The State v. Kinnamon

• Decision Date: 28 May 1926
• Docket Number: 26449
• Citation: 285 S.W. 62,314 Mo. 662
• Parties: THE STATE v. EMMET KINNAMON, Appellant
• Court: Missouri Supreme Court

285 S.W. 62

314 Mo. 662

THE STATE v. EMMET KINNAMON, Appellant

No. 26449

Supreme Court of Missouri

May 28, 1926

Appeal from Cooper Circuit Court; Hon. Henry J. Westhues Judge.

Affirmed.

Elmer E. Martin and Dumm & Cook for appellant.

(1) The evidence is insufficient to support the verdict and to justify the conviction of the defendant. The demurrer offered and requested by the defendant at the close of the State's case should have been sustained. State v Frisby, 204 S.W. 3; State v. Larkin & Harris, 250 Mo. 234; State v. Crabtree, 170 Mo. 642; State v. Gordon, 199 Mo. 561; State v King, 174 Mo. 647; State v. Scott, 177 Mo. 665; State v. Francis, 199 Mo. 671; State v. Johnson, 209 Mo. 346; State v. Bass, 251 Mo. 107; State v. Tracy, 225 S.W. 1009; State v. Young, 237 Mo. 170; State v. DeWitt & Jones, 191 Mo. 51. (2) The court erred in permitting the witness Gray, defendant's alleged co-conspirator, to testify as to declarations made and acts done by him after the purpose of the alleged conspiracy had been accomplished, and in permitting the prosecuting attorney to ask said witness if he had not, at the time he pleaded guilty to the charge contained in the information, made certain statements and declarations connecting this defendant with the crime charged. State v. Frisby, 204 S.W. 4; State v. Forshee, 199 Mo. 144; State v. Schaeffer, 172 Mo. 335; State v. Flanders, 118 Mo. 227; 16 C. J. 656, 660; State v. Condit, 270 S.W. 286. (3) The State having called to the stand the witness Gray, it was error for the trial court to permit the prosecuting attorney, over the repeated objections of the defendant, to cross-examine said witness, the cross-examination being, in effect, an attempt by the State to impeach this witness before the jury. Having called Gray, defendant's alleged co-conspirator, as a witness and thereby vouched for him before the jury, the State had no right to attempt to impeach him. State v. Bowen, 263 Mo. 279; State v. Burks, 132 Mo. 373; 40 Cyc. 2559, 2560; State v. Hulbert, 253 S.W. 766; State v. Patton, 255 Mo. 245; State v. Drummins, 274 Mo. 647. (4) The court erred in permitting the prosecuting attorney, in his closing argument to the jury, over the objections and exceptions of the defendant, to refer to the failure of the defendant to testify in his own behalf. Sec. 4037, R. S. 1919; State v. Drummins, 274 Mo. 632.

Robert W. Otto, Attorney-General, and W. F. Frank, Assistant Attorney-General, for respondent.

(1) This case is here on the record proper. There is no bill of exceptions here because: (a) there is no record entry showing the filing of a bill of exceptions; (b) The bill of exceptions is not certified by the clerk. Appended to the bill below the signature of the judge is a certificate of the clerk, stating that the bill was filed on August 25, 1925. The record proper is silent on this point. Ricketts v. Hart, 150 Mo. 68; State v. Little, 248 S.W. 926; Bower v. Daniel, 198 Mo. 317; R. S. 1919, sec. 4103; State v. Riley, 228 Mo. 433. (2) Appellant's demurrer to the evidence was properly overruled. Evidence of a conspiracy, in the first instance, need only show, prima-facie, that the conspiracy existed. Thereafter the question of actual existence of a conspiracy is a question for the jury to determine. State v. Roberts, 201 Mo. 728; State v. Kolafa, 291 Mo. 347; State v. Bersch, 276 Mo. 414; State v. Hill, 273 Mo. 341; State v. Fields, 234 Mo. 627. The court did not err in permitting the witness Gray, appellant's alleged co-conspirator, to testify as to declarations made and acts done by him after the purpose of the alleged conspiracy had ended, because: (a) witness Gray did not testify to any such declarations made or acts done by him. (b) The facts and circumstances in evidence tend to show prima-facie a conspiracy. This being true, such evidence would be admissible, and the actual existence of such conspiracy would then be a question for the jury to determine. State v. Shout, 263 Mo. 374; State v. Bersch, 276 Mo. 414. (3) Appellant's complaint that the court erred in permitting the State over the objection of the defendant to cross-examine witness Gray, is also without merit, because (a) the cross-examination of which appellant complains was an effort by the prosecutor to show by the witness that he had made statements which directly contradicted his testimony given at the trial. The witness denied making any such statements. The witness's answers to such questions were favorable to defendant, and if error, in view of the answer, it was harmless. Kuenzel v. St. Louis, 278 Mo. 282; State v. Sloan, 274 S.W. 739. The witness was evasive and hostile to the State and leading questions, even cross-examination, was proper. The examination of a witness is always a matter largely in the discretion of the trial court. Landis v. Hawkins, 234 S.W. 827. (b) The State's offer to prove by witnesses Peters and Crawford that witness Gray had made statements which contradicted his testimony was excluded by the court; therefore appellant has no ground to complain.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

An opinion was filed in this cause at the last term in which we declined to consider the bill of exceptions for the reason that it appeared from the record that the motion for new trial was filed in vacation, and, finding no error in the record, the judgment of conviction was affirmed. It being subsequently shown by a corrected transcript that the motion was seasonably filed within four days after verdict, during a recess of the court (Maloney v. Mo. Pac. Ry. Co., 122 Mo. 106, 114, 26 S.W. 702; Shewalter v. McGrew, 60 Mo.App. 288, 289; Beckman v. Phoenix Ins. Co., 49 Mo.App. 604), the court of its own motion, in furtherance of justice, granted a rehearing.

The appellant and William Gray were charged with murder in the first degree for shooting and killing John Tritsch on November 12, 1923, in Cole County; Gray being charged as principal, and Kinnamon as an accessory before the fact. Gray entered a plea of guilty and was sentenced to imprisonment for life. Kinnamon was awarded a change of venue to Cooper County, where he was tried to a jury, found guilty and sentenced to life imprisonment, from which he appealed.

John Tritsch, the deceased, conducted a restaurant on West Main Street in Jefferson City, about three blocks west of the State Capitol, and across the street from the roundhouse of the Missouri Pacific Railroad Company, and was patronized by railroad employees. On pay days Tritsch cashed their pay checks, and kept money on hand for that purpose. November 12th was pay day, and Tritsch had cashed a number of these checks. At six P. M. the employees at the roundhouse had twenty minutes for their suppers at this restaurant. On the evening of November 12th, these employees having eaten and left the restaurant, William Gray, with a revolver in his hand and a handkerchief over the lower part of his face, entered the restaurant, saying, "Stick 'em up." Tritsch, it seems, did not take this seriously, but said, "If that is the way you are going to play, I can play too." Gray then shot Tritsch in the side, inflicting a wound from which Tritsch died November 14th. Gray took the money out of the cash register and left the restaurant. He was arrested that evening with the revolver in his pocket and $ 86.25 in cash on his person.

Kinnamon had lived for a short time in a tent at Osage City, a village eight miles east of Jefferson City, and followed the occupation of fishing. A few days prior to, and again on the afternoon of the day of the homicide, he and Gray had been seen together at Kinnamon's camp at Osage City. Kinnamon was in Jefferson City on the afternoon and evening of November 12th, and was seen by several persons in the vicinity of the restaurant after the homicide. He was arrested the following morning at Osage City. Gray, a boy of eighteen, came to Jefferson City in October, 1923 and was a comparative stranger. Kinnamon was little known. We quote from the statement of the Attorney-General:

"J. D. Coffelt testified that he resided at 221 East Main Street, Jefferson City, and boarded at the Tritsch restaurant; that on the evening of the killing he had just eaten supper, came out of the restaurant and started to town; that about one-half block from the restaurant he observed two men talking together. One answered to the name of Gray and one answered to the name of Kinnamon. As he got up within ten feet of them, one said to the other, 'That won't work,' and the other one said, 'Work, God damn it, it's got to work.'

"On cross-examination, this same witness said: Q. Which one said 'It can't be done?' A. Gray. Q. What did the other man say? A. He said, 'It won't work? Why God damn it, it's got to work.' Q. Then what did Gray say? A. He said, 'It will get us both in bad.' The Witness: 'Gray said something, but I didn't hear what was said, and then Kinnamon, he called him a yaller son of a bitch.'

"This witness further testified: Q. You recognized them at the preliminary that morning as being the two men you saw the night before? A. Yes, sir.

"This witness further testified that immediately after hearing this conversation he went on to the fire station, which was about five blocks, and when he arrived there he heard of the shooting.

"John Kremer testified that he was living in Osage City on November 12, 1923, and had lived there for several years; that a few days prior to the killing, he saw appellant and William Gray together in Osage City. 'I met appellant in Osage City the next morning after the killing and he said to me, "This boy took my smoker and went up there to Jefferson City and pulled off a stunt." He made this statement to me about eight or nine o'clock the next morning.'

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