The State v. Peak

• Decision Date: 18 February 1922
• Citation: The State v. Peak, 237 S.W. 466, 292 Mo. 249 (Mo. 1922)
• Parties: THE STATE v. GEORGE PEAK, Appellant
• Court: Missouri Supreme Court

237 S.W. 466

292 Mo. 249

THE STATE v. GEORGE PEAK, Appellant

Supreme Court of Missouri, Second Division

February 18, 1922

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

Affirmed.

Thos J. Rowe, Jr., and Ferris & Rosskopf for appellant.

(1)The court erred in giving Instruction 1.(a) It unnecessarily and erroneously includes a definition of "deliberately."This is a prosecution for a homicide committed in the perpetration or attempt to perpetrate robbery, and deliberation is not an essential element of that crime.R. S. 1919, sec. 3230;Kelley's Criminal Law(3 Ed.), sec. 486, p. 431;State v Garrett,276 Mo. 302;State v. Carroll,232 S.W. 699.(b) The evidence supports no theory of homicide except that committed in the perpetration or attempt to perpetrate robbery, and said instruction does not present that theory, or include that form of homicide in defining murder in the first degree.(c) The definition of "deliberately," even if permissible in ordinary cases, which we do not admit, contains surplusage in the language, "in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful purpose," and said surplusage is confusing and misleading as applied to the evidence in this case, which touches upon the purposes to kill, to rob, to sell whisky.State v. Davis,226 Mo. 515;State v. Bobbst,269 Mo. 225;State v. Duestrow,137 Mo. 67.(2)The court erred in giving Instruction 2 for the reason that said instruction does not define the term "robbery," a definition necessary in describing the offense of homicide committed in the perpetration or attempt to perpetrate robbery, and necessary for the information of the jury.State v. Nichols,222 Mo. 434;State v. McCaskey,104 Mo. 648.(3)The court erred in giving Instruction 2a, whereby the court submitted to the jury for determination the question of the admissibility of the alleged dying declarations.It was the duty of the court, not the jury, to determine the fundamental facts authorizing the admission of dying declarations in evidence.The failure of the court to exercise its function in that respect was reversible error.State v. Zorn,202 Mo. 31;State v. Wilks,213 S.W. 118;State v. Gow,235 Mo. 326;State v. Johnson,118 Mo. 491.(4)The court failed and refused to instruct the jury upon the law applicable to the facts in evidence which supported defendant's defense and his theory of the case.The court thereby erred in failing to instruct the jury in writing upon all questions of law arising in the case which were necessary for their information in giving their verdict.R. S. 1919, sec. 4025;State v. Weinberg,245 Mo. 575;State v. Starr,244 Mo. 161;State v. Conway,241 Mo. 284;State v. Douglass,258 Mo. 281;State v. Bidstrup,237 Mo. 285;State v. Coff,267 Mo. 21;State v. Partlow,90 Mo. 626;State v. Brown,104 Mo. 365;State Nichols, 222 Mo. 434.(5)The court erred in permitting the names of witnesses Curtis and Kirk to be indorsed on the information after the trial began, and erred in permitting them to testify upon the trial, and erred in not striking out the testimony of Kirk on motion of the defendant.State v. Barrington,198 Mo. 23;State v. Nettles,153 Mo. 464.(6)The court erred in admitting evidence of the alleged dying declarations.No legal foundation was laid for their admission.Madison was not mentally capable of making a statement.He was not under the impression of impending and immediate death and without hope.The declarations and statements attributed to him were incomplete and indefinite, and were extracted from him by undue urgency.It is apparent he was not accurately quoted.The alleged statements made at Madison's home did not identify defendant as the guilty party with sufficient certainty, and those made at the hospital were apparently untrue.State v. Johnson,118 Mo. 491, 501;State v. Colvin, 226 Mo. 446, 481.

Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.

(1)The court did not commit error in permitting names of witnesses, Kirk and Doctor Curtis, to be indorsed upon the information, and in permitting said witnesses to testify.These names were so indorsed on the information before the jury was sworn to try the case.Defendant's plea of not guilty was not withdrawn and no motion to quash or for a continuance was filed.Defendant, before making objections, announced ready for trial.The fact that a witness's nams is not indorsed on the information does not render his testimony incompetent.State v. Stiefel,106 Mo. 129;State v. Nettles,153 Mo. 464;State v. Barrington,198 Mo. 23;State v. Robinson,263 Mo. 318;State v. Kehoe,220 S.W. 961.(2) The declaration of the deceased, made shortly prior to his death to witnesses Kirk, Doctor Curtis and Nannie Madison, were properly admitted.(a) It appears that deceased believed he was about to die when he made the statements.State v. Lewis,264 Mo. 420;State v. Colvin,226 Mo. 446;State v. Kelleher,201 Mo. 614;State v. Nelson,101 Mo. 464;State v. Draper,65 Mo. 335.(b) The cause of declarant's death was the subject of the declaration.State v. Lewis,264 Mo. 420;State v. Horn,204 Mo. 528;State v. Spivey,191 Mo. 87;State v. Parker,172 Mo. 191;State v. Draper,65 Mo. 335.(3)The court did not commit error in giving Instruction 2a.State v. McMullin,170 Mo. 625.(4) The instructions given covered every legitimate aspect of the case and left nothing to be desired.Those refused defendant were properly refused, either as not correctly stating the law or as being covered by those previously given.

WALKER, J. David E. Blair, J., concurs in result.

OPINION

WALKER, J.

Appellant was charged by information in the Circuit Court of the City of St. Louis with murder in the first degree, and upon a trial was convicted and sentenced to imprisonment in the penitentiary for life.From this judgment, he appeals.

The appellant and one Hardamon went, about eight or nine o'clock of the night of the crime, to the place of business of the deceased on Nineteenth and Market streets in the city of St. Louis.Hardamon entered and told the deceased that the appellant had nine cases of liquor which he would sell to him if taken that night.The deceased agreed to buy it, and Hardamon went out and brought in the appellant, and it was agreed that the deceased would buy the liquor.Hardamon then left, and the other two continued the conversation.

Appellant and the deceased made an estimate of the total amount that would be due for the liquor at the price agreed upon and soon thereafter the appellant left, saying that about half past ten that night he would return and accompany the deceased to the place where the liquor was to be delivered.Appellant returned at about ten o'clock p. m., and the partner of the deceased, in the presence of the appellant, counted out and delivered to the deceased the necessary money, $ 423, to pay for the liquor.The deceased then called up two employees, or associates, of his in another business and asked them to come to his place with an automobile truck to convey him and the appellant to where the liquor was to be delivered.The truck was brought, and the deceased, the appellant and the two others entered it and went away together.When they reached the corner of Marcus Avenue and Lewis Place, the appellant and the deceased alighted from the truck and went across Lewis Place, leaving the two others in the truck.Soon thereafter the latter heard appellant, deceased and, possibly, others talking about the whiskey and its location, when three shots were heard.Watson, one of the persons left in charge of the truck and who was at the wheel, drove it to the north side of Lewis Place in the direction from whence the sounds of the shots had come, when the other employee, Neal, discovered the deceased, and upon reaching him said: "Are you shot?"To which the latter replied: "Yes, I am shot all to pieces."Just before the inquiry and immediately following the shots, three men were seen running away from the scene.The appellant did not return to the truck and was not seen that night by either of the persons who had been left in charge of the truck.As the deceased was being taken to his home, he repeated that he was shot all to pieces and said that his assailants had taken his gun from him.A physician was called immediately upon the arrival of the deceased at his home.When the physician reached the deceased, he found that deceased was suffering from three gunshot wounds; each had entered below the navel, passed through the abdominal cavity and came out through the back.The physician told the deceased that he was in a serious condition and suggested if he desired to make a statement, he should do so.The deceased said: "Am I going away?"To which the physician said: "I do not know.There is some chance for you, but whatever statement you want to make or business you have to attend to, you had better see to it before you go to the hospital."Deceased replied "If I am going to die, that is all right.I don't mind it.I know I am done for."After some conversation with his wife, who asked him why he didn't give up the money without resisting, he said: "It didn't come up that way."The physician then asked him: "Who were the men that shot you?"A revenue officer or a detective, present, interposed an inquiry which prevented the deceased from answering the physician, but he(deceased) said to the officer that the whiskey thieves shot him; and that he knew the man who rode out with him, but didn't know his name; that "Slick," his partner, "would know the name of the colored boy who brought the man to deceased's place before they started out."...