The State v. Recke

• Decision Date: 22 December 1925
• Docket Number: 26205
• Citation: 278 S.W. 995,311 Mo. 581
• Parties: THE STATE v. FRANK C. RECKE, Appellant
• Court: Missouri Supreme Court

278 S.W. 995

311 Mo. 581

THE STATE v. FRANK C. RECKE, Appellant

No. 26205

Supreme Court of Missouri

December 22, 1925

Appeal from Jackson Circuit Court; Hon. Thad B. Landon Judge.

Reversed and remanded.

Bruce Barnett for appellant.

(1) The demurrer to the evidence should have been sustained. The evidence was insufficient from which to infer that appellant intended any assault to be made upon Rose or any other person. Further, there is no evidence as to which of the four men committed the assault, and appellant had consented that only two of them should go to the Gary residence, and the assault may have been committed by the other two. Certainly he cannot be held to have conspired with two men he never heard of. (2) The demurrer to the evidence having been overruled, there should have been an instruction on manslaughter. The element of malice, present in murder in the second degree and absent in manslaughter, means, when applied to homicide cases, an intent to kill or do great bodily injury or to commit some other felony. Where only a simple or common assault is intended, and death ensues, the element of malice is wanting and the offense is manslaughter only. Little v. Commonwealth, 197 S.W. 516; Ex pare Beshirs, 166 P. 73; Turner v. Commonwealth, 167 Ky 365; People v. Lurie, 266 Ill. 636; People v Mighell, 254 Ill. 53; McAndrews v. People, 208 P. 486; Howard & Porter v. Commonwealth, 178 Ky. 844. The doctrine of imperfect self-defense, now well established in this State, is cognate to the principle above stated, and is founded upon the same consideration, namely, the difference between a homicide resulting where a felony was intended on the one hand or where a mere misdemeanor was intended on the other hand. It is a question of felonious intent vel non. State v. Eastham, 240 Mo. 252; State v. Gordon, 191 Mo. 114, 128. (3) The question is as to the intent of the appellant and not as to the intent of the man who assaulted Rose, whoever that may be. Even though he had committed murder in the first degree, that is to say, even if he had struck with a deliberate intent to kill the intent of the accessory might be to commit a misdemeanor only. The principal might act with malice and even deliberation, and at the same time the element of malice might be absent so far as the accessory is concerned. Brill's Cyc. Criminal Law, secs. 242, 257; State v. Phillips, 118 Iowa 660; Miller v. State, 139 Wis. 57; Thomas v. State, 73 Fla. 115; State v. Pasnau, 118 Iowa 501; Hawley v. Commonwealth, 75 Va. 847; State v. Wolf, 112 Iowa 458; Red v. State, 39 Tex. Cr. 667; Brown v. State, 28 Ga. 199; State v. Smith, 100 Iowa 458. (4) Instruction 5 on murder in the second degree is without reason or precedent. It tells the jury that if Allee, Mathews, Schultz and Baber, or any of them, assaulted and killed Rose, without referring to whether Rose was a fixture-hanger or whether he was a non-union workman or whether the assault occurred at 1228 West Fifty-sixth Street, and if before such killing this appellant procured and advised said four men, or any of them, to kill any person or persons working as non-union fixture-hangers at 1228 West Fifty-sixth Street, with intent to kill them or to do them great bodily harm, the jury should find appellant guilty of murder in the second degree. The element of causal connection is completely eliminated and the instruction offends against the well-established rule that if the alleged accessory send the principal forth to kill John and the principal kills James, the accessory cannot be held responsible unless the killing of James was done in an attempt to kill John. Such errors are held to be fatal. State v. Lentz, 184 Mo. 235. (5) The same instruction omits and eliminates the element as to intent upon the part of this appellant. It does not require the jury to find that the act of the appellant in procuring, advising or inducing the others to commit the assault was intentional or willful or premeditated or with malice aforethought. This instruction seems to be predicated upon the theory that the intent of the principals will be imputed to the accessory conclusively and as a matter of law, which doctrine is entirely inconsistent with the modern rule. Cases cited under Point 3. (6) Instruction 6 has the same vices as Instruction 5. It is predicated upon the theory of a conspiracy without requiring the jury to find that appellant intentionally or willfully or with premeditation or malice aforethought entered into the conspiracy, and without requiring the jury to find that the act done was of the nature contemplated or involved in the conspiracy. This instruction speaks of a conspiracy to assault non-union fixture-hangers at 1228 West Fifty-sixth Street and then submits the question as to whether Rose was so assaulted, without requiring the jury to find that Rose was a non-union fixture-hanger and without requiring the jury to find that the assault was made at 1228 West Fifty-sixth Street. (7) From the evidence and from the instructions it appears that appellant is prosecuted as an accessory only, that is to say, that there was no effort to fix responsibility upon him as a principal and no evidence that he was present at the place of the homicide or near enough thereto to aid or abet. Accordingly, he cannot be guilty if the principals are innocent, and the guilt or innocence of each principal is an issue. Therefore one of the issues was as to the guilt or innocence of Mathews, and that issue had been adjudicated. Mathews had been found not guilty and judgment had been rendered accordingly. As to whether the judgment of the acquittal of Mathews was conclusive or merely prima facie is not involved upon this appeal. The error complained of in this regard is that this appellant offered the record of that judgment in evidence and the same was excluded. That the same was at least prima-facie evidence is established by the authorities. Commonwealth v. Minnich, 250 Pa. St. 363; Buck v. Commonwealth, 107 Pa. St. 486; Levy v. People, 80 N.Y. 327. The judgment, either of conviction or of the acquittal of a principal in a prosecution of an alleged accessory, is not only prima-facie evidence and as such admissible, but the same is evidence of exceptional weight.

Robert W. Otto Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) The evidence was sufficient to raise an issue for the jury. Therefore it was not error to overrule appellant's demurrer at the close of all the evidence. State v. Hembree, 242 S.W. 914. (2) Appellant was shown to be an accessory before the fact by procuring, inciting, advising and encouraging his co-conspirators to get the non-union fixture-hangers at 1228 West Fifty-sixth Street, "off the job," and was, therefore, guilty as principal of the murder of Rose. Sec. 3687, R. S. 1919. (3) The evidence establishes a case of murder, hence appellant was not entitled to a manslaughter instruction. Sec. 3236, R. S. 1919; State v. Stack, 103 Mo. 17; State v. Noeninger, 108 Mo. 170. (4) Appellant's complaint of Instruction 5 is without merit, as it correctly declares the law under the evidence. State v. Rucker, 93 Mo. 91; State v. Dockery, 243 Mo. 596. (5) Instruction 6 correctly stated the law covering the question of conspiracy as applied to the facts in evidence. State v. Hill, 273 Mo. 339; State v. Lewis, 273 Mo. 531. (6) The exclusion as evidence of the acquittal of co-defendant Mathews offered by defendant was not error. State v. Ross, 29 Mo. 39; State v. Sadowski, 256 S.W. 755.

OPINION

Blair, J.

Defendant was jointly indicted with six other persons for the killing of one Julius A. Rose, in Kansas City, on July 2, 1923. The indictment charged murder in the first degree. Defendant was granted a severance. The jury failed to agree upon the first trial. On the second trial he was convicted of murder in the second degree and his punishment was fixed by the jury at imprisonment in the penitentiary for ten years. He has appealed from the judgment rendered upon such verdict.

Defendant was business agent for the Fixture-Hangers Union, the members of which were out on a strike, which began about May 1, 1923. Defendant's business included the duty of endeavoring to prevent non-union fixture-hangers from working during the strike and to get them to join the union. The record discloses that defendant had made numerous efforts to get non-union men to quit work, and had made unsuccessful efforts to get Rose, the deceased, and a fixture-hanger named Carlton C. Olden, to cease working for a fixture company known as "Bailey-Reynolds," and to join the union.

The evidence offered by the State tended to show that on the day of the homicide Rose and Olden were working together at the Hunter L. Gary premises at 1228 West 56th Street, Kansas City. They were installing an electric chandelier in the dining room at said premises, when four men entered the room. They were Allee, Matthews, Baber and Schultz, who were co-indictees with defendant. Allee said to Rose and Olden, "You fellows got a card?" On being told that they had none, Allee said, "Well, how would you fellows like to get off this job?" Rose said, "Why, we wouldn't care to. Why, where are you from?" Alley said, "We were sent out here by the Building Trades Council to see you fellows get off this job or else --" Rose said, "Well, else what?" Allee said, "By God, you take the consequences."

Rose then got off his ladder and stooped over to pick up some glass prisms lying on the floor. Then Allee said, "Don't pick that up, leave that alone, I mean you." Thereupon Allee gave Rose a push, which caused him to fall back on his hands.

About this time Olden got down off his ladder on to the floor. That was the last he knew for a few...