The State v. Young

• Decision Date: 28 May 1926
• Docket Number: 26932
• Citation: 286 S.W. 29,314 Mo. 612
• Parties: THE STATE v. PHILLIP P. YOUNG, Appellant
• Court: Missouri Supreme Court

286 S.W. 29

314 Mo. 612

THE STATE v. PHILLIP P. YOUNG, Appellant

No. 26932

Supreme Court of Missouri

May 28, 1926

Appeal from Audrain Circuit Court; Hon. Ernest S. Gantt Judge.

Affirmed.

Clarence A. Barnes for appellant.

(1) The court erred in overruling defendant's motion to quash the information. (a) It does not appear to have been based upon the affidavit of Lillian Kumbera theretofore filed in the case. R. S. 1919, sec. 3850. (b) It does not charge that Joe Kumbera was then and there being in the peace of the State. 1 Bishop's New Crim. Procedure, secs. 407-414. (c) It does not charge that defendant did discharge and shoot off the revolving pistol at Kumbera. State v. Burns, 286 Mo 665; State v. Moore, 235 S.W. 1056. (2) The court erred in not disqualifying the Honorable Sheriff of Audrain County from acting in this case and in summoning the jury after defendant filed his affidavit of disqualification. R S. 1919, sec. 2342. (3) The court erred in not permitting defendant's attorney in his opening statement to state facts that would have disclosed that the deceased was guilty of statutory rape upon defendant's daughter, and to introduce evidence thereof. State v. Whitley, 183 S.W. 317. (4) The court erred in permitting the State to introduce in evidence the so-called statement made by defendant to the prosecuting attorney while in his office and in custody of the sheriff, in that it compelled him to testify against himself in a criminal cause, and the burden was on the State to show by evidence outside of the statement itself that it was voluntarily made by defendant after he had been advised it could and would be used against him, in violation of Sec. 23, Article 2, Constitution of Missouri. State v. Young, 119 Mo. 495; State v. Naughton, 221 Mo. 398; State v. Lehman, 175 Mo. 619; State v. Blackburn, 273 Mo. 469; Ex parte Gauss, 223 Mo. 277; Ex parte Carter, 166 Mo. 604; State ex rel. Orr v. Kearns, 304 Mo. 685; In Matter of M. T. January, 295 Mo. 653. (5) State's Instruction 5, improperly connects and refers to Instruction 3, and directs the jury to find defendant guilty of murder in the second degree if they fail to find him guilty of murder in the first degree. And before this instruction can even be considered, the jury were required to acquit the defendant of murder in the first degree. It thereby prejudiced the defendant before the jury, tended to a compromise of his rights, and deprived him of the presumption of innocence as against the charge of murder in both degrees. (6) The State's instruction improperly declares the law, in that it required the defendant as an officer to have probable cause to believe Kumbera had committed a felony, and in addition to having probable cause to believe and did believe he was guilty of the crime of rape upon Lena Young. It was only necessary for the officer to suspect that a felony has been committed by the party he seeks to arrest without warrant. 1 Bishop's New Crim. Procedure, p. 101, secs. 181, 182; State v. Underwood, 75 Mo. 230; State v. Whitely, 183 S.W. 317; State v. Cushenberry, 157 Mo. 168; State v. Moore, 235 S.W. 1056; State v. Dunivan, 269 S.W. 415. It misled the jury further by implying that he did not believe his daughter as to the parentage of her child. It is an indirect comment on the evidence pertaining thereto. (7) The instructions submitting the charge of murder in the first degree should not have been given under the evidence in this case, and it prejudiced defendant before the jury. State v. Moore, 235 S.W. 1056. (8) The court erred in refusing to instruct the jury upon the offence of manslaughter and in refusing to give defendant's instruction numbered 6A. State v. Grugin, 147 Mo. 39; State v. Connor, 252 S.W. 793; State v. Curtis, 70 Mo. 594; State v. Stewart, 278 Mo. 177; State v. Conley, 255 Mo. 185; State v. Bunell, 252 S.W. 709.

North T. Gentry, Attorney-General, and James A. Potter, Assistant Attorney-General, for respondent.

(1) The court did not err in overruling defendant's motion to quash the information. Section 3849, R. S. 1919, requires all informations to be signed and filed by the prosecuting attorney, and to be verified by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person. (a) Under this statute it is optional with the prosecuting attorney whether the information shall be based upon the affidavit of a private individual or upon his own information and belief. Sec. 3849, R. S. 1919. (b) The information alleged that the deceased was "in the peace of the State" at the time he was murdered. (c) It was not necessary that the information allege that the defendant shot off the revolving pistol "at" the deceased. The information charges that the defendant did "discharge and shoot off, to, against and upon said Joe Kumbera." The indictment would have been good even though none of these last words had been included. State v. Rasco, 239 Mo. 535; State v. Stewart, 274 Mo. 649. (2) There is no showing that any of the jurors were summoned by the sheriff personally, neither is there any intimation in the record that any of the jurors summoned were biased or prejudiced, nor that the defendant suffered any injury from the court's refusal to disqualify the sheriff. (3) The court did not err in refusing to permit defendant's attorney in his opening statement to state facts that would have disclosed that the deceased was guilty of rape upon defendant's daughter. State v. Stewart, 274 Mo. 649. The defendant was permitted to show what his daughter told him in regard to her conduct with the deceased. The truth or falsity of her statement was unimportant if defendant believed her statement to be true. The conduct of the defendant would necessarily have been the same, if he believed his daughter's statement, whether such statement was true or false. (4) The court committed no error in allowing the State to introduce the voluntary written statement made by the defendant shortly after he surrendered to the sheriff. The sole objections to the introduction of the confession was that it was obtained without advising the defendant that he was not compelled to make the statement, and that he was entitled to counsel if he desired counsel. "Confessions elicited by questions put to a prisoner by an officer or private person are admissible." State v. Stebbins, 188 Mo. 387; State v. Barrington, 198 Mo. 23. It is not necessary that the defendant be warned that his statements would be used against him. State v. Church, 199 Mo. 605. There was no claim that the confession of the defendant was obtained through force, violence, threats, tricks or promises of any kind, and since no valid objection was made to the confession it was not necessary for the court to take any evidence to determine whether the confession was admissible. (5) Instruction number six was not erroneous. State v. Crump, 267 S.W. 822; State v. Moore, 235 S.W. 1058. (6) The court did not err in refusing to give an instruction on manslaughter. State v. Borders, 199 S.W. 83; State v. Stewart, 278 Mo. 177

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On November 19, 1924, the Prosecuting Attorney of Audrain County, Missouri, filed in the circuit court of said county an information, which, without caption, reads as follows:

"Frank Hollingsworth, Prosecuting Attorney within and for the County of Audrain and State of Missouri, upon his oath of office and his oath hereto appended, informs the court that at and in the County of Audrain and State of Missouri, on or about the 8th day of September A. D., 1924, one Phillip P. Young, in and upon one Joe Kumbera, in the peace of the State there being, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did make an assault, and that the said Phillip P. Young, a certain revolving pistol then and there loaded and charged with gunpowder and metal balls, which said revolving pistol, he, the said Phillip P. Young, in his hands then and there had and held, then and there feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought did discharge and shoot off, to, against and upon the said Joe Kumbera, and that the said Phillip P. Young, with the metal balls aforesaid, out of the revolving pistol aforesaid, then and there by force of the gunpowder aforesaid, by the said Phillip P. Young, discharged and shot off as aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did strike, penetrate and wound him, the said Joe Kumbera, giving to him, the said Joe Kumbera, in and upon the left breast of him, the said Joe Kumbera, one mortal wound of the depth of about ten inches and the breadth of about one-half inch, of which mortal wound he, the said Joe Kumbera, at the County of Audrain and State of Missouri, on the 8th day of September A. D., 1924, then and there instantly died; and so the prosecuting attorney aforesaid, upon his oath aforesaid, doth charge and say that the said Phillip P. Young, him, the said Joe Kumbera, then and there by the means aforesaid, at and in the County of Audrain and State of Missouri, on the date aforesaid, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought did kill and murder; against the peace and dignity of the State."

On December 13, 1924, defendant was arraigned and entered a plea of not guilty. He was tried before a jury and on December 17, 1924, the following verdict was returned:

"We, the Jury, find the defendant guilty of murder in the second degree and we assess his punishment at imprisonment in the State Penitentiary for a term of ten years."

Thereafter on the 20th day of December, 1924, defendant filed his ...