The State v. Hillebrand

• Decision Date: 13 December 1920
• Citation: 225 S.W. 1006,285 Mo. 290
• Parties: THE STATE v. HAROLD J. HILLEBRAND, Appellant
• Court: Missouri Supreme Court

225 S.W. 1006

285 Mo. 290

THE STATE v. HAROLD J. HILLEBRAND, Appellant

Supreme Court of Missouri, Second Division

December 13, 1920

Appeal from St. Louis City Circuit Court. -- Hon. Vital W. Garesche Judge.

Reversed and remanded.

Thomas B. Harvey for appellant.

(1) Prejudicial error was committed by the assistant circuit attorney in stating in his opening argument to the jury that "there was a lot of other acts that he could have mentioned that would have brought him back here just as quick as this one did," "and why should he single out something as he claims he did not do when there was things that you know and I know that he did do that would have brought him back here;" and in his closing argument appealing to the passion and prejudice of the jury in charging that the defendant was wearing a fresh U. S. uniform of a soldier to arouse their sympathy; that "he had disgraced one and now he wanted to disgrace another," and that he (the assistant circuit attorney) "don't believe that he is in the Army now." State v Prendible, 165 Mo. 358; State v. McDonough, 232 Mo. 230; State v. Rose, 178 Mo. 37; State v. Hess, 240 Mo. 160; State v. Edmundson, 218 S.W. 867. (2) The court erred in its rulings as follows: (a) In overruling the defendant's objection to his cross-examination regarding the alleged robbery by him of Peeler's drug store long subsequent to and not connected with the alleged murder on trial, and in regard to which the defendant had not testified in his direct examination. (b) And in not censuring the assistant circuit attorney for repeatedly interrogating witnesses regarding an alleged shooting of a man named Bock, to which examination the court had sustained an objection. (c) In overruling objections by the defendant to suggestions by the State's counsel in his cross-examination of witnesses, that the defendant and his wife had been engaged in the "holdup" business. (d) And in overruling defendant's objection to statement of the State's counsel in his closing argument to the jury that he knew of "a lot of other acts" done by the defendant which would have brought him back from the army to St. Louis "just as quick" as did this murder charge. State v. Duff, 253 Mo. 422; State v. McBrien, 265 Mo. 612; State v. Helton, 255 Mo. 183; Sec. 5242, R. S. 1909; State v. Grant, 144 Mo. 56; State v. Kyle, 177 Mo. 659; State v. Hathorn, 166 Mo. 229. (3) If the court regarded the prejudicial inquiries of collateral and disconnected acts by the defendant as being competent for a certain purpose, the consideration of it by the jury should have been limited to that purpose by an appropriate instruction. State v. Jones, 249 Mo. 98; State v. Wellman, 253 Mo. 319; State v. Phillips, 233 Mo. 306; State v. Weeden, 133 Mo. 84.

Frank W. McAllister, Attorney-General, H. P. Ragland and C. P. LeMire, Assistant Attorneys-General, for respondent.

(1) The argument of the assistant circuit attorney of which the appellant complains does not constitute such error as to warrant a reversal of this case. State v. Topalovacki, 213 S.W. 104; State v. Drew, 213 S.W. 107; State v. Harrison, 263 Mo. 642; State v. Prince, 258 Mo. 328; State v. Smith, 250 Mo. 369. (2) The court did not err in overruling objections of counsel to certain questions asked defendant on cross-examination. (a) The questions were based on and invited by matters brought out in his examination in chief. State v. Ivy, 192 S.W. 736; State v. Cushenberry, 157 Mo. 182; State v. Farrar, 146 Mo. 288; State v. Shearon, 183 S.W. 294. (b) Even if said questions were improper this case should not be reversed on that account for the reason that some were not answered; some were answered before any objection was interposed, and no direct or prejudicial answer was elicited in reply to any of said questions. State v. Fisher, 162 Mo. 172; State v. Jackson, 194 S.W. 1078.

MOZLEY, C. Railey and White, CC., concur.

OPINION

MOZLEY, C. --

The grand jurors of the City of St. Louis, Missouri, on October 4, 1918, returned an indictment against Harold J. Hillebrand, wherein he was charged with having killed one Sam Brown under such circumstances as to constitute murder in first degree, and the homicide was alleged to have been committed "feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought."

Defendant was duly arraigned, entered a plea of not guilty, and, on April 8, 1919, was tried, and the jury returned the following verdict:

"We, the jury in the above entitled cause, find the defendant guilty of murder in the first degree, as by the indictment he stands charged, and assess his punishment at imprisonment in the penitentiary for his natural life."

Motions for new trial and in arrest of the judgment were filed and overruled, and the cause was duly appealed.

Defendant was a resident of the City of St. Louis and, about one month after deceased was held up and killed in an attempt to rob him, defendant enlisted in the army and was stationed at Camp Funston and while there wrote the following letter to the Chief of Police of St. Louis:

"Chief of Police,

"Dear Sir;

"As I expect to leave here in the next two weeks I will tell you that I am one of the fellows that held up and shot that shoe-dealer at Whittier and Page on a Saturday night. I heard he died . . . I am telling you this as the truth from me, as I don't want any other guy held that is innocent."

A member of the police force went to Camp Funston and in connection with an army officer took a written confession from defendant, going a little more in detail as to how the act was performed, but agreeing with the statements contained in the letter.

Defendant was brought back to St. Louis and at once denounced his confession as a lie, denied that he killed or aided in the killing of Brown, and assigned as reason for the course he had pursued that he was going within two weeks to be sent to France; that he was unable to get a furlough, and had adopted that method to be brought home, so that he could see his mother before going across.

Further facts will be adverted to hereafter.

I. Defendant demurred to the State's evidence, which was overruled, and we think properly so. The facts in evidence make it a jury case and we overrule this assignment.

II. Defendant urges that the court erred in defining and instructing on murder in the first degree, because the word "feloniously" is omitted therefrom.

Of Instruction No. 1 we set out that part which we understand relates to defendant's contention:

"Bearing in mind these definitions, the court instructs the jury that, if they believe and find from the evidence that the defendant Harold J. Hillebrand, at the City of St. Louis and State of Missouri, at any time prior to the finding of the indictment herein, wilfully, deliberately, premeditatedly and of his malice aforethought, shot and wounded with a revolver one Sam Brown, and that within a year and a day thereafter, to-wit, on the 16th day of March, 1918, Sam Brown died from the effect of such shooting and wounding, they will find the defendant guilty of murder in the first degree, and so say in their verdict, and unless they find the facts to be as stated in this instruction they will acquit the defendant of murder in the first degree."

The term "feloniously" is necessary to be used in an information or indictment in murder in the first degree as a word of classification of the offense charged. It is neither a definition nor part of the crime and need not be used in an instruction. [State v. Jenkins, 213 S.W. 796; State v. Smith, 250 Mo. 350, 157 S.W. 319; State v. Helton, 234 Mo. 559, 137 S.W. 987; State v. Cummings, 206 Mo. 613, 105 S.W. 649; State v. Scott, 109 Mo. 226, 19 S.W. 89; Kelly's Crim. Law (3 Ed.), sec. 390, p. 339.]

In the following cases, which were murder cases, instructions that omitted the word "feloniously" were upheld by this division of the court: State v. McCarver, 194 Mo. 717, 92 S.W. 684; State v. Hottman, 196 Mo. 110, 94 S.W. 237.

In State v. Scott, supra, it was held that "the word 'feloniously' is but descriptive of the grade of the offense, and need not be used in the instruction, or if used need not be explained."

To the same effect are all the authorities above cited.

We conclude that the assignment is without merit and overrule it.

III. Defendant contends that the court erred in improperly declaring the law as to his defense of alibi. The instruction on this feature of the defense reads as follows:

"The defendant has interposed for a defense what is known as an alibi, that is, that even if the crime was committed, as charged, he was at the time of the commission thereof at another and different place than that in which such offense was committed, and, therefore, was not and could not have been the person who committed the same. Now, if the evidence leaves in your mind a reasonable doubt as to his presence at the place where the offense was committed at the time of the commission thereof, you will find him not guilty."

We think this instruction is well enough and overrule the assignment. [State v. Bonner, 259 Mo. 342, 168 S.W. 591; State v. Barton, 214 Mo. 316, 113 S.W. 1111; State v. Cushenberry, 157 Mo. 168, 56 S.W. 737; State v. Glasscock, 232 Mo. 278, 134 S.W. 549; Inst. to Juries, p. 517, par. 454.]

IV. Defendant contends that the court erred in failing to instruct the jury upon the sufficiency and relevancy of the confession of defendant and of the weight to be given a confession when made under the circumstances in this case. No authorities are cited nor reasons assigned why the instruction is supposed to be erroneous. We have carefully read it, and think there is no merit to the assignment, and overrule it.

V. Defendant alleges that "...