State v. Garrett , 285 Mo. 279 ( 1920 )

The defendant, James W. Garrett, was convicted of murder in the first degree and his punishment was fixed at life-imprisonment in the penitentiary. He had duly appealed.

This is the second time that this case has been in this court. The former appeal was from a like conviction and sentence. The opinion is reported in 276 Mo. 302, 207 S.W. 784. The former judgment was reversed because of an error in an instruction.

The facts in the present record are essentially the same as on the former trial, and for that reason we adopt the lucid statement of facts prepared by WHITE, C., and set forth in State v. Garrett, supra, as applicable here, with the exceptions hereinafter noted.

There was evidence in behalf of the defendant upon the last trial that he frequently carried a large roll of money — amount not stated — and that he was seen with such a roll a short time before, as well as immediately after, Mrs. Campbell, the deceased, had been murdered. As upon the former hearing, so in the trial now in review, defendant did not testify in his own behalf, and, as before, certain relatives with whom defendant claimed he had been visiting at Moberly, Missouri, at such a time as made it impossible that he could have been at New Frankfort, the scene of the tragedy, when the murder was committed, also failed to testify. The defense was an alibi, and upon the last trial defendant produced one or two witnesses, in addition to the two who testified on the first trial, in support of that defense.

The court gave eight instructions in behalf of the State, and thirteen at the instance of the defendant, and refused two asked by the defendant.

Appellant is not represented by counsel in this court. We are therefore relegated to our own study of the record and to the motion for a new trial for information concerning any errors which may have occurred in the trial court.

The motion for a new trial is voluminous. In thirteen printed pages it sets forth twenty-eight distinct grounds, ranging from an allegation in the first ground that "the verdict is against the law," to a final charge in the twenty-eighth assignment that "the defendant has not had a fair and impartial trial." The whole course and conduct of the trial is assailed fromGeneral the examination of the jurors upon their voir direAssignments. to the alleged action of the trial judge in leaving the courthouse after the cause had been submitted to the jury. We decline to take up these charges seriatim and discuss them separately. We have so often held that vague generalities and mere assertions in motions for a new trial are valueless and raise no point for appellate consideration, that we do not think it necessary to reiterate the reasons upon which that conclusion is based. Those in need of information upon that point may consult State v. Scott, 214 Mo. 257; State v. Mann, 217 S.W. l.c. 69, and the authorities there cited.

We will, therefore, rule specifically upon such matters in this motion as, upon a careful reading of the record, approximating five hundred typewritten pages, may appear to us to be worthy of separate mention, and as to the remainder, content ourselves with the general statement that we find them devoid of merit.

I. The record discloses that, contrary to the grounds assigned in the motion for a new trial, the verdict is not against the law, nor against the evidence, nor against both the law and the evidence, nor against the weight of the evidence, nor lacking in substantial evidence to support it, nor is theDemurrer to verdict, so far as this record discloses, the resultEvidence. of passion or prejudice, and appellant's demurrer to the evidence was, therefore, properly overruled.

II. The eight instructions given in behalf of the State, all of which are assailed in the motion for a new trial, are in time-honored form and follow oft-approved precedents. Of these instructions those numbered six, seven and eight are specifically questioned by appellant, but the criticisms urgedUsual against them are, we think, hyper-technical.Instructions. Instruction numbered six is the usual instruction with reference to the weight and credibility of the evidence, and has been approved time out of mind. [State v. Shelton, 223 Mo. 118.] Instruction numbered seven, relating to the presence or absence of motive, was expressly approved in the noted case of State v. Duestrow, 137 Mo. 44, and has been approved in many subsequent cases in substantially the form in which it was given in this case.

Instruction numbered eight is to the effect that if the jury found from the evidence that any statements made by the accused were not voluntary, then the jury should disregard such statements. The criticism is, inVoluntary effect, that the word voluntary was not defined. NoStatements. definition was necessary, but if appellant desired that such a definition should be given it was his duty to ask the court by its instructions to define that term. This he did not do, and he cannot now be heard to complain. While it is the duty of the court in criminal cases to instruct the jury, whether requested to do so or not, it is not error for the court to fail to instruct upon matters which are in their nature purely collateral or incidental. The duty to instruct the jury in writing is a duty arising from a statutory command, and the statute (Sec. 5231, R.S. 1909) only requires instructions to be given to the jury upon matters "which are necessary for their information in giving their verdict." Questions relating to good character (State v. McNamara, 100 Mo. l.c. 107), testimony of accomplices (State v. Weatherman, 202 Mo. 6) and similar matters are collateral in their character (State v. Lackey, 230 Mo. 707, l.c. 720), and so, we think, was the definition of the word "voluntary" in this instance. It follows that there was no error in the action of the trial court with respect to the eighth instruction in this case. For the same reason there was no error in the failure to instruct with reference to the purpose of the admission of certain evidence.

III. Error is also asserted in refusing to give instruction marked D-2 in behalf of appellant. This instruction reads as follows:

"You are instructed that the State has not shown that the deceased had in her possession any money at the time of her death, nor that any robbery was committed in connection with her death, nor is there any proof that the money foundLegitimate upon the person of the defendant at the time of hisInference. arrest had ever belonged to the deceased or been in her possession during her lifetime.

"You are therefore instructed and directed to disregard all testimony offered by the State on the subject of the financial condition of the deceased and you are further instructed to disregard all testimony showing the possession of any money by the defendant subsequent to the death of the deceased."

This instruction was properly refused for the reason that it was directly contrary to the facts shown by the evidence, and to proper and legitimate inference to be drawn from the evidence. [State v. Donnelly, 130 Mo. 642, l.c. 651.] The instructions taken as a whole were full and complete and fairly stated the applicable law.

IV. As another ground for a new trial, appellant in his motion for a new trial asserts that the trial court ordered fifty men to be summoned as jurors, which was done, and that thereafter, "without first calling the case, the court withoutJury. consultation with and without the consent of defendant, excused twenty-two of said jurors and directed the sheriff to fill said panel immediately and from the town of Marshall, and accordingly the sheriff did summon twenty-two more jurors from the town of Marshall."

We think that this assignment must also be overruled. The record does not show that the sheriff was directed to fill the panel from the town of Marshall, nor that he did so. It is nowhere alleged that appellant was not aware of the facts as to this matter at the time the jury was selected, yet the appellant made no objection on this ground upon the examination of the jurors upon the voir dire and saved no exception upon this ground. The objection appears for the first time in the motion for a new trial and it is for that reason not available for review here. [State v. Ivy, 192 S.W. 737, l.c. 739; State v. Brown, 119 Mo. 527, l.c. 537.] Good faith forbids that the defendant in a criminal case should sit idly by and accept a jury made up in whole or in part of persons incompetent for any reason known to him, and take his chances upon the verdict of such a jury, and then, when the result is not to his liking, obtain a new trial upon the ground of such incompetency. Furthermore a challenge to the array, both at common law and under our decisions should be made in writing, and this was not done in the case at bar (State v. Belknap, 221 S.W. 39, l.c. 44; State v. Church, 199 Mo. 605, l.c. 629; State v. Taylor, 134 Mo. 109, l.c. 143).

Appellant also insists that certain jurors who were on the panel were incompetent from having formed and expressed an opinion as to his guilt or innocence. The record shows that certain members of the panel stated that they had an opinion as to the guilt or innocence of appellant, but it further discloses that this opinion was in each instance based upon rumor and newspaper reports, either at about the time the homicide was committed, or at the time of former trials of this cause. Certain of these jurors had also heard some fragments of the testimony at former hearings of this case. Each of the jurors further stated, however, that he could give the appellant a fair and impartial trial.

Under the statute (Sec. 5220, R.S. 1909), as well as numerous decisions, such an opinion, formed from mere rumor and newspaper reports, is not sufficient to disqualify a juror when it further appears that he can afford the defendant a fair and impartial trial notwithstanding such an opinion. [State v. Vickers,209 Mo. 12, l.c. 27; State v. Sykes, 191 Mo. 62, l.c. 76; State v. Sherman, 264 Mo. 374, l.c. 380.] Nor is a juror, otherwise competent, disqualified merely because he may have heard portions of the evidence at previous hearings. [State v. Riddle,170 Mo. 287, l.c. 294.]

V. Error is assigned in the action of the trial court in this, that after this cause had been submitted to the jury, the court took a recess until the following morning, and the judge, leaving the jury in the charge of the sheriff, went to his home in Slater, Missouri. It appearsJudge. from the affidavit of the appellant that the recess was taken at about seven o'clock in the evening, and that during the same evening the judge was recalled by telephone and received the verdict of the jury. As to all of these matters, the record is silent. It is too plain for argument that the verity of the record cannot be impeached by the mere affidavit of the accused, and for that reason we might well ignore this point. However, we cannot conceive how the rights of the appellant were prejudiced in the slightest degree by this incident, even if it occurred as claimed. This assignment also is devoid of merit.

VI. It is claimed that error was committed in admitting evidence tending to show that deceased was reported to be in the habit of keeping considerable sums of money upon her person or about her house and that defendant was cognizant ofEvidence. this reputation, and also as to the admission of appellant's financial condition before and after the homicide.

The evidence tending to show that the deceased commonly kept, or was commonly believed to keep, money about the premises and that that rumor was known to appellant, was clearly competent upon the question of motive. [State v. Rasco, 239 Mo. 535, l.c. 564; State v. Shelton, 223 Mo. 118, l.c. 132.] It was the theory of the State that robbery was the impelling motive in this case, and the evidence tends to support that theory.

Upon the admissibility of evidence bearing upon the financial condition of appellant, both before and after the homicide, we have found no direct adjudication in this State, but, on principle, it seems clear that this evidence is competent. If it could be shown that ten minutes before a robbery was committed the accused was penniless and that within ten minutes thereafter, he was in funds, particularly of the kind and character known to have been possessed by the deceased, that fact, coupled with evidence showing an opportunity on the part of the accused to comit the crime in question, and that the deceased was found to have had money before the crime and none thereafter, would certainly have weight in the mind of any reasonable man, absent a reasonable explanation, as tending to identify the accused as the author of the crime. The length of time intervening between the state of poverty and the state of wealth on the part of the accused, would be a circumstance going to the weight, but not to the competency of the evidence. It has been so held in other jurisdictions. [State v. Garrington, 11 S.D. 178, l.c. 186; Garza v. State, 39 Tex. Crim. 358, l.c. 362.] We think this evidence was properly admitted.

On the whole we are convinced that the appellant was afforded a fair and impartial trial and that the evidence justified the verdict rendered against him. The judgment should be affirmed.

It is so ordered. All concur.