The State v. Porter

• Decision Date: 23 December 1918
• Parties: THE STATE v. ED. PORTER, Appellant
• Court: Missouri Supreme Court

207 S.W. 774

276 Mo. 387

THE STATE v. ED. PORTER, Appellant

Supreme Court of Missouri, Second Division

December 23, 1918

Appeal from Cooper Circuit Court. -- Hon. Hopkins B. Shain, Judge.

Reversed and remanded.

John Cosgrove for appellant.

(1) There was nothing in the evidence that would have justified a conviction of murder in the first degree. It was therefore error to submit to the jury the question of murder in the first degree, although the appellant was convicted of murder in the second degree. State v. Minor, 193 Mo. 609. (2) This court reversed the judgment rendered against the appellant on a former trial for the reason, in part, that the instruction 3 brought the question of conspiracy into the case. State v. Porter, 199 S.W. 160. Instructions nine and ten given in this case used exactly the same language, excepting the word "conspiracy." There was no evidence tending even to show that there was any understanding or agreement or concerted actions between the appellant and Mills; there was no evidence that there was any deliberation or premeditation on the part of the appellant or that he had any knowledge or even suspicioned that Mills entertained or that he harbored any resentment towards the deceased. The conflict arose on the spur of the moment. Said instructions are erroneous for the reason that there is no evidence that the defendant, Ed Porter, knew or had any intimation that Walter Mills intended to assault Carpenter and that appellant entertained the same sentiment or intention. (3) The court committed error in permitting the prosecuting attorney to display the bloody garments alleged to have been worn by Carpenter the night he was cut. There was no issue in the case that rendered such evidence competent or necessary. The death of Carpenter was not denied; the only question was, who dealt the fatal blow? The exhibition of these bloody garments in the presence of the jury when taken into connection with the remarks of the prosecuting attorney in appealing to public sentiment constitute reversible error. State v. Gartrell, 171 Mo. 517; State v. McAfee, 148 Mo. 379.

Frank W. McAllister, Attorney-General, and Thomas J. Cole, of counsel, for respondent.

(1) When one is convicted of a lower degree of offense, the fact that an instruction was given as to a higher degree of the offense does not constitute reversible error. State v Morehead, 271 Mo. 88; State v. Goodwin, 271 Mo 83; State v. Wilson, 250 Mo. 329. (2) The evidence is sufficient to sustain the verdict. State v. Concelia, 250 Mo. 425; State v. Underwood, 263 Mo. 685. (3) It was entirely proper to introduce the clothing worn by Carpenter for the purpose of showing the extent and location of the wound received. State v. Long, 209 Mo. 382; State v. Buchler, 103 Mo. 208; State v. Miles, 199 Mo. 546; State v. Wieners, 66 Mo. 29; State v. Wilson, 223 Mo. 189; State v. Brannan, 206 Mo. 642; Underhill on Criminal Evidence (2 Ed.), sec. 48.

WALKER, P. J. Faris, J., concurs in result.

OPINION

WALKER, P. J.

Appellant and Walter Mills were charged by information in the circuit court of Cooper County with murder in the first degree, in the stabbing and killing of one Philip Carpenter, on the 12th day of May, 1917. After a severance, appellant was, at the January term, 1918, of said court, convicted of murder in the second degree, and his punishment assessed at twenty-five years' imprisonment in the penitentiary. From this judgment he appeals.

This is the second appeal in this case. Upon the former trial in which the appellant was also tried severally, he was convicted of murder in the second degree, and upon an appeal the case was reversed and remanded (State v. Porter, 199 S.W. 158). There is no material difference in the evidence preserved for our review in the two cases. We have incorporated the material facts in this case in the opinion where deemed necessary to an intelligent discussion of the matters at issue; for a fuller statement, reference may be made to the former opinion. The errors complained of will be reviewed in the order in which they have been presented by counsel for appellant.

I. The giving of an instruction for murder in the first degree is assigned as error. Conceding, as we must in the face of the facts, that there was no evidence to sustain this instruction and that the giving of same was error, it is robbed of its prejudicial effect by the verdict which found the appellant guilty of a less offense. We have uniformly held, except in the case of State v. Minor, 193 Mo. 597, 92 S.W. 466, in which the ruling in this regard was erroneous, that the giving of an instruction for a higher degree of an offense, although unauthorized, is harmless where one is convicted of a lower degree. [State v. Morehead, 271 Mo. 84, 195 S.W. 1043; State v. Goodwin, 271 Mo. 73, 195 S.W. 725; State v. Fleetwood, 190 S.W. 1; State v. Hutchison, 186 S.W. 1000; State v. Darling, 199 Mo. 202.] While we are required to render judgment on the record in criminal cases (Sec. 5312, R. S. 1909), there is no more authority for the reversal of a criminal than a civil case where it is disclosed that the error complained of does not affect the merits of the action, or in other words, is not prejudicial (Section 2082, R. S. 1909). This contention of the appellant is, therefore, overruled.

II. It is contended with insistence by the learned counsel for appellant that error was committed in the giving of instructions numbered 9 and 10, at the request of the State. These instructions are as follows:

"9. The court instructs the jury that every person who is present at the commission of a felony, aiding, abetting, assisting or encouraging the same by words, gestures, looks or signs, is in law, deemed to be and aider and abetter, and is liable as principal. But on the other hand, mere presence at the commission of a felony or other wrongful act does not render a person liable as a participator therein; if he is only a spectator, innocent of any unlawful intent, and does not aid, abet, assist or encourage those who are actors, he is not liable as principal or otherwise. Therefore, although it is charged in the information in this case that Walter Mills and Ed. Porter, at the time and place as charged in the information, feloniously, wilfully, deliberately, premeditatedly, on purpose and of their malice aforethought cut and stabbed Philip Carpenter, giving to the said Philip Carpenter, a mortal wound in and upon the back of the neck, from which he died at the time and place mentioned in the information, yet it is not necessary for the State, in order to establish the guilt of defendant, Ed. Porter, to prove that Ed. Porter actually assaulted and cut and stabbed Philip Carpenter with a knife, as charged in the information, but if the jury find and believe that one Walter Mills gave the fatal blow with a knife, which caused Philip Carpenter's death, as charged in the information, and that said Walter Mills is guilty of murder as explained in other of these instructions, and the jury further find that Ed. Porter knowing the unlawful intent of said Walter Mills, or having the same common purpose to kill Philip Carpenter in his mind, was present, aiding, abetting, helping, advising, comforting, maintaining, or assisting the said Walter Mills in such killing in any way or by any means, then such defendant is guilty of murder equally with said Walter Mills, who the jury may find and believed actually assaulted and stabbed Philip Carpenter, thus giving him the fatal blow, which caused his death, as aforesaid, and the jury should so find.

"10. The jury are instructed that in order to convict defendant, Ed. Porter, it is not necessary that the jury should believe that he actually assaulted and stabbed Philip Carpenter with a knife as charged in the information or that he even took hold of him or even touched his person, but if the jury believe from the evidence that one Walter Mills assaulted and stabbed Philip Carpenter with a knife, inflicting the mortal wound from which said Philip Carpenter died, as charged in the information, and you further believe that defendant, Ed. Porter, was present, and knowing the unlawful intent or with the same common purpose in view was aiding, abetting, helping, comforting, encouraging, or for the purpose and with the intent to aid and assist if necessary, the said Walter Mills in such killing, if it became necessary so to do, then the defendant, Ed. Porter, so doing or so present, is guilty of murder in the first degree equally with said Walter Mills, provided that said Walter Mills assaulted and stabbed Philip Carpenter with said knife and inflicted said mortal wound, from which said Philip Carpenter died, as charged in the information, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, as defined and explained in other of these instructions.

"And you are further instructed that if you find and believe from the evidence that at the time and place mentioned in the information one Walter Mills, willfully, premeditatedly, on purpose and of his malice aforethought, as explained in other of these instructions, but without deliberation, stabbed Philip Carpenter with a knife, thus and thereby inflicting upon the said Philip Carpenter a mortal wound of which said mortal wound the said Philip Carpenter at the time and place mentioned in the information died, and you further find that defendant, Ed. Porter, was present, and knowing the unlawful intent or with the same common purpose in view was aiding abetting, helping, comforting, encouraging, in any way or by any means, the said Walter Mills in such killing, then defendant, Ed. Porter, is guilty of murder in the second degree equally with said Walter Mills, and the...