STATE v. MABRY, Mo., Judgment, Law, casemine.com

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THE STATE v. LAWRENCE MABRY, Appellant.

H.K. Bente and Irwin Bushman for appellant.

(1) The State produced no evidence to support a conviction, except defendant's uncorroborated extrajudicial confessions. Before these confessions were admissible it was incumbent upon the State to prove the corpus delicti. There is no evidence, direct or circumstantial, outside of mere conjectures in the alleged confessions, that deceased's death was caused by an attempt at robbery made by the defendant; nor is there any evidence corroborating the confessions. State v. Bennett, 6 S.W.2d 881; State v. Capotelli, 292 S.W. 42. (2) Testimony of a confession of the crime charged, made out of court by the accused, must be supported by independent proof, to show that a crime was in fact committed. The State wholly failed by competent proof to show that a crime was in fact committed. State v. Bennett, 6 S.W.2d 881; State v. Young, 237 Mo. 170. (3) A confession to be admissible must be entirely voluntary. State v. Hart, 292 Mo. 74; State v. Meyer, 293 Mo. 108; State v. Ellis, 294 Mo. 269. (4) When the corpus delicti has not been sufficiently established, an uncorroborated extrajudicial confession of guilt improperly admitted cannot be regarded as tending to show guilt, and cannot be considered in passing upon the subject of the evidence to sustain a verdict of guilty. State v. Bennett, 6 S.W.2d 881; State v. Capotelli, 292 S.W. 42. (5) The statement related by witness Lamm, as having been made by deceased Busch, was made after he had left the scene of the injury. It could be no part of the res gestae. It was made while the defendant was not present and would not be binding upon him; it therefore should have been excluded, and the court erred in admitting such testimony. State v. Bennett, 6 S.W.2d 881; State v. Capotelli, 292 S.W. 42; State v. Fletcher, 190 S.W. 317; State v. Skibiski, 245 Mo. 459; State v. Young, 237 Mo. 170; State v. Bowen, 247 Mo. 584. (6) Extrajudicial confessions must be corroborated. Testimony of the confession of the crime which is made out of court by the accused must be supported by independent proof of the corpus delicti; that is, it must be proven that the crime was actually committed and by competent evidence. It must be supported by independent proof of the corpus delicti; that is, be proven that a crime in fact was committed. State v. Bennett, 6 S.W.2d 881; State v. Young, 237 Mo. 170; Robertson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424; State v. Coats, 174 Mo. 396; State v. German, 54 Mo. 396; State v. Henderson, 186 Mo. 473; Kelly Crim. Law and Practice, sec. 281; 12 Cyc. 483; State v. Bowen, 247 Mo. 584; State v. Capotelli, 292 S.W. 42. (7) On a prosecution for a particular crime evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. These two extrajudicial confessions, if a confession at all, were intermingled with other crimes and were not admissible against defendant. 16 C.J. 586, sec. 1132; State v. Banks, 258 Mo. 479; State v. Duff, 253 Mo. 415; State v. Hyde, 234 Mo. 200; State v. Hale, 156 Mo. 102; State v. Jackson, 95 Mo. 651; State v. Bennett, 6 S.W.2d 881. (8) Full proof of the corpus delicti independently of the confession is not required. If there is evidence of corroborated circumstances which tend to prove the corpus delicti and correspond with circumstances relating to the confessions, both the circumstances and the confessions may be considered in determining whether the corpus delicti is sufficiently proven in a given case. State v. Bennett, 6 S.W.2d 881; State v. Skibiski, 245 Mo. 459; State v. Bowen, 247 Mo. 599; State v. Young, 237 Mo. 170; State v. Archer, 6 S.W.2d 912. (9) Where the evidence raises only a suspicion of guilt it will not sustain a conviction. State v. Archer, 6 S.W.2d 912; State v. Bennett, 6 S.W.2d 881; State v. Woodsaw, 175 Mo. App. 393; State v. Ferelf, 248 S.W. 979; State v. Rutledge, 304 Mo. 32; State v. Miller, 264 Mo. 441. (10) The testimony of State's witnesses does not even create a suspicion of any criminal conduct on part of the defendant. Said testimony does not place the defendant near the scene, does not show a hold-up was even attempted, does not show that the defendant or anyone else shot deceased Busch. The mere suspicion and conjectures in the testimony offered by the State cannot take the place of substantial testimony, tending to prove defendant's guilt and meeting the requirements of the law. It is only upon substantial evidence and not mere circumstances of suspicion that a charge of crime can be sustained, and because of the absence of such evidence in this case the court should have directed a verdict of acquittal. State v. Young, 237 Mo. 170; State v. Bennett, 6 S.W.2d 881; State v. Archer, 6 S.W.2d 912; State v. Slittbaugh, 250 Mo. 308; State v. Cluck, 252 Mo. 51; State v. Davis, 232 S.W. 211; State v. Singleton, 294 Mo. 346. (11) The court erred in giving Instruction "E" on behalf of the State, for the reason that no conspiracy was shown between Collins and defendant. There is no evidence offered by the State, outside of State's exhibits 1 and 2, that would even indicate that anyone was shot, or that the defendant had anything to do with the shooting of anyone. No premeditation shown on the part of the defendant, and there was no testimony upon which to base said instruction. State v. Hersh, 296 S.W. 433; State v. Creed, 299 S.W. 207. The giving of Instruction "E" was clearly error. The information did not allege that Collins was a party to the crime or that Collins and the defendant were acting in concert, neither is there any evidence, independent of the pretended confession, that Collins had anything whatever to do with the transaction. (12) The court erred in giving State's instruction "H," for the reason it in substance told the jury that if they believed from the evidence that the defendant made a statement or statements concerning the offense charged in the information, — they must consider the statements altogether in the light of the circumstances under which they were given. It was never shown that the defendant was informed by anyone that said statements might be used against him in the trial of his case. There was no independent proof of the commission of the crime charged from that of the alleged extrajudicial confessions, and there was no testimony offered by the State upon which to base said instruction. State v. Bennett, 6 S.W.2d 881; State v. Archer, 6 S.W.2d 912; State v. Young, 237 Mo. 170; State v. Crabtree, 170 Mo. 642.

Stratton Shartel, Attorney-General, and A.M. Meyer, Assistant Attorney-General, for respondent.

(1) The second count of the information correctly charges murder in the first degree by homicide committed in the perpetration of a robbery. Sec. 3230, R.S. 1919; State v. Adams, 316 Mo. 157; State v. Foster, 136 Mo. 655; State v. Barrington, 198 Mo. 40; State v. Peak, 292 Mo. 261; State v. Carroll, 288 Mo. 408; State v. Robinett, 279 S.W. 696; State v. Baker, 278 S.W. 987. (2) There was sufficient evidence of the corpus delicti to render the confession admissible. State v. Bennett, 6 S.W.2d 881; State v. Joy, 315 Mo. 19. (a) The medical testimony conclusively shows that deceased came to his death by a gunshot wound in the back, with traumatic peritonitis as the supervening cause. This sufficiently establishes the death of the deceased by a criminal agency. There is further the statement of deceased "I'm shot. Somebody tried to stick me up and said `Stick 'em up,' and I ran." (b) The fact of death by a criminal agency having been established, the confessions, as corroborated by the physical facts and the portions admittedly true, as well as by the testimony of Mason Lane and Mrs. Wingate, were properly received. State v. Yeager, 12 S.W.2d 32; State v. Barrington, 198 Mo. 23. (3) The confessions were admitted after the court heard testimony and determined they were voluntary, and were then admitted and considered by the jury under proper instructions requiring them to find they were voluntary. State v. Yeager, supra; State v. Lowry, 12 S.W.2d 469. The portions of the statements relating to other crimes were expressly withheld from the jury and were not read in evidence. (4) The statement made by deceased within a minute of the shooting and while deceased was still dazed from the shock of the bullet, was properly admitted as part of the res gestae. It rose naturally from the circumstances and was undersigned and spontaneous. It was a mere exclamation. State v. Hart, 309 Mo. 77. There was no dispute as to the substance of the statement. Defendant does not deny that Bush was shot in a hold-up. (5) Instruction E was justified by the statements which have been shown to have been properly admitted in evidence. No complaint is made of the form of the instruction. The information need not allege a conspiracy where the conspiracy is a mere incident and means to the crime charged. State v. Carroll Jocoy, 288 Mo. 407. (6) Instruction F was in a form many times approved by this court. State v. Williams, 274 S.W. 435. This instruction, in connection with Instruction E and the instruction on reasonable doubt, fully and fairly stated the law of conspiracy. State v. Williams, supra; State v. Sebastian, 215 Mo. 58. (7) Instruction H properly declared the law of confessions. Cases, supra; State v. Baker, 278 S.W. 987.

1. MURDER: Corpus Delicti: Confession: Order of Proof. It is not error to admit in evidence the voluntary confessions made by defendant before proof of the corpus delicti is offered, where no objection is made to the proof on that ground, but the only objection is that the confessions were obtained by coercion and intimidation; and particularly so, where essential elements of the corpus delicti are supplied by the confessions themselves, and are later fully proved by other evidence.

2. ____: ____: Deliberation: Attempt to Rob. The perpetration or attempt to perpetrate a felony stands in lieu of deliberation and premeditation, and homicide committed in that attempt is murder in the first degree. Proof from the nature of the wound that deceased was shot by some one else, and statements, made by him immediately after he was shot, that he was shot by some one who was attempting to rob him, is proof of the corpus delicti of murder in the first degree.

3. ____: Statement by Deceased: Hearsay: Res Gestae. Testimony by a witness that he heard a shot; that in a few seconds deceased staggered into his house and in the excitement stated, "I am shot;" and being asked by the witness, "What happened?" immediately answered: "Somebody tried to stick me up and told me to stick 'em up and I ran," was not hearsay, but the statement of deceased was res gestae and competent evidence to prove deliberation and premeditation. It was an exclamation, undesigned, spontaneous, and rising immediately out of the condition in which the wounded man found himself. And the interposition of the question by the witness, immediately prompted by the exclamation of the deceased, "I am shot," does not suggest a deliberate narrative.

4. ____: ____: Interpolated Question: Presumption: Corpus Delicti. When death ensues from a wound by a deadly weapon, in the absence of any explanatory circumstances a presumption of murder in the second degree arises. But where the deceased staggered into a near-by house within a few seconds after a shot was heard and exclaimed "I am shot," and physicians testify that he was shot in the back and explain the course of the bullet and the nature of the fatal wound, a case of murder in the first degree is made out. And even though the interpolation of a question by the witness, "What happened?" prompted by the exclamation "I am shot," and the reply of deceased, "Somebody tried to stick me up and told me to stick 'em up and I ran," are excluded as no part of the res gestae, still the exclamation and the testimony of the physicians prove the corpus delicti of murder in the first degree.

5. MURDER: Proof of Corpus Delicti: Confession. Proof of circumstances which correspond with the circumstances related in defendant's confession may be considered in determining whether the corpus delicti has been proven. Full proof of the corpus delicti independent of the confession is not required.

6. ____: ____: ____: Deliberation. The confession of defendant may supply additional details which show that the murder was accomplished in an attempt to rob deceased, and thereby prove murder in the first degree.

7. CONFESSION: Proof of Other Crimes. In the trial of defendant for murder, his confession is not wholly inadmissible simply because it states that he and his accomplice stole automobiles in towns and cities to which they had gone after the homicide; nor is the question whether proof of such other crimes was admissible, for consideration, where no part of the confession relating to them was read to the jury.

8. MURDER: Instruction: Joint Action: Confession as Proof. The confession of defendant that he and another determined to rob somebody and that the attempt to hold up deceased was a result of the agreement, affords sufficient proof for an instruction telling the jury that if defendant acted jointly and in concert with such other in an attempt to rob deceased, etc., they should find him guilty of murder, etc.

9. ____: ____: Controverted Facts: Statements Against Interest. An instruction telling the jury that if they find from the evidence that defendant made statements, they must consider them together in the light of the circumstances; that defendant is entitled to what he said for himself, if true, and the State is entitled to the benefit of anything he may have said against himself proven by the State, does not invade the province of the jury by assuming controverted facts, but is in the usual form of cautionary instructions relating to statements by defendant.

10. ____: ____: Punishment: Death or Imprisonment: Election to Prosecute for Robbery. An instruction telling the jury that, if they find defendant guilty of murder in the first degree, they should give due consideration to all the facts and circumstances proven, and in their discretion assess his punishment either at death or life imprisonment, cannot be twisted into an election by the State to prosecute defendant on an attempted robbery, on the theory that there was no proof of deliberation or premeditation. Proof that deceased was shot and killed by defendant in an attempt to rob him is proof of deliberation and premeditation, and such proof being present the instruction properly submits to the jury the charge of murder in the first degree.

11. ARGUMENT TO JURY: Not Preserved. If the motion for a new trial contains no reference to the argument of counsel, it cannot be held on appeal that the court erred in failing to reprimand counsel for the State for remarks made in his closing argument to the jury.

WHITE, J.

The appeal is from a sentence of death imposed upon the defendant after conviction of murder in the first degree.

One Alfred Lamm, a resident of Sedalia, February 4, 1928, just after he had finished his supper, heard a shot and almost immediately William Busch staggered into his house, saying that he was shot; that somebody had tried to stick him up, and he ran. Two physicians examined Busch, and found that he was shot in the hip from the rear, the bullet passing through his body and coming out near the median line in front. He was taken to the hospital and died February 10th, following.

Defendant Lawrence Mabry, in company with one Ellis Collins, went to Kansas City the following morning, and later went to Warrensburg and was there arrested, charged with the murder of Busch. While in the custody of the Sheriff of Johnson County, February 16, 1928, the defendant signed a written confession, in which he stated that in Sedalia he and Ellis Collins, about six-thirty, started out to hold up somebody. They saw "this guy." They told him to stick 'em up and he refused, and Mabry shot him. Collins did not have a gun. Mabry did not know that he had hit him until he saw "it" in the papers the next morning. Then he and Collins went to Kansas City, came to Warrensburg, and were arrested.

The next day, February 17, 1928, while still in the custody of the sheriff, defendant made another written confession, in which he went more into detail concerning the murder. He said that he and Collins, on February 4, 1928, abouty six-thirty decided to hold up somebody. They hid in an alley to wait, and they saw a man coming along. Defendant stepped out, pointed his revolver at him, and told him to hold up his hands, and the man then turned and ran past. He ran about forty or fifty feet when the defendant fired at him. Right after the shot defendant turned and ran. Defendant did not see Collins any more until next morning. Before that he had seen an item in the papers about William Busch having been shot. The two, Sunday night, February 5th, decided they had better leave town. The statement then describes the way they traveled and the subsequent arrest.

The defendant objected to these confessions on the ground that they were not voluntary, but forced by the officers. The State put on the sheriff and other witnesses to prove that the statements were voluntary.

Rose Mary Burrowes, reporter for the Sedalia Democrat, testified that, after the statements signed by the defendant had been made, she heard a conversation between Mr. Rucker, the prosecutor, and the defendant, in which defendant said that he did not want to talk any more about the case; he had made a confession and told the sheriff everything.

Allen Scruton, advertising man for the Sedalia Democrat, testified that he heard Mr. Rucker say to the defendant, "You know who I am, don't you?" Defendant answered, "Yes." Then Judge Couey said, "We are going to ask you some questions, and anything you say will be used against you on the trial." Defendant said he understood; that he had already made a statement to the Sheriff of Johnson County, and did not feel like going over the same thing already signed. Other witnesses testified to statements made by defendant to the effect that he had made his statement to the sheriff, and did not care to talk further.

The defense was an alibi. The defendant introduced a number of witnesses in the attempt to show that he was not at the place where Busch was shot at or about the hour when the shooting took place.

The State, in rebuttal, offered evidence of several witnesses to show that defendant had a bad reputation.

I. Error is assigned to the admission by the trial court of the confessions on the ground that the corpus delicti was not first proven so as to make them admissible. It may be noted Proof of that, when the confessions were offered in evidence, Corpus the defendant did not object on that ground, but Delicti. objected only on the ground that the confessions were obtained by coercion and intimidation, and offered evidence to that effect.

The evidence tending to show corpus delicti appears in the statement of Alfred Lamm and the physicians. Lamm heard a shot just after he had finished supper; he and his family were sitting at the table and discussing the shot when the front door opened and William Busch staggered in and said, "I am shot." The witness asked, "What happened? Busch replied: "Somebody tried to stick me up and told me to stick 'em up and I ran." The bullet entered the left hip below the crest of the hip behind the ileum, ranged upward and forward and came out about an inch and a half to the left and an inch below the navel. From the nature of the wound the deceased must have been shot by some one else. That he was shot by some one, who was intending to rob him, is shown by his statement immediately afterwards. That would constitute murder in the first degree. The perpetration or attempt to perpetrate a felony stands in lieu of deliberation and premeditation, and a homicide committed in that attempt is murder in the first degree. [State v. Bobbitt, 215 Mo. l.c. 33; State v. Garrett, 276 Mo. l.c. 313, and cases cited.] These decisions have been followed by other cases to that effect, so on that evidence the corpus delicti of murder in the first degree was fully made out.

II. It is claimed, however, by defendant that the evidence of Lamm as to the statement made by Busch on coming into his house was not competent because hearsay. Busch staggered Res Gestae. into his house in the excitement of the moment, apparently without knocking. From the time Lamm heard the shot until Busch made the statement was a matter of seconds. Lamm testified it was just time for his daughter to run down a flight of stairs. The statement of Busch under the circumstances was res gestae and therefore admissible. A very similar condition was presented in the case of State v. Hart, 309 Mo. 77, l.c. 88, where several cases are cited. There can be no question as to the first part of the statement, "Mr. Lamm, I am shot." It was an exclamation, undesigned, spontaneous, and rising immediately out of the condition in which the wounded man found himself. The following statement, "Somebody tried to stick me up and told me to stick 'em up and I ran," while in the form of a narrative in answer to a question, is a part of the same statement, so immediately connected with his exclamation that it comes within the rule laid down in the Hart case.

The interposition of the question by Mr. Lamm did not suggest a deliberate narrative of the cause of Busch's injury. Lamm did not ask "How did you come to be shot?" or "What was the cause of the trouble?" or "Who was it shot you?" but "What happened?" Busch had come in with the exclamation, "I have been shot." Lamm, as if not clearly understanding, asked "What happened?" It was the excitement in Busch's mind induced by the fatal wound a few seconds before, which caused him without premeditation to say what in fact had happened. Somebody tried to hold him up, and shot him as he ran.

But even if that part of the statement is excluded and we consider only the exclamation, "Mr. Lamm, I am shot," followed by the testimony of the physicians showing the nature Supplied by of the wound, it makes out a case of murder. There Confession. is a rule that when death ensues from a wound by a deadly weapon, in the absence of any explanatory circumstances a presumption of murder in the second degree arises. Here is the exclamation that the victim had been shot. He was shot from the back. The proof of a murder was thus established. It is not necessary that a complete corpus delicti, such as would warrant a conviction by connecting the defendant with it, must be proven independent of the confession. It has been said in several instances, "The proof of circumstances which correspond with the circumstances related in the confession may be considered in determining whether the corpus delicti has been proven." "Full proof of the corpus delicti independent of the confession of the defendant is not required." [State v. Morro, 313 Mo. l.c. 108; State v. Emerson, 318 Mo. l.c. 643; State v. Skibiski, 245 Mo. l.c. 463; State v. Flowers and Jones, 311 Mo. l.c. 515.] Here is clear proof of a murder without proof of deliberation and premeditation. But the circumstances justify an inference that there was something more than a mere combat. The confession of the defendant supplies additional details, which show that the murder was accomplished in an attempt at robbery, and murder in the first degree as charged was proven.

III. It is further claimed that the confessions were inadmissible because they contained proof of other crimes. Each of those confessions states that the defendant and Confessions. Collins stole a Pontiac in Kansas City and also a Chevrolet coupe in Kansas City, and also stole a Ford Tudor in Warrensburg and other articles. However, when the confessions were read to the jury, all those parts of each confession relating to stealing were omitted. They were not presented to the jury, and we are not confronted with the necessity of determining whether the proof of other crimes in making their escape was admissible in evidence against this defendant.

Defendant, however, argues that simply because those things were in the confession, the whole confession was inadmissible. We are unable to find any reason or authority for such a position.

IV. Appellant assigns error to the giving of Circumstantial Instruction "D" on circumstantial evidence. That Evidence. instruction is in the usual form often approved by this court.

V. Appellant assigns error to the giving of Instruction "E" by the court, which told the jury that if the defendant Lawrence Mabry acted jointly or in concert with Ellis Concerted Act: Collins, etc., in an attempt to rob deceased, Confession as etc., they should find him guilty. The objection Proof. is that there was no evidence to show that they were acting jointly. The confession of the defendant was that he and Ellis determined to rob somebody, and that the attempt to hold up Busch was the result of that agreement. The instruction was warranted by the evidence. The same may be said of Instruction "F," to which the appellant objects.

VI. Appellant further assigns error to the giving of Instruction "H" on the ground that it invades the province of the jury by assuming controverted facts. That Controverted instruction tells the jury that, if they find from Facts. the evidence that the defendant made a statement or statements, they must consider the statements together in the light of the circumstances; that the defendant was entitled to what he said for himself, if true, and the State was entitled to the benefit of anything he may have said against himself, proven by the State. In general the instruction is in the usual form of such cautionary instruction relating to statements by defendant.

VII. Appellant further objects to the giving of Instruction "J," which told the jury that, if they should find the defendant guilty of murder in the first degree, then they Election to should give due consideration to all the facts and Prosecute circumstances proved, and in their discretion for Robbery. assess his punishment either at death or life imprisonment. The objection to that instruction is a long argument to the effect the State elected to prosecute the defendant on attempted robbery, in that there was failure to prove actual robbery, and that said instruction is not based on the evidence. We are unable to find any validity in that assignment. Throughout the argument of the defendant is that under the circumstances there is no proof of murder in the first degree, that the killing was not proved to be deliberate and premeditated, and that the instructions on murder in the first degree were therefore erroneous, each of which is quite beside the question, as we have pointed out above. It was unnecessary to prove those elements of the crime; the attempt to rob takes the place of deliberation and premeditation.

VIII. Appellant assigns error to the failure of the court to reprimand counsel for the State for remarks made in the Argument course of the closing argument. We are unable to find to Jury. in the motion for a new trial any reference to the argument of counsel.

The sentence was pronounced June 28, 1928, ordering the execution of defendant July 30, 1928.

The judgment is affirmed and execution ordered in accordance therewith, Friday, Jan. 31, 1930. All concur.

STATE v. MABRY

THE STATE v. LAWRENCE MABRY, Appellant.

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