State v. Lucas , 316 Mo. 904 ( 1927 )

Appellant and one John Burgess were jointly charged with first degree murder for killing one Pauline Miller. Upon his separate trial appellant was found guilty as charged. The jury assessed his punishment at life imprisonment. Failing to secure a new trial, he has appealed from the judgment entered on the verdict.

The undisputed facts are: William Miller and his wife and children lived on land belonging to Burgess situated in Stoddard County. Appellant had the land leased from Burgess. Miller was appellant's sub-tenant. Burgess and appellant lived close together on the south side of the north section-line road. Miller lived in the same north half section and west of the road bounding the section on the east. On the evening of April 20, 1925, at about eight o'clock, Mrs. Miller was sitting in the east porch of her home holding in her lap her five-year-old daughter, Pauline. Her fourteen-year-old daughter, Marie, was also sitting on the porch. Four or five pistol shots were fired by someone riding in an automobile passing south along the road. The shots were directed toward Miller's house. Several of the bullets struck the house. One of them struck Pauline, causing her death an hour or so later. While it was dark at the time, Mrs. Miller could see that someone occupied both the front and rear seats of the automobile. It is conceded that at least appellant and Burgess were in the automobile from which the shots were fired, and that the automobile proceeded on around the entire section and did not stop until it reached appellant's home.

For the State, Mrs. Miller testified that the shots were fired from the back seat of the automobile. (Appellant and his son testified that they occupied the front seat, and that Burgess was in the back seat.) William Miller testified that he had been to a neighbor's house to the south, and was returning when he saw the automobile approaching and passing his house and heard the shots. He saw the flashes of gun fire just as the automobile was opposite his house. He stepped to one side of the road and concealed himself. By the aid of a lamp in a near by window and the headlight from a neighbor's automobile, he was enabled to see and recognize the occupants of the automobile as it passed him. He identified appellant and Burgess as the sole occupants of the automobile. He said Burgess occupied the front seat and was driving the automobile, and that appellant occupied the rear seat. Miller's testimony, in connection with that of his wife that the fatal shots were actually fired from the rear seat, which Miller said was occupied by appellant, made a case for the jury on the theory that appellant himself fired the fatal shots.

But, even if appellant did not fire the fatal shots himself, still, if he aided, abetted or conspired with Burgess to that end and, as a result of such conspiracy and common plan, Burgess fired the fatal shots, then appellant was just as guilty as if he had fired the shots himself. Of course, if Burgess fired the fatal shots and appellant had no knowledge of his purpose to do so and did not conspire with him to that end, as appellant's testimony tended to show, then he was guilty of no crime whatever. In attempted support of the issue of common purpose or conspiracy, most of the State's evidence was admitted and, around the admission of such testimony and in connection with the instructions covering same, most of the alleged errors charged were committed.

We will not attempt to detail all of the facts. The evidence offered by the State tends to show the existence of bad feeling between Miller on the one hand and Burgess and the appellant on the other. Appellant admitted that Burgess had been operating a still, and it appears that Burgess held Miller responsible for the destruction of the still by the officers. Appellant and Miller had trouble over the failure or refusal of appellant to give Miller work, as Miller claimed appellant had agreed to do. They also had some difficulty over the payment of a note given by Miller to a third person, which was signed by appellant as surety, to enable Miller to purchase some stock. It also seems that appellant guaranteed a doctor's bill for Miller and there was trouble over the fact that Miller had not paid the bill. Miller claimed that both Burgess and appellant were in the whiskey business and knew that he had reported the existence of their still to the officers. There was some evidence of threats against Miller by Burgess and appellant, as well as counter threats on Miller's part. Miller testified that he had seen a pistol in appellant's pocket earlier on the day of the tragedy. Appellant testified that he did not own and never had a pistol.

Appellant and his son testified that, just preceding the tragedy, they and Burgess started from appellant's home in appellant's automobile to go to the home of one John Horton. Appellant and his son occupied the front seat and appellant drove. To reach Horton's place, they had to pass the house where Miller was living. As they were nearing the Miller house appellant said to Burgess: "Do you reckon Miller will cut the fence down and tear the paper off the house." This remark referred to the expected move from the premises by Miller, as he had agreed. Burgess said: "I will take a couple of shots at the house and that will move him quicker than anything else." Appellant asked him not to do this, saying that it would get them both into trouble, but Burgess immediately fired the shots. Burgess was not called as a witness.

It was fully established by the State and not denied by appellant that the automobile swerved about four feet toward and just in front of the Miller house and that the shots were fired at the house from directly in front of it. The automobile was then about fifty feet from the house. Although it was dark at the time and no moon was shining, it is reasonable to assume that at least the forms of persons on the porch of Miller's house could have been seen at that distance, because Mrs. Miller could see forms in the automobile.

Appellant made no effort to stop the automobile or to go back and see if any damage had been done by the shots, although he claims they were fired against his will and over his protest. He proceeded to drive on around the section and back to his home. They did not stop at the Horton place, which they testified was their destination when they started out. Even when he was told of the serious results of the shots, appellant made no disclosure of his alleged knowledge that they were fired by Burgess. He even visited the Miller premises after the tragedy became known, but made no disclosure of his knowledge. Thus his subsequent conduct appears inconsistent with his story of the shooting.

It appears unnecessary to enter into more minute details as to the facts. It should be stated, however, that a number of witnesses testified that appellant bore a good reputation as a peaceable, quiet and law-abiding citizen. The State offered no countervailing proof in that regard.

Appellant has made several assignments of error which we cannot consider because his motion for new trial, which was filed in October, 1925, was not sufficiently definite to meet the requirements of Section 4079, Laws 1925, page 198. [See State v. Standifer, 316 Mo. 49, 289 S.W. 856, decided at the present term.] For this reason, we will not consider complaints against the instructions, except the refusal of the instruction in the nature of a demurrer to the evidence. Nor will we consider assignments of error in the admission and exclusion of evidence, except in one respect to be noticed later.

The demurrer to the evidence was Instruction E, which reads: "The court instructs the jury that under the law and the evidence in this case, at the close of all the testimony, you should acquit the defendant." If the trial court had given this instruction it would have told the jury that there was no evidence whatsoever tending to show the commission by appellant of any offense contained in the information, which included charges ranging from murder in the first degree down to manslaughter. As there was substantial testimony that appellant himself fired the fatal shot, there was substantial evidence tending to show at the very least that he was guilty of manslaughter in recklessly shooting into the Miller house when he knew people were living therein, even if he did not know they were on the porch at the time. The court, therefore, did not err in refusing to instruct the jury to acquit appellant, as requested in Instruction E.

In this connection, although it may not be necessary to go that far in reaching the conclusion that Instruction E was properly refused, we think there was sufficient evidence to justify submission of the case upon the theory of first degree murder. There was substantial evidence tending to prove that appellant fired the fatal shot. There were facts and circumstances tending to show that such shooting was malicious and deliberate. The jury had the right to draw the inference that persons on Miller's porch at the time could have been seen by appellant as he passed along the road and that the shots were fired at such persons in the belief that one of them was Miller and that the shots were fired with the intent to kill him. If so, the killing of Miller's child was a deliberate killing, just as much as would have been the case had Miller himself been present and been struck and killed by one of the bullets. [Ex parte Burgess, 274 S.W. (Mo.) 423.] The facts and circumstances justified the finding that the act of shooting was deliberate.

We need not enter into the field of discussion, invited by appellant in his brief, that, if the shooting was merely done in the commission of or attempt to commit a felony, other than arson, rape, robbery, burglary or mayhem and not by means of poison or by lying in wait, then the killing was not murder in the first degree. That would offer an interesting field for discussion if the instructions in this case were properly before us for consideration. But, since there was substantial evidence tending to show that the very act of shooting was a deliberate act, in furtherance of a design to kill Miller, and appellant did not assign error in his motion for new trial as to the giving and refusing of instructions in the manner required by the 1925 Act, we are not required to enter into a consideration of the law applicable if appellant or Burgess or both of them merely fired into Miller's house to scare him or for some other purpose than that of killing him.

Assignment No. 9 in the motion for new trial was that: "The court erred in admitting statements and testimony relating to a still and mash which was intended to inflame the jury against the defendant, to which action of the court the defendant objected and excepted at the time."

The theory of the State was that Miller was interfering with the operations of appellant and Burgess in making whiskey illegally and had set the officers upon them and that appellant and Burgess were endeavoring to drive Miller out of the country or, at least, away from their premises by threats and a show of actual violence or that the shots were fired with intent to kill Miller. Such evidence tended to provide a motive for the commission of the crime. If the jury found that appellant was in fact operating, or interested with Burgess in the operation of, a still and that he believed Miller had interfered with his plans in that respect, such evidence tended to establish a reason for the attack on Miller's house. It tended to show that such attack was malicious and was deliberately made in revenge for wrongs, real or fancied, at Miller's hands. It was also a circumstance, taken in connection with other facts, which formed a chain of circumstances tending to establish a conspiracy between appellant and Burgess to drive Miller away or to kill or to do him great bodily harm. No error was committed in the admission of evidence concerning the still and the connection of appellant therewith.

The motion for new trial points out no particular rulings upon this character of testimony, and what we have said applies to the character of the evidence generally, and not to the correctness of any specific ruling made in the admission or exclusion of any particular question or answer. The motion for new trial, as we have above pointed out, does not sufficiently assign error in that respect.

Paragraph VI of the assignments of error in appellant's brief is that "the court erred in refusing to rebuke counsel for the State for improper questions and argument; and in prejudicial remarks made by the court." Paragraph XI of the motion for new trial assigned error because the court permitted counsel for the State to refer to appellant as a "demon in human shape." Upon examination of the bill of exceptions we find that the trial judge apparently sustained appellant's objection to the statement. At least he instructed the jury to disregard it, and an exception by appellant is noted. Whether the exception was taken to the action of the court in not definitely sustaining appellant's objection or to the failure of the court to administer a rebuke as requested, is not clear. The ruling of the court was:

"THE COURT: I understood him to say if the jury believe that a man did so and so he didn't deserve any sympathy; he was a demon in human shape. He was not stating as a fact that the defendant or any one else was a demon in human shape, but I will instruct the jury to disregard the statement that ``he was a demon in human shape.'

"MR. WARD: We except."

From the statement of the trial judge touching his understanding of the argument objected to, we are unable to see why the jury was even instructed to disregard the argument made. Counsel for the State was apparently merely drawing a conclusion from the facts and circumstances in evidence. [State v. Hart, 292 Mo. l.c. 97-99.]

Assignment XII in the motion for new trial was: "The court erred in permitting counsel for the State in the closing argument to the jury without any testimony of any kind in the record upon which to base the same; the said remarks are as follows: (See pages B and C — which said remarks are set out on pages 249 to 251 inclusive in the Bill of Exceptions)."

Making no point of the fact that appellant failed to state in said assignment what the court improperly permitted counsel for the State to do and assuming that it charged error in permitting certain argument to the jury, the assignment is otherwise entirely inadequate. Appellant has undertaken in the bill of exceptions to give his conclusion as to what remarks were complained of in the motion for new trial, which was before the trial court and has not been brought here. We are entitled to have the motion for new trial appear in the bill of exceptions in the very words in which it was presented to the trial judge. We will not assume that references to pages of the bill of exceptions, in lieu of the actual language of the motion for new trial, correctly show what matter was contained in the motion when it was considered by the trial court. For this reason, whatever remarks of counsel appellant sought to complain of in Assignment XII of the motion for new trial are not properly before us.

Other matters complained of in Paragraph VI in appellant's brief cannot be considered for want of a sufficient antecedent basis therefor in the motion for new trial. The only other assignment of error which may reasonably be said to have been properly presented in the motion for new trial is that the verdict is the result of bias and prejudice on the part of the jury and that the jury was inflamed by the introduction of testimony in respect to appellant's connection with the illicit liquor business. We have held that the admission of that sort of testimony was proper in a general way. Specific rulings have not been properly preserved for review. There is nothing in the record upon which to base the contention that the jury was biased and prejudiced against appellant to any greater extent than was inevitable and legitimate under the evidence against him in the case. The mere facts that the jury believed the State's witnesses and disbelieved appellant's witnesses and found appellant guilty of murder in the first degree and fixed his punishment at life imprisonment do not in themselves establish or tend to establish such bias and prejudice. Not a single fact or incident appears in the record from which such conclusion can be reached.

So far as appears from the assignments properly before us, the appellant was fairly tried and was convicted upon substantial testimony by a fair and impartial jury. No complaint is made as to the insufficiency of the information, the form of the verdict or the regularity of the judgment rendered thereon.

It becomes our duty to affirm the judgment of the trial court. It is so ordered. All concur.