The State v. Parr
| Decision Date | 22 December 1922 |
| Parties | The STATE v. GEORGE V. PARR, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court. -- Hon. J. W. McElhinney Judge.
Affirmed.
Hudson & Hudson, for appellant.
(1) The court erred in allowing the State to offer testimony concerning the movements of Willis Millard after the death of Conrey and after Parr and Burke had been placed under arrest by Corner, for if the conspiracy existed it had been accomplished and ended with the killing of Conrey. State v. Shout, 263 Mo. 360; State v Babbitt, 242 Mo 273; State v. Beaucleigh, 92 Mo. 490. (2) The confession alleged to have been made by the defendant herein to the police was not voluntary, and was obtained, if obtained at all, through the exercise of the third degree. State v. Ellis, 242 S.W. 952. (3) The court erred in permitting the State to introduce a purported 32 caliber bullet, which they alleged was cut from the frame work of the Ford machine in which Conrey was riding, when it was shown that the bullet was not found until late the next day and it was shown that the machine had been left unguarded from the time of the killing until the bullet was extracted. (4) The court erred in refusing to give the instruction asked for by the defendant at the close of the State's case, as no conspiracy was proven. State v. Porter, 199 S.W 161; State v. Austin, 183 Mo. 478. (5) The court erred in not giving the instruction asked for by defendant at the close of the whole case, as the evidence was of such a nature that the court should have decided as a matter of law that no conspiracy existed. (c) Instruction five should not have been given because it is not supported by the evidence, as there was no evidence of conspiracy or that Parr aided or abetted or encouraged Millard in any manner. State v. Porter, 199 S.W. 161. (7) Instruction eleven is not responsive to the issues and is totally erroneous. This instruction is so arranged that, while seeming to favor defendant, it caused the jury to believe appellant Millard and Burke (who was not indicted), were guilty of a conspiracy to kill Conrey, which makes the instruction broader than the pleadings. (8) Instruction D-3 should have been given by the court on behalf of the defendant because of the testimony of Burke. (9) Defendant was entitled to the instructions asked for by him as it was the duty of the court to allow the defendant to present his theory of the case to the jury. Instruction D-6 should have been given as it was a question for the jury whether or not Parr had a weapon with him or knew the parties who approached were officers, and the conspiracy not having been proven in such a manner as to overcome the presumption in defendant's favor, and this instruction is bottomed upon the testimony of the defendant. State v. Webb, 205 S.W. 187; State v. Douglas, 258 Mo. 291. (10) Defendant should have been granted a new trial because the prosecuting attorney failed, neglected and refused to use David Burke, Sidney McKay, John Wm. McKay and Edith Callem in the trial of the case, and with the exception of David Burke the names of the witnesses were not known to defendant, and had their testimony been before the jury there is no doubt but what it would have resulted in the acquittal of this defendant. 12 Cyc. 571.
Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.
(1) Testimony tending to show that a co-defendant killed a second officer immediately after he killed the one for which appellant was being tried was competent. State v. Hyde, 234 Mo. 226; State v. Spaugh, 200 Mo. 594; State v. Tatman, 264 Mo. 357, 371; State v. Sherman, 264 Mo. 374, 382; State v. McKee, 28 Fed. Cas. No. 15,685; Commonwealth v. Kelly, 186 Mass. 403; People v. Becker, 215 N.Y. 126; 2 Wharton's Crim. Ev. sec. 702; State v. Sanders, 76 Mo. 36; 16 C. J. 141. (2) The statement made by appellant to the police officers was a voluntary one and evidence as to what appellant said was properly admitted. State v. Moore, 160 Mo. 460; State v. Jones, 171 Mo. 406; State v. Stebbins, 188 Mo. 387, 396; State v. Barrington, 198 Mo. 23, 109. (3) It was not error to permit proof of a statement made by the defendant without first proving that he had entered into a conspiracy with another to commit the crime. Sec. 3687, R.S. 1919; State v. Orrick, 106 Mo. 111; State v. Gos, 235 Mo. 307, 323. (4) The prosecution is not required to call all the eyewitnesses to a crime. 28 R.C.L. par. 175, p. 584. (5) Proof of a conspiracy may be made though the indictment does not charge a conspiracy. State v. Kennedy, 177 Mo. 98, 118; State v. Carroll, 232 S.W. 701; State v. Sykes, 191 Mo. 62, 78; Section 3687, R.S. 1919; State v. Orrick, 106 Mo. 119. (6) The instructions given at the request of the State were proper and in approved form. State v. McCarver, 194 Mo. 717, 727; State v. Todd, 194 Mo. 377, 388; State v. Darling, 199 Mo. 168, 182; State v. Orrick, 106 Mo. 119; State v. Valle, 164 Mo. 551; State v. McGinnis, 158 Mo. 121; State v. Bobbitt, 215 Mo. 10, 39; State v. Howell, 117 Mo. 307, 320; State v. Taylor, 134 Mo. 109, 150. (7) A jury is not required to find that a person must have done the actual shooting which resulted in deceased's death before he can be convicted of murder. State v. Herman, 117 Mo. 637; State v. Orrick, 106 Mo. 119; State v. Gow, 235 Mo. 307, 323; State v. Reeves, 276 Mo. 339, 346.
Appellant and Willis Millard were jointly indicted by the grand jury of St. Louis County charged with murder in the first degree in having killed Eugene S. Conrey. A severance was granted the appellant, who upon a trial was convicted as charged and his punishment fixed at imprisonment in the penitentiary for life. From this judgment, he appeals.
The evidence for the prosecution was largely circumstantial. Appellant, Willis Millard, a co-indictee, and David Burke were in an automobile in the town of Clayton at about midnight, August 30, 1920. Eugene S. Conrey and Benjamin Corner, two deputy sheriffs, attempted to drive by the car in which the defendants and others were seated, when a command was issued for some persons to throw up their hands. This was followed by a declaration in a loud tone of voice, "You've got the wrong man this time." A volley of shots followed, and the same voice said, "You are under arrest." Then there were three other shots, and a commanding voice said: "Get out of the car, every one of you." These facts were testified to by residents of the immediate neighborhood, who heard the shots and voices before they saw the automobiles. The first command given was in a different tone of voice to that which said "you've got the wrong man this time." The latter statement was followed in the same tone of voice by the declaration "you are under arrest, get out of that car, every one of you." In the interchange of shots Millard was wounded and fell, part of his body lying in the car and the remainder on the running board. Immediately after he fell, his companions, Burke and the appellant, complied with the command of the deputies and went to Conrey. He searched Burke, and told Corner, the other deputy, to take them up the hill. Corner started with the men in a westerly direction. A voice was heard saying, "Come on, there are two dead now." After they had gotten a short distance away, a witness who was in a near-by residence saw a man coming from towards the automobiles, skulking along some distance behind them and dodging from tree to tree. He was identified as Millard. After he passed in the direction taken by Corner and the two men under arrest, two shots were heard in that direction. Corner ordered the prisoners into a lawn, sank down by the side of a house and expired from a pistol wound in the back. While this was happening one of the citizens of the neighborhood went to the automobiles. He saw Conrey's body lying at the head of the officers' automobile, made an examination of it and found that he was dead from a pistol wound. As he rose from examining the body, Millard approached him with a drawn pistol and inquired what all this meant. He stepped backwards with his pistol drawn on the citizen, took the driver's seat in the automobile he and the others had occupied, and rode rapidly away. Other officers came and pursued him. They ordered him to halt, but he jumped out of the car while it was in motion and disappeared in the shrubbery of Forest Park. The next morning he was found in University City suffering from a gun-shot wound. In the abandoned automobile was found a pistol.
Conrey was shot with a thirty-eight caliber bullet. Millard was shown to have been the only person at the scene of the crime who had that sort of a weapon. A number of shots were fired at officers Conrey and Corner. The Ford automobile in which the officers had ridden to the place where Conrey was shot had a number of bullets and bullet holes in it. From one of the bows at the top of the automobile a thirty-two caliber bullet was extracted, This bullet was shown to have been fired from a Colt's revolver. Appellant stated that he had in the automobile a thirty-two caliber Colt's revolver. Burke had no weapon.
A statement made by appellant was offered in evidence, in which he denied the shooting, but admitted that he had a pistol at the time. The material parts of this statement are to this effect; that he and Burke and Millard were out riding in St Louis County the night of the shooting. Burke was driving the car, Millard sat by the side of Burke, and the appellant sat on the back seat. They had engine trouble and stopped. Another machine pulled up in front of them and a man said, "Hands up, we are police officers," and showed his star. Someone behind ...
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