt of guilt, and should not have required them to have a reasonable doubt of the guilt of both before they could acquit either.
Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.
(1) Where the evidence is conflicting, it is for the jury to weigh and give credit to or reject the testimony as they see fit. If the appellants' account of the tragedy should be given full credit, then the killing was justifiable, but the jury were the judges of the credibility of the witnesses and the weight to be attached to their testimony. There was substantial evidence tending to show the defendants guilty of the crime for which they were convicted, and this court will not interfere. State v. McKenzie, 177 Mo. 717; State v. Williams, 186 Mo. 135. (2) It is not necessary to prove a conspiracy by direct evidence; it may be shown by facts and circumstances in the case. Appellants were close and constant companions. Hembree admitted he did the shooting. Jacobs had made threats toward deceased; had been intimate sexually with the wife of deceased; when leaving the scene of the killing turned and went back for a few minutes; when leaving a second time, declared, upon inquiry of Mrs. Roark of what was the matter, offered deceased $ 20 to leave the country. All these facts and others pointed to Jacobs' guilt. State v. Walker, 98 Mo. 104; State v. Flanders, 118 Mo. 234; State v. Darling, 199 Mo. 199; State v. Fields, 234 Mo. 623; State v. Roberts, 201 Mo. 728; State v. Sykes, 191 Mo. 78. (3) The court is not limited to the testimony of the adverse party, but considers all evidence in the case in passing upon its sufficiency to sustain the verdict. State v. Meagher, 49 Mo.App. 576; State v. Martin, 230 Mo. 700; State v. Lackey, 230 Mo. 720. (4) This case was submitted to the jury on the theory that Hembree was the principal and that Jacobs was an aider and abettor. Under the instructions, taken as a whole, the jury was authorized to find Jacobs and Hembree guilty in the same degree. State v. Dalton, 27 Mo. 13; State v. Nelson, 98 Mo. 414; State v. Walker, 98 Mo. 95; State v. Ostrander, 30 Mo. 13. (5) Instruction 2, which appellants criticize as being insufficient, in that it does not inform the jury that defendant must be found guilty beyond a reasonable doubt, when taken with Instruction 12, which must be done, fully and correctly states the law, and is not erroneous. (6) Instruction 11 is on motive alone and is correct. The court defined the offense accurately and correctly, and told the jury that defendants were charged therewith in instruction number 1. This court did not decide that a similar instruction on motive in the Constitino Case, 181 S.W. l. c. 1157, cited by appellants, constituted reversible error. Therefore this case does not sustain their point. State v. McClaskey, 104 Mo. 648; State v. Constitino, 181 S.W. 1157. A similar instruction has been approved. State v. Bond, 191 Mo. 562. (7) Instruction 8 on credibility contains all the essential elements, and has been approved. State v. Bond, 191 Mo. 561. (8) The instructions cover all the law applicable to the facts. If appellants desired additional instructions they should have requested them. Having failed to do so, they cannot now complain. State v. Barnett, 203 Mo. 658. (9) Instruction 12 applies alike to each appellant, and the jury could not have been misled by its terms when it is taken with Instruction 7, as it must be.
David E. Blair, J., concurs in result.
Defendants were charged by information with murder in the first degree and convicted of murder in the second degree. After unsuccessful motions for a new trial and in arrest of judgment, they appeal. Their plea was self-defense.
It was charged that on the 26th day of February, 1921, in the County of Butler, they shot and killed one Charlie Board with a shot gun.
For the State, the testimony showed that both of the defendants resided at the village or town of Qulin in said county and that the deceased lived a few miles from there, on a slough or body of water, where he had a contract to clear a right-of-way for a drainage district; that a brother of the deceased and another were working for deceased on said right-of-way not far from the house where deceased lived; that the appellants appeared about ten o'clock in the morning and inquired of said parties if deceased were at home and being answered in the affirmative asked if they were sure of that fact. They proceeded to the home of the deceased, where they found him engaged in the performance of some chores about the house. Appellants remained at the home of the deceased until some time toward the middle of the afternoon. They ate their dinners with him. During their visit, various conversations were had as overheard by several witnesses. At one time the appellants and the deceased were negotiating with respect to a trade for one of two revolvers owned by the deceased and exhibited at the time. One was a large revolver without loads, a fact that was discussed, and particularly as it was of such a size that cartridges could not be conveniently obtained for it. This revolver was the subject of the negotiations. The smaller revolver was loaded.
Defendant Hembree carried a single-barreled shotgun and, during the visit, deceased used said gun in shooting at a can or some object, which one of the appellants had thrown in the air. The general attitude of the parties on the surface seemed to be one of friendliness.
In the course of the day, appellant Jacobs told deceased that there was a warrant out for him and, upon inquiry by deceased as to who held the warrant, said that one Owen Temples was responsible for it. At the same time he indicated to deceased that he should leave the community, and that he, Jacobs would give him $ 20 to aid him in his flight. Here it may be noted that Owen Temples was the former husband of the wife of the deceased; that deceased and his wife had been married less than two months, and that appellant Jacobs was an uncle of deceased's wife, and there was testimony indicating that the relations between Jacobs and the wife of the deceased had been intimate. Apparently no trade or exchange of property was effected between the parties, and the three left the house together, the deceased carrying his smaller pistol loaded and his larger pistol unloaded. The three came to the place where the deceased's brother, Elmer Board, and Jesse Roark were working on the right-of-way, as above stated, and after some conversation the appellants indicated a purpose to return to their home at Qulin and the deceased said that he must return to his own house, whereupon it was suggested that the three could go a...
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