The State v. McCullough

• Decision Date: 20 December 1926
• Docket Number: 27512
• Citation: 289 S.W. 811,316 Mo. 42
• Parties: The State v. Herbert McCullough, Appellant
• Court: Missouri Supreme Court

289 S.W. 811

316 Mo. 42

The State v. Herbert McCullough, Appellant

No. 27512

Supreme Court of Missouri

December 20, 1926

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Affirmed.

North T. Gentry, Attorney-General, and James A. Potter, Assistant Attorney-General, for respondent.

(1) The court did not err in failing to instruct the jury on the question of voluntary and involuntary statements and admissions. Sec. 4025, R. S. 1919. The statute does not require, and never was intended to require, the court to instruct the jury on collateral and incidental matters. State v. McNamara, 100 Mo. 107; State v Lackey, 230 Mo. 718; State v. Nicholas, 222 Mo 425. Defendant cannot complain of error in failing to instruct the jury upon a collateral matter when such instruction was not requested. State v. Barnett, 203 Mo. 658; State v. Bond, 191 Mo. 555; State v. McCarver, 194 Mo. 717; State v. West, 202 Mo. 128; State v. Albright, 144 Mo. 642; State v. Cantlin, 118 Mo. 111; State v. Vinso, 171 Mo. 591. (a) When Officer Thurman was offered as a witness, the defendant did not object to his testimony, nor did he request that the jury be excluded and that the court hear the evidence relating to the alleged admissions of the defendant. An admission of a defendant is always presumed to be voluntary, and the court properly admitted the testimony of Thurman. State v. Hayes, 247 S.W. 165; State v. Armstrong, 203 Mo. 559; State v. Thomas, 250 Mo. 210. The defendant did not testify directly that the alleged admission was extracted from him by reason of any threats or force or through fear of any personal injury. State v. Hayes, 247 S.W. 165. (2) Where there is any substantial evidence of the guilt the case is one to the jury. State v. Jackson, 283 Mo. 24; State v. Hascall, 284 Mo. 616. (3) The indictment in the case was in due and proper form. State v. Strada, 274 S.W. 34; State v. Reich, 293 Mo. 415. (4) The defendant failed to object or except to any instruction given by the court, hence the propriety of such instructions is not now open to review. However, the instructions given by the court were in the usual and approved form. State v. Cardwell, 279 S.W. 100; State v. Tipton, 271 S.W. 55; State v. Brown, 270 S.W. 275; State v. Ritter, 288 Mo. 385; State v. Boes, 262 S.W. 1019; State v. Williams, 274 S.W. 427; State v. Jackson, 267 S.W. 855.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On May 29, 1925, the grand jury of Jackson County returned into the circuit court of said county an indictment, which, omitting formal parts, reads as follows:

"The grand jurors for the State of Missouri, duly summoned from the body of said County of Jackson, being duly impaneled, sworn and charged to inquire within and for said county, upon their oaths present and charge that Herbert McCullough, whose Christian name in full is to the said grand jurors unknown, on the 16th day of May, 1925, at the County of Jackson and State of Missouri, in and upon one R. W. Claxton, whose Christian name in full is to the said grand jurors unknown, did then and there unlawfully and feloniously make an assault, and one Paige touring automobile, of the value of four hundred and fifty dollars, and $ 16.10 in good and lawful money of the United States, of the value of $ 16.10, of the aggregate value of $ 466.10, the money and personal property of the said R. W. Claxton, from the person and against the will of the said R. W. Claxton, and then and there by force and violence to the person of the said R. W. Claxton, and then and there by putting the said R. W. Claxton in fear of an immediate injury to his person, unlawfully and feloniously did rob, steal, take and carry away, against the peace and dignity of the State."

Defendant was arraigned, entered a plea of not guilty, was tried before a jury, and on July 22, 1925, the following verdict returned:

"We, the jury, find the defendant Herbert McCullough, guilty of robbery in the first degree as charged in the indictment and assess his punishment at five years in the State penitentiary."

Thereafter, in due time, defendant filed his motion for a new trial, which was overruled, allocution granted, judgment rendered, sentence pronounced in conformity with the verdict and an appeal allowed defendant to this court.

He is here without any brief, but counsel for respondent have made a full and fair statement of the facts as disclosed by the record, and we adopt the same as follows:

"The evidence in the case is very short and may be summarized as follows:

"The prosecuting witness, R. W. Claxton, lived in Kansas City, Kansas, but worked for the Frisco Railroad in Kansas City, Missouri. On the evening of May 16, 1925, Mr. Claxton drove his Paige car into Kansas City, intending to visit a friend near the intersection of Tenth Street and Lydia Avenue. When he had reached his destination and was in the act of parking his car at the curb, two men jumped on the running board on the right side of his car, one of them placed a gun at the neck of witness and, either he or the other man, ordered witness to continue to drive the car, at the same time applying an epithet to him and threatening to blow his brains out if he refused to proceed. The witness started his car forward and after driving a short distance, the two robbers got in the car, one of them occupying the front seat with the witness, and the other getting in the rear seat and holding a pistol at the neck of the witness. The witness positively identified the defendant as the one who rode in the front seat with him for a distance of some twenty blocks. During this ride the defendant took the sum of sixteen dollars and ten cents from the pockets of the witness. Upon arriving at or near Eleventh Street and Agnes Avenue, the two robbers ordered the witness out of the car and left him at that point, taking the automobile with them. During the ride the witness got several good looks at the defendant who was in the seat beside him. At the point where the robbers ordered the witness to get out of the car the witness stopped the car, but before doing so pulled the 'choker' so as to flood the carburetor and make it difficult for the robbers to start the car. This act of the witness delayed the starting of the car some five or six minutes, during which time the witness engaged in a conversation with the robbers, and with the aid of an arc light near by was enabled to get a good view of the defendant. Soon after the robbery the witness reported same to the police and gave a minute description of the defendant, including a description of his cap, necktie, shirt, coat, trousers and overcoat. A day or two later the defendant was arrested at Topeka, Kansas, and was returned to Kansas City by the Kansas City police. Upon his return to Kansas City some three or four days after the robbery, defendant was placed in the show-up room, where he was positively identified by the prosecuting witness, Claxton, as one of the men who robbed him. The testimony of the prosecuting witness was as direct and positive as it could possibly have been.

"The State also offered as a witness Officer B. H. Thurman, who made the trip to Topeka to return the defendant, and this officer testified that after defendant's return to Kansas City he admitted that he was guilty of robbing the witness Claxton.

"The defendant testified in his own behalf to the effect that his home was in the City of Omaha, Nebraska; that he was a barber by trade, and that work in his line was slack in Omaha, Nebraska, and he came to Kansas City on the 17th day of May, 1925 (the day after the robbery), for the purpose of working at his trade. He testified that he knew nothing about the robbery of Mr. Claxton. On cross-examination he admitted that he had served a term in the Nebraska reformatory under the name of Cehler, under a conviction for the crime of selling mortgaged property; that he had been out of the reformatory about three months prior to his visit to Kansas City on the 17th day of May, 1925.

"On re-direct examination, the defendant stated that after he was brought back to Kansas City about the 20th day of May, he was taken to the office of Officer Toyne, chief of the motor-theft bureau, where he was questioned concerning a number of robberies by the witness Thurman and officers Stewart and Ely, and Clerk Moore. He stated that these officers presented to him a book containing a long list of crimes committed in Kansas City, and insisted that the defendant had committed a number of these crimes. Defendant further testified that he denied the commission of said crimes, whereupon officer Ely told him that for every crime he denied he, Ely, was going to turn Officer Stewart loose on him; that Officer Stewart had in his hand at the time a piece of rubber hose and struck the witness with the rubber hose. He also testified that there was a black jack on the desk of Officer Ely and that Clerk Moore had a pistol in his pocket; that after an hour or more of questioning and threatening, the defendant finally said that he committed all the crimes mentioned in the police book.

"The court gave six instructions on its own motion. Defendant did not object to any instruction given by the court, nor did he request the giving of any instruction on behalf of the defendant or on any point not covered by the court's instruction."

Such other matters as may be deemed important will be considered later.

I. In paragraph three of his motion for a new trial, appellant contends that the "indictment does not state facts sufficient to constitute an offense." It is set out in full and speaks for itself. It meets with the requirements of Section 3307, Revised Statutes 1919, and, tested by repeated decisions of this court, is...