The State v. Murray

• Decision Date: 20 December 1926
• Docket Number: 27357
• Parties: The State v. Jack Murray and Edna Murray, Appellants
• Court: Missouri Supreme Court

292 S.W. 434

316 Mo. 31

The State v. Jack Murray and Edna Murray, Appellants

No. 27357

Supreme Court of Missouri

December 20, 1926

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

Affirmed.

Piatt & Marks, Rader & Rader and Paul S. Conwell for appellants.

(1) The court erred in permitting cross-examination of defendant Edna Murray on matters not gone into in her examination in chief. Sec. 4036, R. S. 1919; State v. Barker, 249 S.W. 78; State v. Conway, 145 S.W. 444; 1 Bishop's New Crim. Proc., sec. 1122; State v. Elder, 36 Wash 482; 28 R. C. L. 446; State v. Barrington, 198 Mo 71; State v. Lemon, 263 S.W. 186; State v. Mitchell, 229 Mo. 683; State v. McGraw, 74 Mo. 573; State v. Porter, 75 Mo. 171; State v. Shuster, 173 S.W. 1049; State v. Beckner, 194 Mo. 281; 26 R. C. L. 621, sec. 209; State v. Hyde, 136 S.W. 322; State v. Spivey, 191 Mo. 87; State v. Hillebrand, 255 S.W. 1009; Sec. 23, Art. II, Constitution of Missouri; State v. Tracey, 255 S.W. 1009; State v. Blackburn, 273 Mo. 482; State v. Wellman, 253 Mo. 302; State v. Sharp, 233 Mo. 269; State v. Edmundson, 218 S.W. 864; State v. Snow, 252 S.W. 629; Childress v. State, 86 Ala. 77; Martin v. State, 63 Miss. 505; People v. Montague, 71 Mich. 447; Latham v. United States, 226 F. 420. (2) The court erred in refusing to give Instruction "A" in the nature of a demurrer to the evidence on behalf of defendants at the close of the State's case in chief. State v. Hartnett, 75 Mo. 251; State v. Meyer, 64 Mo. 190; State v. Hughes, 71 Mo. 633; State v. McGrath, 73 Mo. 181; State v. Inman, 76 Mo. 548; State v. Britton, 80 Mo. 60; State v. Young, 99 Mo. 284; State v. Tracey, 225 S.W. 1009; State v. Bush, 118 S.W. 672. (3) The court erred in refusing to sustain motion for new trial because of the incompetence of Robert Nelson, a juror at the trial. Secs. 4009, 6680, R. S. 1919; 35 C. J. 143, sec. 9; 147, sec. 12; State ex rel. v. Slover, 134 Mo. 607; Isaac v. State, 2 Head (Tenn.) 458; Coppersmith v. Railway Co., 51 Mo.App. 357; State v. Poor, 286 Mo. 644; Lamphier v. State, 70 Ind. 317; Romaine v. State, 7 Ind. 63; State v. Whiteside, 49 La. Ann. 352; Ellis v. Territory, 13 Okla. 633; Baren v. State, 23 Tex.App. 28; State v. Thompson, 24 Utah 314; State v. Schneiders, 259 Mo. 319. (4) The court erred in giving instruction numbered 1 on behalf of the State. 30 C. J. 792, sec. 420 1/2; Haffner v. State, 187 N.W. 173; State v. Keithley, 127 S.W. 406; State v. Miller, 162 Mo. 253; Sinder v. United States, 288 F. 695; Sec. 4025, R. S. 1919; State v. Cantrell, 290 Mo. 232; State v. Conway, 241 Mo. 271; State v. Burrell, 252 S.W. 711; State v. Swarens, 294 Mo. 139; State v. Collins, 237 S.W. 519.

North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.

(1) The demurrer on behalf of Edna Murray was properly overruled. State v. Ma Foo, 110 Mo. 7, 19 L. R. A. 358. (2) Nelson is an American citizen and was competent to sit on the jury. United States v. Wong Kim Ark, 169 U.S. 649; Kohl v. Lehlback, 160 U.S. 293; Raub v. Carpenter, 187 U.S. 163. (3) Edna Murray, one of the defendants, testified on direct examination that she lived in St. Louis and was the wife of Jack Murray, co-defendant. On cross-examination, over the imperfect objection of the defendant, she was asked what other names than Edna Murray she had gone by and whether she had been married to "Diamond" Joe Sullivan and gone by the name of Edna Sullivan. This was not error. State v. Donnington, 246 Mo. 343; State v. Myers, 221 Mo. 598; State v. Lemon, 263 S.W. 186; State v. Stokes, 288 Mo. 554; State v. Glazebrook, 242 S.W. 931. (4) The argument of the prosecuting attorney did not constitute reversible error. State v. Baker, 262 Mo. 689; State v. Prunty, 276 Mo. 359; State v. White, 299 Mo. 599; State v. Sherman, 264 Mo. 384; State v. Hart, 237 S.W. 481; State v. McBride, 231 S.W. 594; State v. Williams, 274 S.W. 427. This court will not reverse a case for improper remarks made by a prosecutor before a jury unless it appears that the defendant has been prejudiced thereby. State v. Harvey, 214 Mo. 403; State v. Hibler, 149 Mo. 478; State v. Tracy, 294 Mo. 372; State v. Williams, 274 S.W. 427. (5) The remarks made by the trial court in the presence of the jury do not constitute reversible error since no objections were made by defendants' attorney they are not before this court for review. State v. Findley, 101 Mo. 217; York v. United States, 241 F. 656; People v. Silva, 227 P. 976; 16 C. J. 836, sec. 2111. (6) The court submitted the issues in the case under proper instructions. (a) Instruction 1 was correct. State v. Strada, 274 S.W. 34; State v. Affronti, 292 Mo. 53; State v. Daugherty, 302 Mo. 638. (b) So was Instruction 2. State v. Williams, 274 S.W. 427.

White, J. Walker, P. J., concurs; Blair, J., concurs in result and all except what is said as to wife's non-liability for crimes committed in presence of husband.

OPINION

WHITE

In the Circuit Court of Jackson County, October 1, 1925, the defendants were found guilty of robbery in the first degree and the punishment of each assessed at twenty-five years in the state penitentiary. The court rendered judgment in accordance with the verdicts, and both defendants appealed.

On April 6, 1925, one H. H. Southward was employed by Lerner Grocer Company. A part of his duty was to take the money of the company to the bank for deposit. On that day, about nine o'clock, he started with $ 112.50 in cash, and $ 83 in checks, intending to go to the Commerce Trust Company at the corner of Tenth and Walnut streets. He drove to that point in his Ford car, and was able to find a parking place behind the bank in an alley. As he drove into the alley he saw two men standing at the corner. A car was standing there also, either a Dodge or a Buick. Just after he stepped out of his car one of the men hit him in the back with something which he took to be a gun. They then picked him up by the trousers and threw him in on the floor of the car which stood there. A young woman sitting in the front seat of the car told one of the men to get the key and follow in Southward's car. He took Southward's key and followed in Southward's car. They drove down the alley, blindfolded the witness and drove around for about two hours, the defendant, Edna Murray, driving and the defendant, Jack Murray, sitting beside the witness. They drove close to the Sunset Hill Farm, near Dodson. There they robbed the witness, taking the money and checks. They took off his shoes and threw them into the car. The woman threatened that if he didn't give her more money she would fix him where he would not have any. They then drove away. The witness went to the first house, telephoned the police station, got a pair of shoes and came back to town. He could not run his car because the robbers had his key.

The State also introduced a surveyor who, when taken to the spot where the witness said he was robbed, by his measurements found the place to be in Jackson County.

The defense was an alibi. Edna Murray testified that she was the wife of Jack Murray, and accounted for the whereabouts of herself and Jack at the time of the robbery. Two or three other witnesses testified corroborating her statements, that the defendants were at home or elsewhere than the place where the robbery took place.

Defendant filed a motion for rehearing, containing forty-one assignments of error, the motion covering twenty-three closely printed pages, the same point being sometimes presented in a half dozen different forms. Some of these assignments are lengthy arguments. The real points relied upon are condensed by appellant in his formal assignment of errors in this court.

I. Several of the assignments in the motion refer to the alleged incompetency of one Robert Nelson, a juror. No objection was made to him in the voir dire examination. The court's attention first was called to him in the motion for a new trial. It is claimed that he was incompetent to serve because he was not a citizen of the United States, also because he had been discharged on the day previous from the regular panel on that account, and concealed that fact from the court when he was qualified. On the motion the court took evidence. The defendant introduced the record of his examination the previous day as to his qualification to sit in another case. His father was an Englishman who came to New York and married there; his mother was an American by birth and he was born in New York. Though in his childhood he lived a few years in England, he was in fact an American citizen. [United States v. Wong Kim Ark, 169 U.S. 649.]

Further, the appellant is not in position to question his qualification; Section 6608 provides that "no exception to a juror on account of his citizenship, non-residence, state or age or other legal disability shall be allowed after the jury is sworn." Under that section we have held that if a party fails to question a juror as to his qualifications, when the juror is examined upon his voir dire, it is too late to raise objection afterward. [State v. Wilson, 230 Mo. 647; Hart Realty Co. v. Ryan, 288 Mo. l. c. 196.]

Further, the only question asked of Nelson on his voir dire examination in this case was whether he knew of any reason why he could not serve as a juror. He answered "No."

When he was examined as to his qualifications, on the previous day in another case, he explained at length his citizenship, etc., and on the challenge of the defendant the court said: "Mr. Nelson you will be excused. I think that under our statute you would not be competent to serve, and Mr. Sheriff, you advise Mr. Tobin up there to excuse him from the general panel."

All there is in this statement is that he was...