Summary
In State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22 the court held the testimony of a co-conspirator was sufficient to establish a conspiracy.
Summary of this case from State v. HollowayOpinion
December 11, 1929.
1. INDICTMENT: Murder: Conspiracy. It is not necessary that an indictment charging murder in the first degree charge a conspiracy or that the murder was committed pursuant to a conspiracy.
2. INSTRUCTION: Murder in First Degree. Defendant, convicted of murder in the second degree, cannot complain of error in a given instruction defining murder in the first degree.
3. ____: ____: Conviction of Murder in Second Degree. Defendant cannot complain that he was convicted of murder in the second degree on the ground that the evidence showed him guilty, if at all, of murder in the first degree. To give an instruction for murder in the second degree, where the evidence shows defendant guilty of murder in the first degree, if guilty at all, if error, is error in defendant's favor, and no ground of reversal.
4. ____: Referring Jury to Another: Definitions. An instruction for murder in the second degree which refers the jury to another instruction for the definition of "wilfully," "premeditatedly," "malice" and "malice aforethought," all of which are correctly defined in such other given instruction, is not error, but the reference is sufficient without repeating the definitions.
5. ____: Murder in Second Degree: Intentional. An instruction for murder in the second degree which requires the jury to find that the killing was done wilfully, premeditatedly and with malice aforethought, requires them to find that the killing was intentional, though the word "intentional" is not used.
6. ____: Refusal: No Showing. Allegations in a motion for a new trial do not prove themselves, and though it alleges that the court erred in refusing certain instructions on the subject of alibi requested by defendant, the court cannot consider such alleged error where the bill of exceptions does not show any such instructions, or that any instructions whatever were requested by appellant, or any exception was saved to the refusal of any instruction requested by him, or to the failure of the court to instruct on all the law of the case.
7. ____: Reasonable Doubt: Qualification. An instruction telling the jury that if they have a reasonable doubt of defendant's guilt, they should acquit him, "but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence," does not contain a qualification that destroys the legal effect of reasonable doubt.
8. ____: Blending Reasonable Doubt and Presumption of Innocence. An instruction telling the jury that "the law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes his guilt . . . beyond a reasonable doubt; and the burden of proving his guilt rests upon the State," and "if this presumption has been overcome by the evidence and the guilt of defendant established beyond a reasonable doubt, your duty is to convict," but "if . . . you have a reasonable doubt of the defendant's guilt, you should acquit," does not so blend presumption of innocence and reasonable doubt as to minimize the effect of any doubt which may exist in the minds of the jury, but is clear and concise, and sufficient on both subjects.
9. ____: Testimony of Accomplice: Corroboration: Discredited Witnesses. A defendant charged with murder may be convicted upon the uncorroborated testimony of an accomplice, if it is sufficiently substantial to convince the jury of his guilt, and it is not error to so instruct them, nor is such an instruction rendered erroneous because the State has attempted to prove corroboration by witnesses who may have been discredited or impeached by a showing of their previous criminal conduct or perjury.
10. ____: ____: Conspiracy. The conspiracy to commit the murder may be shown by the testimony of the accomplice and co-conspirator, and an instruction telling the jury that the defendant may be convicted upon the uncorroborated testimony of the accomplice is not erroneous, although it does not tell them that the testimony of the accomplice that there was a conspiracy must be corroborated. [Distinguishing State v. Loeb, 190 S.W. 299.]
11. EVIDENCE: Union Membership: Materiality. The State having proved that accomplices of defendant had belonged to a labor union, and that defendant had asked a witness for an application blank which was not furnished because the request was not accompanied by a recommendation as required by the brotherhood rules, and defendant having testified that he did not and never had belonged to a union, it was not error to admit the evidence pertaining to the membership of the accomplices.
12. ____: Explanatory Facts: Railroad Employees: Seniority. The admission of evidence pertaining to the seniority rights of railroad employees is not error, where it gives the jury information of the surroundings and situation relating to the parties involved in the murder and tends to explain the feeling of defendant and his associates towards deceased.
13. ____: Conspiracy: Conversations: In Absence of Defendant. Testimony relating to statements made by co-conspirators during the existence of the conspiracy and in furtherance of its purposes, in the absence of defendant, is admissible against him in his trial for murder. And to be admissible it is not necessary that it be shown that the conspiracy was to kill deceased, but it is sufficient to show that its purpose was to take deceased from his room, carry him away and subject him to the cruel treatment of the conspirators and that in the accomplishment of that purpose the defendant killed deceased.
14. ____: No Objection: Competency: Self-Serving. If no objection was made to the testimony of a witness that he had told his wife and brother what he knew about the killing of deceased and that what he told them was the truth, any complaint as to the competency of the testimony cannot be considered on appeal.
15. ____: Motion for New Trial. An objection to testimony must be saved in the motion for a new trial in order to be urged as error in the appellate court.
16. ____: Rehabilitation. It is not error to permit a witness to relate what the principal witness for the State, who has been impeached and who was an accomplice in the crime and has been promised leniency, told him a day or two after the homicide, where such statements correspond to the impeached witness's testimony at the trial and tend to rehabilitate him.
17. ____: Cross-Examination: Interested Witness: Rejection: Correction. The refusal of the trial court to permit defendant on cross-examination of a witness for the State to prove that, after his arrest and while in custody, bail had been denied him, he was accorded privileges and shown favors usually denied other prisoners, and that he expected leniency in his own case in return for his testimony, is cured by a subsequent permission of the court to defendant to cross-examine the witness fully on such matters.
18. ____: Remote: Motive: Connection. It is not error to refuse to permit defendant to testify that four years prior to the murder of the deceased railroad brakeman, there was a shopmen's strike in another city and his duties were to protect non-union men against the strikers, there being no connection between that strike and the homicide, or between it and deceased, and the fact sought to be proved could have shed no light upon motive or any other question involved.
19. EVIDENCE: Honest Endeavor. It is not error to refuse permission to defendant to testify that after the homicide he was honestly endeavoring to find out who committed the crime, where he was permitted to testify as to his acts and conduct in trying to discover the murderer.
20. ____: Testimony at Coroner's Inquest: Impeachment: Confronting Witness. The testimony of a witness for defendant, given at the coroner's inquest, reduced to writing and signed by him, may be used on cross-examination to impeach his testimony at the trial by calling his attention to certain questions and answers found therein, and then by reading to the jury in rebuttal such questions and answers; and the reading of them to the jury cannot be excluded on the ground that defendant was not confronted by such witness at the coroner's inquest.
21. ____: Clothing of Deceased: Bed Sheet. To admit garments of deceased which tend to throw light on material matters at issue, is not error. Where deceased was sleeping in an upstairs room in a boarding house, the admission in evidence of the bed sheet, on which were two or three small blood spots, for the purpose of throwing light on what occurred in the room and to corroborate the testimony of a witness that deceased was struck on the head with a pistol as he leaned over the bed, producing a wound from which blood dropped on the sheet, cannot inflame the minds of the jury, and is not error.
22. ____: Conspiracy: Order of Proof. As a general rule proof of statements made by conspirators should not be admitted before a conspiracy is shown; but the rule is not inflexible, and the order in which proof may be offered is largely within the discretion of the trial court; and where, when proof of such statements was admitted, there were circumstances from which inference of a conspiracy might be drawn, and after its admission another witness furnished direct evidence of the conspiracy and of the three conspirators, there was no abuse of the discretion.
23. QUOTIENT VERDICT: Impeachment by Jurors. Jurors cannot impeach their own verdict; and the affidavits of five jurors that the jury agreed that each would write down the length of term of imprisonment he thought should be imposed, and then the figures would be aggregated and the sum divided by twelve and the quotient would be the term to be imposed, should be stricken from the files.
24. ____: Impeached by Loose Paper. A paper found in the jury room a few minutes after the return of the verdict on which appeared a column of figures ranging from 10 to 99, giving a total of 526 and an apparent division by 12, and a resultant quotient of 43, cannot be held to be proof that the jury arrived at their verdict assessing defendant's punishment at imprisonment for a term of 43 years, by agreeing that each would write down the length of the term of imprisonment he thought should be imposed, and then the figures would be aggregated and the sum divided by twelve, and the quotient would be the term of imprisonment to be imposed by their verdict, unless such paper is shown to be in the handwriting of some member of the jury. Besides, such paper is proof that if such an agreement was made, it must have been abandoned, because 526 divided by 12 does not produce a quotient of 43, but one of 43 years and ten months.
25. ____: Agreement. If the jurors have not bound themselves in advance to accept the unascertained quotient as their verdict, but after the quotient is ascertained they adopt it as their verdict, the fact that they fell upon that method of reaching an agreement will not ordinarily vitiate their verdict.
Appeal from Cape Girardeau Circuit Court. — Hon. E.M. Dearing, Special Judge.
AFFIRMED.
J.A. McCollum and Spradling Dalton for appellant.
(1) The defendant was entitled to an instruction advising the jury that unless his guilt was proven beyond a reasonable doubt, the jury should give him the benefit of the doubt and acquit him. No such instruction was given. Instruction 5 so blended the subjects of presumption of innocence and reasonable doubt as to minimize the effect of any doubt which might have existed in the minds of the jury. Defendant was entitled to a clear and concise instruction on reasonable doubt, but it was not given, and the failure to do so was error. Sec. 4025, R.S. 1919; State v. Douglas, 258 Mo. 281; State v. Clark, 147 Mo. 20. (2) The failure of the court to give necessary instructions in felony cases, without request or exception by defendant, is good cause for new trial. State v. Conway, 241 Mo. 271; State v. Connor, 252 S.W. 718. (3) The court permitted George Fowler, over the objection and exception of defendant, to state that he had told his wife, brother and mother-in-law just how deceased had been killed, and to relate the conversations with reference to the killing. The homicide had already been accomplished and the statements were self-serving and narratives of past occurrences and not inadmissible. State v. Forshee, 199 Mo. 142; State v. Harris, 150 Mo. 56; State v. Schaeffer, 172 Mo. 335; State v. Buckley, 298 S.W. 777. George Fowler was a co-indictee with defendant, and, according to his testimony, an accomplice, and it was to his interest to speak and testify falsely. The statements made by him were self-serving and the testimony of J.W. Fowler, a brother, repeating the conversation with his brother with reference to the killing of Hargett was hearsay and highly prejudicial. State v. Creed, 252 S.W. 680; State v. Tippett, 296 S.W. 134; Legere v. State, 77 S.W. 1060. (4) The State, over the objection and exception of defendant, exhibited and sought to have admitted in evidence the bloody clothing of deceased. The offer was refused. There was no question about the identity of deceased, the nature of the wounds, and their location, character, or fatality. The exhibition and offer to introduce them in evidence was highly prejudicial to defendant. State v. Creed, 252 S.W. 681; State v. Reninson, 267 S.W. 853; State v. Pearson, 270 S.W. 351. The court admitted in evidence the bloody sheet on the bed in the room from which deceased is alleged to have been taken. At no time during the trial was there a controversy about the blood on the sheet, or the wounds of deceased, and the admission of the sheet in evidence was inadmissible, highly prejudicial and inflammatory. Cases supra. (5) The court permitted Crader and Maxwell to testify to conversations and statements between themselves, Fowler, Lasley, Horstman, Stokely, and others. At the time these conversations were received in evidence, no conspiracy was shown to exist, and such conversations and statements were not competent and the court erred in admitting them. State v. Kennedy, 177 Mo. 98; State v. Weaver, 165 Mo. 1; State v. Thompson, 238 S.W. 787; State v. Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32. (6) It was error to admit in evidence the statements, conversations and threats alleged to have been made by Fowler and Lasley against deceased without a preliminary showing that defendant was present at the time, or the existence of a conspiracy, or a common purpose on the part of all defendants to kill deceased. At the time these conversations, statements and threats were received in evidence, the State had only shown that Fowler and Lasley belonged to the Brotherhood of Railway Trainmen and that deceased did not. It was error to admit this character of evidence. State v. Austin, 183 Mo. 478; State v. Faulkner, 175 Mo. 546. (7) The only evidence offered by the State to show a conspiracy was the statement alleged to have been made by Fowler and Lasley to Crader, Maxwell and others. Fowler and Lasley were jointly indicted with defendant and, according to the State's theory of this case, they were co-conspirators with defendant, and it is a well-established principle of law that a conspiracy cannot be established by the conspirators alone, but must be shown by other facts and circumstances independent of their statements. State v. Loeb, 190 S.W. 304; State v. Gilmore, 132 N.W. 53. (8) The State, without incompetent, irrelevant and illegal testimony sought to show a conspiracy to kill deceased. The existence of such conspiracy was not established by competent and relevant evidence, but the evidence admitted to establish such conspiracy was highly prejudicial and poisoned the minds of the jury against defendant. One-half the evidence was devoted to the establishment of a conspiracy, and the court failed and neglected to give one single instruction on this question. This cause was submitted to the jury without a definition of conspiracy, or the essentials constituting the same. The defendant submits that under the law and in justice to himself, the court should have given an instruction on this question. Sec. 4025, R.S. 1919; also Cases supra. (9) The court permitted Bisplinghoff to state that he was a member of the Brotherhood of Railway Trainmen; that Lasley and Fowler were members of the same organization; that deceased had sought an application for membership in the organization, but had been refused. Deceased at the time of his death was not a member of the organization, but was referred to as "scally" or "scab." This testimony was offered for the purpose of showing a motive on the part of defendants Lasley and Fowler for the killing of deceased. The defendant offered to show that in 1923, when first employed by the Frisco, he was put to work at Springfield; that at that time the shopmen's strike was in progress, and that non-union men had taken the places of union men in the shops; that his first duties with the Frisco were to protect the non-union men against the union strikers. Defendant contends that he should have been permitted to make such showing. It disclosed his relationship with the Brotherhood of Railway Trainmen and was some evidence to rebut the motive which the State had endeavored to show. State v. Punshon, 124 Mo. 448; State v. Liolios, 225 S.W. 941; State v. Everhart, 289 S.W. 604. (10) The State was permitted to cross-examine T.M. Stokely concerning his evidence of the coroner's inquest and to introduce the testimony of Stokely at the inquest in evidence. Defendant was not present at the inquest when the testimony was taken, did not examine or cross-examine the witness and had no opportunity to face him at the time he was giving such testimony, and the introduction of such testimony was wholly incompetent and highly prejudicial. People v. Dewitt, 206 N.W. 564; State v. Squires, 98 P. 413; State v. Corcoran, 61 P. 1034; Campbell v. State, 116 S.E. 807; People v. Scott, 129 N.E. 798; State v. Mullins, 101 Mo. 514. (11) The defendant offered to show by George Fowler, the self-confessed accomplice, that he had been promised total or partial immunity. The defendant offered to make this proof by facts and circumstances; that is to say, the carrying of the key to his room, the going to the grocery store and buying his tobacco and groceries, being at liberty on the streets, the officers taking him to Chaffee to visit his family, the bringing of his family to Benton to visit him, the keeping him at a private home in Jackson during the first trial, and many other facts and circumstances which indicated that he had been promised total or partial immunity. The court refused to admit this testimony and we submit it was error. 1 Am. Eng. Cyc. Law 2d 399; 40 Cyc. 2511; State v. Kent, 27 L.R.A. 686, 694; State v. Ritter, 231 S.W. 606. (a) In his effort to show by facts and circumstances that Fowler had been promised immunity, the defendant asked Fowler a number of questions with the view of disclosing such facts, but the court sustained objections to the competency of the questions with the remark that the answer would shed no light, or that he did not think the question competent for that purpose. (b) On the following day the court permitted defendant to be further examined, but admonished the jury that: "You will continue to remember wherever the court sustains an objection, the jury should not consider that as evidence." The ruling of the court on the admissibility of evidence during the first day of the trial, prejudiced the jury against defendant, and the subsequent admission of such evidence did not cure the error. State v. Taylor, 118 Mo. 153; State v. Davis, 225 S.W. 707; Kribs v. Light Co., 215 S.W. 762; Rooker v. Railroad, 226 S.W. 69. (12) The verdict of the jury was a chance verdict and not its deliberate judgment. It was the result of chance and self-imposed coercion and exchange of views. The affidavits of defendant, the jurors, the deputy sheriff and the exhibit found in the jury room are conclusive proof as to the method of the jury in arriving at a verdict, and such verdicts have been uniformly held as erroneous. 27 R.C.L. 847; State v. Branstetter, 65 Mo. 149; Sawyer v. Railroad, 37 Mo. 240; State v. Linn, 223 Mo. 98.
Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent; M.E. Montgomery, James A. Finch and R.L. Ward of counsel.
(1) The indictment is sufficient, containing all the necessary allegations to charge the crime of murder. It fully informs the defendant of the charge he is required to meet, and is in a form similar to many approved by this court, and is not challenged by the appellant. Sec. 3230, R.S. 1919; State v. Bracey, 267 S.W. 809; State v. Conley, 255 Mo. 185; State v. Clay, 201 Mo. 687; State v. Privitt, 175 Mo. 207. (2) The question of reasonable doubt was fully covered by the court's Instruction 5, which correctly stated the law and is in a form approved by this court. State v. Neuslein, 25 Mo. 124; State v. Clayton, 100 Mo. 522; State v. Bond, 191 Mo. 564; State v. Nerzinger, 220 Mo. 49; State v. Arnett, 210 S.W. 84. (3) After George Fowler had been impeached on cross-examination by showing that he testified before the coroner's jury that he had no knowledge of the killing of Hargett, he testified that immediately after the killing and before he testified before the coroner, he had told his wife, brother and mother-in-law the facts regarding the homicide. This was not error, because (a) the witness did not relate the conversation he had, but merely stated he told them, and (b) the testimony was admitted without any objection by defendant and therefore is not subject to review. State v. Conley, 12 Mo. 462; State v. Crab, 121 Mo. 554; State v. Peak, 85 Mo. 190; State v. Levy, 262 Mo. 181. (4) After an attempt had been made to show that State's witness, George Fowler, was testifying under improper influences or motives and that he had made contradictory testimony before the coroner, it was proper for the State to prove that he had made statements similar to his testimony at the trial, before he could have been affected by such influences, motives or inducements, and therefore the testimony of witness J.W. Fowler was competent to rehabilitate witness George Fowler. State v. Trippett, 296 S.W. 134; State v. Maggard, 250 Mo. 335. This question is not before the court for review because not raised in the motion for new trial. (5) Complaint as to the bloody clothing of deceased is not well founded, because the transcript shows that they were not even in the court room, and objection to their being received in evidence was made by defendant and sustained by the court. There is nothing here for review, because, no exception was saved by defendant, and the matter here urged was not raised in the motion for new trial. (6) The sheet taken from the bed in Hargett's room was competent as throwing relevant light upon a material matter at issue, i.e., upon what transpired in Hargett's room just prior to the murder. State v. Porter, 207 S.W. 777; State v. Long, 209 Mo. 382; State v. Miles, 199 Mo. 546; State v. Thornhill, 177 Mo. 696. (a) It was not of a character as could be properly described as demonstrative evidence. The appellant calls it a bloody sheet, but the evidence shows that it contained only two or three spots of blood about the size of a dime. (b) It was competent as corroborating the testimony of witness Fowler as to Hargett being assaulted and taken forcibly from room 4 of Horstman's rooming house. State v. Wilson, 223 Mo. 189; State v. Larkin, 250 Mo. 218; State v. Miles, 199 Mo. 546; State v. Rasco, 239 Mo. 535; State v. Hopkins, 278 Mo. 388. (7) There was no error in the admissibility of the testimony of Crader and Maxwell. There was ample evidence of a conspiracy between the defendant, Fowler and Lasley. Conversation with Horstman was in the presence of the defendant and no testimony of any conversation by these witnesses with Stokely. It is immaterial whether the conspiracy was established before or after the testimony of the witnesses in question, since such conspiracy was actually established. State v. Walker, 98 Mo. 95; State v. Fields, 234 Mo. 615; State v. Parr, 246 S.W. 903; State v. Reich, 239 S.W. 835; State v. Flanders, 118 Mo. 227. (a) A statement made by one of the parties to a conspiracy during the existence of such conspiracy, and bearing upon the object or purpose of such, is admissible against all, even though not in their hearing or presence. State v. Shields, 296 Mo. 402; State v. Samis, 296 Mo. 486; State v. Darling, 199 Mo. 201; State v. Fields, 234 Mo. 623; State v. Bersch, 276 Mo. 414; State v. Bobbitt, 228 Mo. 266. (b) The defendant could have been convicted on the uncorroborated testimony of an accomplice, and the statement in appellant's brief that "it is a well established principle of law that a conspiracy cannot be established by the conspirators alone, but must be shown by the facts and circumstances independent of their statements" has no reference to testimony given in court by a conspirator, but applies to statements of a conspirator out of court and testified to by some third party. State v. Cummings, 279 Mo. 209; State v. Shelton, 223 Mo. 127; State v. Bobbitt, 215 Mo. 41; State v. Croft, 253 S.W. 228. (c) The conspiracy was established by both the direct testimony of one of the conspirators and facts and circumstances detailed by many witnesses. A conspiracy may be proven by circumstantial evidence alone. State v. Walker, 98 Mo. 104; State v. Miller, 191 Mo. 608; State v. Fields, 234 Mo. 623; State v. Kolafa, 291 Mo. 347; State v. Kinnaman, 285 S.W. 64; State v. Strait, 279 S.W. 113. (8) The appellant's complaint relative to failure of the trial court to instruct on and to define conspiracy is without merit, because, (a) Appellant requested no such instruction. State v. Bond, 191 Mo. 555; State v. McCarver, 194 Mo. 717; State v. Conway, 241 Mo. 271. (b) Did not raise the question in his motion for a new trial. Sec. 4079, Laws 1925, p. 198. (c) Because the State was not attempting to convict the defendant on the theory that he was guilty solely because he was a party to the conspiracy but that he actually fired the fatal shot. (9) The excluded testimony relating to defendant's employment in 1922 by the railroad to protect non-union men was irrelevant, too remote and on a collateral issue, and was properly excluded. State v. Elvins, 101 Mo. 243; Stole v. Heath, 141 S.W. 26. (10) Defendant's witness Stokely was properly cross-examined as to his former testimony, for the purpose of impeachment and appellant's complaint is without merit. Contradictory testimony given by a witness is admissible for the purpose of impeachment. State v. Wicker, 222 S.W. 1014; State v. Eastham, 240 Mo. 241; State v. Curtner, 262 Mo. 214. (11) A jury's verdict cannot be impeached by the affidavit of the jurors. State v. White, 289 S.W. 953; State v. Shields, 296 Mo. 401; State v. Rumfelt, 228 Mo. 443; State v. Palmer, 161 Mo. 175. Nor by a paper found in the jury room. State v. Linn, 223 Mo. 98; State v. Wood, 124 Mo. 417; Thompson v. City, 17 S.W.2d 976.
In the Circuit Court of Cape Girardeau County, defendant was convicted of murder in the second degree and sentenced to forty-three years' imprisonment in the penitentiary, from which he appeals. One B.M. Hargett was murdered at Chaffee, in Scott County, on October 17, 1927. Appellant and two others, Coy Lasley and George Fowler, were jointly indicted for the crime, the indictment charging murder in the first degree, and upon their application were granted a change of venue to the Circuit Court of Cape Girardeau County, where Lasley and Stogsdill filed affidavits disqualifying the regular judge and thereupon Hon. E.M. Dearing, judge of the Twenty-first Judicial Circuit, was called to try the case. A severance was granted, and in this case appellant Stogsdill alone was tried.
In brief outline the evidence on behalf of the State was to the following effect:
Lasley, George Fowler and the appellant lived at Chaffee, and were in the employ of the St. Louis-San Francisco Railroad Company, referred to as the Frisco. Lasley and Fowler were brakemen, having been so employed on the Frisco for a number of years, and were members of the Brotherhood of Railway Trainmen. Stogsdill was a special agent for the railroad company, his duties being to protect railroad property and aid in investigating offenses against same. Hargett, the deceased, was a brakeman who had come to Chaffee from his home in Jonesboro, Arkansas, to seek work with the Frisco, the day before he was killed. He did not belong to the above-mentioned organization, nor did appellant.
A year or so prior to this time the Frisco had taken over and begun to operate a line of railroad known as the Jonesboro, Lake City Eastern Railroad, referred to as the J.L.C. E., and thereafter the seniority of employees of both roads was intermingled; that is, an employee of the J.L.C. E. could come to the Frisco without losing his seniority rights of employment. It seems that an employee longer in the service had the right to displace, "bump," one who was junior to him in the same branch of service. The Frisco maintained in the office at Chaffee a board called the extra board upon which would be written the names and local addresses of men seeking work and when there was work for them they would be called. When Hargett arrived at Chaffee he registered at the office and his name was placed on the extra board. He obtained a room at the Horstman rooming house. It is not shown that he had seniority rights over Lasley or Fowler. It does appear from Fowler's testimony that while they had not previously known Hargett personally, Lasley, Fowler and appellant looked upon his as a "scab" and that they resented his coming to Chaffee; that Stogsdill said if Hargett would scab on railroad men he would scab on him (Stogsdill), and that they decided and agreed on the afternoon of October 17th that they would take him out that night and give him a whipping and run him out of town. Lasley, Fowler and appellant had known each other for some time and were on friendly terms. It further appears that Lasley, Fowler and appellant were together a good part of the afternoon of the 17th, one Stokely being with them part of the time, and that they consumed a large quantity of whisky. During the afternoon the three alleged conspirators made the arrangement above mentioned to take Hargett out that night.
In the evening shortly before seven o'clock, Fowler inquired of John Crader, call boy at the Frisco office, where Hargett could be found, and was informed that he was in room 4 at Horstman's. Asked by Crader why he wanted to know where to find Hargett, Fowler said Hargett was king of the scalies, from Jonesboro. Appellant and Lasley were at the time sitting in Lasley's Ford touring car in front of the office. Fowler got in with them and the three drove away. They drove to appellant's home, where appellant procured his pistol, which he gave to Lasley. Returning to the business center of the town they presently drove into the parking space in the street in front of Horstman's rooming house, which was upstairs over a business place, and stopped. Appellant remained in the car while Lasley and Fowler went up to Hargett's room, masking their faces with handkerchiefs as they went up the stairs. Hargett had retired. They compelled him to get up, telling him they were going to take him for a ride, and searched him for weapons, finding none. Hargett drew on his shirt, overalls and shoes, but was not given time to button his shirt or lace his shoes. While he was stooping over to lace a shoe, with his foot resting on the edge of the bed, Lasley struck him on the head with the pistol he carried, producing a wound from which blood dropped on the bed sheet, and on the floor and stairs as they descended. They took him to the car and compelled him to get in the back seat where appellant was waiting. Lasley handed the pistol to appellant, he and Fowler got in the front seat, and they drove away, Lasley driving. When they had driven about four blocks three shots were fired in the back part of the car; Hargett cried out: "Oh, Lordy; help, help," and almost immediately fell or was pitched out of the car, which was still moving and did not stop. Fowler testified that as they drove on Lasley asked appellant if he had shot Hargett, to which appellant replied that he had put them every one right through the damn son-of-a-bitch; that they then drove by a route, which he described, to appellant's office, where they locked the door, put out the lights and held a short conference, agreeing to keep silent about what had occurred, and then separated.
Hargett's dead body was found in the street very shortly after the shooting. At least two of the bullets had passed through the chest, one going through the heart, and one had passed through his arm. The flesh and clothing about the wound in the arm were powder-burned. Either wound in the body would have been fatal. One bullet only had lodged in the body.
Next morning Lasley's car was examined. A bullet corresponding to the one taken from Hargett's body was found embedded in the upholstering of the back seat. Another had passed through the upholstering and the metal behind it, the hole in the metal showing that it was freshly made and by a bullet passing from inside to outside of the car. Blood stains were found on parts of the car beneath the floor boards, where it had evidently trickled through that part of the floor between front and rear seats. The car had been freshly washed inside between the front and rear seats, as had the floor mat covering that portion of the floor, but other parts of the car had not been washed recently. The door of Lasley's garage, which for a considerable time preceding the night of the homicide had been lying on the ground unused, was closed and wired shut. There is no room for doubt that Lasley's car was the one in which the murder was done.
For some time following the killing appellant was not suspected and during that time appeared to be trying to aid officers in their efforts to find out who committed the crime. He was arrested in January, 1928, the other two having been arrested previously. At the trial defendant denied participation in or knowledge of the offense. He and members of his family testified that he was at home at the time when the evidence shows Hargett was killed. The evidence relative to alibi was contradicted by evidence other than that of Fowler, offered by the State. By way of impeachment it was shown that appellant had been convicted of grand larceny in his youth, and of burglary when a young man, and he was shown to have made statements contradicting his testimony that he had not taken a drink on the day of the killing. Further facts will be noted in connection with the points to be discussed.
I. The indictment is challenged in the motion for new trial on the grounds that it does not state facts sufficient to constitute any offense and that it does not charge a conspiracy or agreement to kill deceased. It was not necessary to allege in the indictment that the crime therein charged was Indictment: committed pursuant to a conspiracy. "Where a Conspiracy. defendant is charged with the commission of a crime, the evidence of a conspiracy to commit crime may be shown, although the existence of the conspiracy is not charged in the indictment." [State v. Carroll and Jocoy, 288 Mo. 392, 407, 232 S.W. 699, and cases cited. See also State v. Ruck, 194 Mo. 416, 433, 92 S.W. 706, and cases cited; State v. Kolafa, 291 Mo. 340, 236 S.W. 302.] The indictment is sufficient. No motion to quash was filed and that ground of the motion for new trial seems to have been abandoned, as the point is not presented in appellant's brief or assignment of errors.
II. The court gave instructions on murder in the first and second degrees, on the subjects of alibi, presumption of innocence and reasonable doubt, credibility of witnesses, and one properly limiting the purpose and effect of the evidence of former convictions of defendant. There was also an Instructions. instruction to the effect that defendant might be convicted on the uncorroborated testimony of an accomplice if believed to be true and sufficient to establish defendant's guilt, and warning the jury that such testimony should be received with great caution.
1. Since defendant was not convicted of murder in the first degree it is not necessary to consider the instruction relative to that grade of offense. The instruction on second degree murder is in the form often approved by this court and is not subject to adverse criticism. The only complaint made of it Murder in is, first, that it should not have been given First Degree. because if defendant was guilty of any crime it was murder in the first degree and no instruction should have been given on murder in the second degree, and, second, that it refers the jury to other instructions for the definition of certain terms and does not require the jury to find that the killing was intentional.
Defendant cannot complain that he was convicted of murder in the second degree when the evidence showed him guilty, if at all, of murder in the first degree. The error, if any, was in his favor and is not ground for reversal. [State v. Billings, 140 Mo. 193, 41 S.W. 778.] This instruction referred the Murder in jury to another instruction for the definitions Second Degree. of "wilfully," "premeditatedly," "malice," and "malice aforethought," all of which were appropriately defined in Instruction 1. That was sufficient without repeating the definitions in Instruction 3, the one defining and submitting murder in the second degree. The criticism that it does not require a finding that the killing was intentional in order to constitute murder in the second degree is wholly unwarranted. It does not use the word "intentional," but it does require a finding that the killing was done wilfully, premeditatedly and with malice aforethought. In Instruction 1, the jury is told that "wilfully means intentionally, not accidentally; premeditatedly means thought of beforehand for any length of time however short." The jury was therefore instructed that the killing must have been intentional in order to justify conviction.
2. Appellant assigns as error that the instruction given on the subject of alibi was insufficient and that his requested Instruction A on that subject should have been given. The motion for new trial refers to an instruction numbered A on that subject and Refusal: one numbered B relative to corroboration of the Alibi. testimony of Fowler, requested by appellant and refused. But the bill of exceptions does not show any such instructions, nor that such instructions or any instructions whatever were requested by defendant, nor exceptions to the refusal of any instructions requested by appellant. Nowhere in the record is there any reference to such alleged request and refusal except inferentially in the motion for new trial and even there the alleged refused instructions are not set out. Neither is there any showing that defendant excepted to a failure of the court to instruct on all the law applicable to the case. Allegations in a motion for new trial do not prove themselves. Since there is no showing that such instructions were requested and refused nor as to what they were, if requested, they cannot be considered.
The court gave an instruction relative to the defense of alibi that was a replica of and doubtless was copied from the one given on that subject in State v. Williams, 309 Mo. 155, 183, 274 S.W. 427. In this case as in the Williams case this instruction was given in connection with one on reasonable doubt and presumption of innocence. In the Williams case authorities are cited and the instruction is held sufficient. For similar reasons we hold it sufficient in the instant case.
3. Appellant contends that the court failed to give a proper instruction on reasonable doubt. The instruction given was as follows:
"You are further instructed that the indictment contains the formal statement of the charge, but is not to be Reasonable taken as any evidence of defendant's guilt. Doubt.
"The law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction beyond a reasonable doubt; and the burden of proving his guilt rests with the State.
"If, however, this presumption has been overcome by the evidence and the guilt of the defendant established beyond a reasonable doubt, your duty is to convict.
"If, upon consideration of all the evidence, you have a reasonable doubt of the defendant's guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence."
The complaint made of this instruction in appellant's motion for new trial is that " it lays down a proper statement of the law and gives undue prominence to a qualification which destroys the effect of the declaration." (Italics ours.) Appellant does not inform us either in the motion or in his brief what is the qualification he refers to. If he means the concluding portion, to the effect that a doubt to authorize an acquittal on that ground should be a substantial doubt touching the defendant's guilt and not a mere possibility of his innocence, the instruction on reasonable doubt with that qualification has been so long and so often approved by this court that it is needless to cite cases in support of it. In his brief appellant urges a different objection, viz., that the instruction so blends the subjects of presumption of innocence and reasonable Blending doubt as to minimize the effect of any doubt which Presumption might have existed in the minds of the jury, and and Doubt. cites in support thereof State v. Douglas, 258 Mo. 281, 289, 167 S.W. 552, and State v. Clark, 147 Mo. 20, 38, 47 S.W. 886. It is doubtful whether appellant's motion for new trial presents that ground of objection, but we shall give appellant the benefit of that doubt and consider the point.
In the Douglas case there was in fact, as the court said, no instruction given on reasonable doubt, as required by statute, nor upon presumption of innocence. There was an instruction on the subject of good character which, after telling the jury in the usual manner to consider the evidence relative to good character and the presumption arising if good character was shown, concluded thus: ". . . but if you believe beyond a reasonable doubt from all the evidence in this case including that of good character that defendant is guilty on this charge his good character will not justify or excuse him." The Attorney-General argued that the reference to reasonable doubt in the above-quoted portion of that instruction was a sufficient instruction on that subject. The court held that defendant was entitled to a specific instruction on reasonable doubt, and that the instruction so blended the subjects of good character and reasonable doubt as to minimize the effect of any doubt which might have existed in the minds of the jury. In the Clark case an instruction was given on presumption of innocence, telling the jury that such presumption attended defendant throughout the trial and at the end entitled him to an acquittal "unless the evidence in the case, when taken as a whole, satisfies you of defendant's guilt beyond a reasonable doubt, as defined in these instructions." But there was no other instruction defining reasonable doubt and no specific instruction on that subject. The court held the failure to give an instruction on reasonable doubt was reversible error.
It is obvious that neither of the cases cited sustains appellant's contention. The instruction given in this case was clear and concise and was sufficient both on the subject of reasonable doubt and presumption of innocence. [See State v. Bond, 191 Mo. 555, 90 S.W. 830.] It also informs the jury that the burden of proving defendant's guilt rests upon the State, which answers another alleged error complained of in the motion for new trial.
III. Error is assigned in that the court gave an instruction (No. 6) to the effect that the jury might convict on the uncorroborated testimony of an accomplice if Corroboration: believed to be true and sufficient to establish Discredited defendant's guilt. The instruction further Witnesses. properly cautioned the jury as to how such testimony should be received. The instruction is unobjectionable in form and needs not be set out. Appellant's objection is not to its formal sufficiency, but he insists that Fowler was an alleged accomplice; that another witness, Crader, admitted that he had perjured himself at the coroner's inquest; that another, one Maxwell, was under indictment for driving a car while intoxicated and had been promised immunity for his testimony, and that defendant could not have been convicted without the testimony of these three witnesses; and that under such circumstances he was entitled to an instruction requiring the testimony of Fowler to be corroborated. Fowler was confessedly an accomplice of appellant's and was the State's principal witness. His testimony, if true, makes out a clear case against the appellant. Crader and Maxwell were not accomplices. Both at first attempted to deny knowledge of any facts relative to the murder or who committed it. Both gave testimony at the trial corroborating important parts of Fowler's testimony. Crader, it seems, had been threatened with prosecution for perjury for his testimony, either at the inquest or when first called before the grand jury. This threatened prosecution was abandoned after he had, as he claims, told the truth before the grand jury when his mother advised him to tell the truth if he had not done so. There had been a charge of driving a car while intoxicated pending against Maxwell which was dismissed when he testified at the first trial of this case. (There had been a previous trial in which the jury failed to agree.) But these matters only go to affect the credibility of the testimony of these witnesses. It is the well established law in this State that one charged with crime may be convicted upon the uncorroborated testimony of an accomplice if it is sufficiently convincing to the jury to establish his guilt. [State v. Bobbitt, 215 Mo. 10, 114 S.W. 511, and cases cited; State. v. Shelton, 223 Mo. 118, 122 S.W. 732, and cases cited; State v. Cummins, 279 Mo. 192, 209, 213 S.W. 969, and cases cited; State v. Craft, 253 S.W. 224, 228.] Since, therefore, the testimony of Fowler, if believed by the jury, was sufficient to authorize conviction, although not corroborated by any other witness, by what logic or reasoning must the jury be told that it must be corroborated because the State has offered corroborating evidence by witnesses who may have been discredited or impeached? If they had been the only corroborating witnesses and were discredited to the extent that their testimony amounted to nothing, the most that can be said of that situation is that there is no corroboration of Fowler's testimony which was legally sufficient if believed by a jury. If not so thoroughly discredited then the corroborating testimony adds something to that of the accomplice. There is no merit in this contention.
IV. In connection with Instruction 6, it is necessary to consider appellant's assignment of error that a conspiracy cannot be established by the testimony of one of the conspirators. Fowler, as has been stated, was a self-confessed accomplice of and co-conspirator with appellant. He was not uncorroborated. There were numerous circumstances proven by other witnesses that tended to corroborate his testimony. But proof of the existence of a conspiracy was necessary in order to render competent against appellant certain statements which other witnesses testified that Lasley and Fowler had made. The credibility of that testimony was for the jury to determine. The jury was instructed that appellant might be convicted upon the uncorroborated testimony of an accomplice. Under that instruction if the jury disbelieved the corroborating testimony, but did believe Fowler's testimony without corroboration, it could still convict; and it might find upon Fowler's uncorroborated testimony that there was a conspiracy, thus making admissible the statements referred to. If, therefore, Fowler's testimony was legally insufficient to establish the conspiracy, Instruction 6 was error.
Appellant cites two cases in support of this assignment: State v. Loeb, 190 S.W. 299, 304, by this court, and State v. Gilmore, 151 Iowa 618, 132 N.W. 53. The Gilmore case merely holds that the declaration testified to by a witness as having been made by an alleged co-conspirator is not sufficient to establish the alleged conspiracy as against the defendant on trial who did not make the statement and was not present when it was made, which is a different matter. As to the person on trial such ex parte statements of an alleged co-conspirator, the conspiracy itself not being shown by evidence at the trial, would be hearsay. But not so as to testimony given on the trial by a co-conspirator.
In State v. Loeb, supra, we think the court intended to hold only what was held in the Gilmore case. Two defendants, Loeb and Doss, were on trial charged with larceny. One Beckett testified to certain statements which he claimed had been made to him by Loeb, not in the presence of Doss, which tended to prove Loeb's connection with the crime and also to implicate Doss. The alleged statement of Loeb, as testified to by Beckett, constituted the only evidence connecting either defendant with the crime. Absent that alleged statement there was no evidence tending to show a conspiracy between Loeb and Doss. The court held that Loeb's statement tended to show active participation in the crime on his part if one had been committed, and was admissible against him, but as to Doss said:
"It remains to be determined, however, whether Loeb's statement was admissible against his co-defendant, Doss. To render it so it is necessary that there be evidence tending to show a conspiracy to commit the crime. . . . No testimony was offered either before or after the admission of the statement to show the existence of a conspiracy other than that which may be deduced from the statement itself. A conspiracy cannot be established by the testimony of a conspirator alone, but must be shown by other facts or circumstances independent of his statements" (citing State v. Gilmore, supra, and People v. Parker, 67 Mich. 222, 34 N.W. 720, 11 Am. St. l.c. 580). (Italics ours.)
The court held that the testimony of Beckett as to Loeb's statement, while admissible against Loeb, was not admissible against Doss.
It will be observed that what the court was considering and deciding was not the competency or sufficiency of the testimony of a co-conspirator to establish the conspiracy, for there was no such testimony, but the admissibility of a statement or declaration of an alleged co-conspirator as against one not present when the statement was made and without any testimony tending to show that a conspiracy existed.
The case of People v. Parker, supra, like the Gilmore case, holds only that statements made by an alleged co-conspirator not in the presence of defendant "cannot be used to show the conspiracy without other independent evidence." Neither case cited holds that the testimony of a co-conspirator is insufficient to prove the conspiracy.
It is well established in this State that one may be convicted of crime upon the uncorroborated testimony of an accomplice. It would be anomalous to hold thus, and at the same time to hold that the conspiracy which is an incident to or means through which the crime charged was effected, cannot be so proved. We are satisfied that the learned writer of the opinion in the Loeb case used the word "testimony" inadvertently when he meant to say "statement" in that part of the opinion above quoted. Otherwise that remark would be obiter because the question of the sufficiency of the testimony of a co-conspirator to establish the conspiracy was not involved in the case. The Loeb case should not be followed on that point.
V. Appellant makes numerous assignments of error in the admission and rejection of evidence.
1. The State proved over defendant's objection that Lasley and Fowler belonged to the Brotherhood of Railway Trainmen and that appellant had asked a witness for an application Union blank some two years previously which was not Membership. furnished because the request was not accompanied by a recommendation as required by the rules of the Brotherhood. Appellant later testified on his own direct examination that he did not and never had belonged to any union. His objection to the evidence of Fowler's and Lasley's membership is that it was immaterial. There was no error in admitting the evidence.
2. Error is assigned in the admission of the evidence as to seniority rights of employees of the Frisco and the J.L.C. E. railroads after the former began operating the latter, Seniority and to the fact that the Frisco was operating the Rights. J.L.C. E. It is questionable whether the objection to this testimony was sufficient, but we think there was no error in the admission of the evidence. It gave the jury information as to the surroundings and situation relative to each other of the parties involved in the tragedy and tended to explain the feeling that seemed to exist on the part of appellant and his associates toward the deceased.
3. Appellant contends there was error in the admission of certain conversations between witness Clyde Maxwell and Lasley and Fowler and between John Crader and Lasley Conversations and Fowler, not in the presence of appellant. With Maxwell testified that about seven P.M. on Co-conspirators. October 17th, shortly before the homicide, he saw and talked with Lasley near Horstman's rooming house, in which deceased had a room. At the time appellant was sitting in Lasley's car, which was parked in the street in front of this rooming house. Lasley asked Maxwell to go up and call Hargett and tell him that there was a meeting of some kind at the city hall and "they would pick him up as they went that way." Maxwell declined. Lasley then asked him if he had a gun, to which he replied that he had not, except a shotgun. Lasley then inquired if Maxwell had seen John Hobbs, the city marshal, and Maxwell told him where he had seen Hobbs some thirty minutes earlier and Lasley went down that way. A few minutes later Fowler came along and asked Maxwell where Lasley had gone and Maxwell told him Lasley had gone down towards the corner. Fowler then invited Maxwell to come out to the car and have a drink. They went to Lasley's car, but were informed by appellant who was in the car that the whiskey had all been consumed, whereupon Maxwell and Fowler stepped "around back of the car" (appellant remaining in the car) and there Maxwell asked Fowler what they were going to do with Hargett when they got him. Fowler replied that it was none of Maxwell's damn business, all they wanted him to do was to go and call him.
Crader testified that between 6:45 and seven o'clock that evening Fowler, Lasley and appellant came to the Frisco office building where he, Crader, was employed as call boy. Fowler came into the hall, motioned Crader to come out of the office into the hall, and there asked him where Hargett was rooming. Crader told him, "In room four at Horstman's," and asked Fowler why he wanted to know. Fowler replied that Hargett was king of the scalies from Jonesboro. Fowler then went out to the car in front of the office in which appellant and Lasley were sitting and the three drove away. Fowler testified also to the conversations he had with Maxwell and Crader.
The testimony relative to the conversations above referred to was properly admitted because what was said by Lasley and Fowler was during the existence of the conspiracy and in furtherance of the purpose thereof. Before these conversations occurred Lasley, Fowler and appellant, according to the State's evidence, had agreed to take Hargett out that night and give him a whipping. At the time of the conversations they were obviously seeking him for the purpose of carrying out their prearranged purpose and these statements of Lasley and Fowler had direct reference to that purpose. The statements were therefore admissible against appellant, though not made in his presence. [State v. Shields, 296 Mo. 389, 402, 246 S.W. 932; State v. Samis, 296 Mo. 471, 486, 246 S.W. 956, and cases cited.] It is not necessary to consider in this connection whether or not the conspiracy contemplated the killing of Hargett. The State's case rests upon the claim, and its evidence, if true, shows, that appellant himself committed the murder. But, according to the State's evidence, the conspiracy did involve the unlawful purpose of forcibly taking Hargett from his room and subjecting him to the physical custody and control of the conspirators and thus became a means through which the crime charged was committed. The statements referred to had direct reference to the above mentioned purpose of the conspiracy. For the same reasons the testimony of Fowler as to the conversation between himself, Lasley and Hargett in Hargett's room when Lasley and Fowler went there to get Hargett was admissible.
4. Appellant assigns error in the admission of certain other evidence as follows: Witness Crader was asked if he had made a statement to one Mitchell. Without objection he No Objection. answered that he had. Appellant's objection to the next question as to what he had told Mitchell was sustained. After Fowler on cross-examination admitted that he had testified falsely at the coroner's inquest, denying any knowledge of the killing and testifying as to many things relative thereto contrary to his testimony at the trial, he was permitted to state on re-direct examination without objection, in answer to questions by the State's counsel, that before the inquest he had told his wife, his brother, J.W. Fowler, and his mother-in-law "about what he saw and knew of the killing." On re-cross examination appellant's counsel asked him if he had told them the truth about it, to which he replied that he had. Obviously he cannot now complain of error in the admission of this testimony, not having objected thereto.
In his brief appellant further assigns as error the admission of the testimony of J.W. Fowler who was permitted to relate what George Fowler had told him a day or so after the Rehabilitation. homicide and before the inquest, which corresponded with George Fowler's testimony at the trial. The objection as to J.W. Fowler's testimony is not saved in the motion for new trial and therefore may not be successfully urged here. But it would be unavailing had it been properly saved. George Fowler had been impeached on his cross-examination by showing that he had testified at the inquest contrary to his testimony on the trial. In addition, on his cross-examination, facts were elicited from him as to leniency and favors shown him by the officers in whose custody he was after his arrest, from which an inference was sought to be drawn that he had been promised leniency in the case against him, or at least that he expected such leniency, as a reward for testifying against appellant. In these circumstances the State had the right, in order to rehabilitate his testimony, to prove that before he testified at the inquest and before the alleged or intimated improper influences could have operated upon him, he had made statements consistent with his testimony at the trial. [State v. Sharp, 183 Mo. 715, 82 S.W. 134; State v. Maggard, 250 Mo. 335, 157 S.W. 354, and cases cited; State v. Tippett, 296 S.W. 132.]
5. Appellant offered to prove by George Fowler on cross-examination that after his (Fowler's) arrest and while in custody, bail having been denied, Fowler was accorded privileges and shown favors and considerations not Cross-Examination: usually accorded prisoners; this for the Rejection: purpose of proving or raising an inference Correction. that Fowler had been promised, or that he expected, leniency in his own case in return for testifying as he did. When appellant first sought to cross-examine Fowler along this line the court sustained the State's objection thereto. But the next morning the court informed counsel that he had reconsidered and would permit appellant to cross-examine fully on that matter and Fowler was thereupon recalled and appellant was permitted to and did cross-examine him as fully as he desired to upon that subject. Any error in the rejection of the evidence when first offered was cured by its subsequent admission. The further contention that the court's remark in rejecting the evidence when first offered was prejudicial is without merit.
Neither do we think there was error in the court's refusal to permit defendant to testify that in 1923, when he was first employed by the Frisco at Springfield, Missouri, there Remote was a shopmen's strike in progress at that place and Strike. that non-union men had taken the place of union men in the shops and that his duties then were to protect the non-union men against the strikers. It was remote in time and had no connection with the situation existing at the time of the homicide nor with deceased. The offer of proof did not include an offer to prove that he had in fact discharged such or any duties in connection with his employment at Springfield. We do not see how the fact offered to be proved could have thrown any light on the subject of motive or any other question involved in the case. As to its tending to rebut the inference that he belonged to the Brotherhood of Railway Trainmen, as suggested by appellant, the State not only made no such claim, but in effect proved that he did not belong.
Appellant complains that he was not permitted to testify that after the murder and before his arrest he was honestly endeavoring to find out who committed the murder. He Honest was permitted to and did testify as to his acts and Endeavor. conduct in that connection. His statement that he was honestly endeavoring to find out who committed the murder, besides being in the nature of a conclusion, could have added nothing to the effect of his evidence.
6. It is contended that the court erred in permitting defendant's witness Stokely to be "cross-examined from testimony taken at the coroner's inquest." The reason Impeachment: assigned in the motion for new trial is that Coroner's Inquest: it had not been identified as part of such Confronted by testimony. At the trial Stokely was called as Defendant. a witness for defendant. His testimony in numerous particulars contradicted that given by him at the inquest. His testimony at the inquest had been reduced to writing and signed by him and at the trial he admitted his signature. On cross-examination his attention was called to certain questions put to him and his answers at the inquest which contradicted his testimony on the trial. Some he admitted, others he either denied or said he did not remember. No objection was made to any of this examination. In rebuttal the State was permitted to read in evidence the questions and answers about which the witness had been specifically asked on his cross-examination. This was offered and admitted for the purpose of impeachment. Then for the first time appellant objected on the ground that "where testimony is taken against a defendant he has the right to face the witness and the defendant in this case did not face the witness on this examination and the testimony cannot be used for that reason." Appellant now urges this ground of objection in his brief, citing one Missouri case, State v. Mullins, 101 Mo. 514, 14 S.W. 625, and several from other states, none of which sustain his contention. There can be no doubt that the testimony given by Stokely at the inquest which contradicted that given by him at the trial was properly admitted to impeach his testimony at the trial. [State v. Eastham, 240 Mo. 241, 144 S.W. 492.] The reading of some questions and answers which the witness had admitted on his cross-examination was not objected to on that ground.
7. It is urged that error was committed in admitting in evidence the sheet taken from Hargett's bed, and State v. Creed, 252 S.W. 678, and State v. Pearson, 270 S.W. 347, are cited in support of the contention. In those cases the Exhibition of bloody clothing worn by each of the deceased at Bed Sheet. the time he was killed was introduced and exhibited to the jury. In each case under the facts shown the clothing could serve no evidentiary purpose and could only tend to inflame the minds of the jurors, and its admission was held to be error. But if such evidence tends to throw light on a material matter at issue it is admissible. The clothing of deceased in the instant case was not admitted and was not even produced in the court room. The sheet was admitted. It is not correct to characterize it as a bloody sheet as appellant does in his brief. There were only two or three small blood spots on it, each about the size of a dime, and these could hardly have aroused passion in the minds of the jurors. These spots and the location thereof on the sheet tended to throw light on what occurred in Hargett's room and to corroborate Fowler's testimony. These were not admitted facts. As said in State v. Porter (Mo.), 207 S.W. 774, 777:
"Demonstrative evidence of this character is admissible if it tends to connect the accused with the crime . . . or throw any relevant light upon a material matter at issue. [Citing cases.] Necessarily, the admission of this character of testimony must, within the limits stated, be left largely to the discretion of the trial court (citing cases) and only when it appears that this discretion has been abused will we interfere therewith."
See also State v. Hopkins, 278 Mo. 388, 394, 213 S.W. 126.
Error is assigned in the admission of proof by Crader and Maxwell of statements made by Lasley and Fowler before, as appellant contends, there was any proof of a conspiracy. While as a general rule there should be proof of a Statements of conspiracy before the acts or declarations of a Conspirators. conspirator can be admitted against his co-conspirator, the rule is not inflexible. The order of proof rests largely in the discretion of the trial court. [State v. Walker, 98 Mo. 95, 9 S.W. 646; State v. Flanders, 118 Mo. 227, 23 S.W. 1086; State v. Reich (Mo.), 239 S.W. 835; State v. Parr, 296 Mo. 406, 246 S.W. 903; State v. Gilmore, supra.] Evidence of circumstances from which an inference might be drawn that the three were acting in concert had been introduced. Fowler had not yet testified but later was called and his testimony furnished direct evidence of the conspiracy. There is nothing in the record to indicate that the court abused its discretion, or that the order in which the evidence was introduced could have prejudiced the defendant.
VI. Appellant challenges the verdict on the ground that it was arrived at by the jury by chance and self-imposed coercion, in that the jurors agreed that each would set down the length of term of imprisonment he thought should be imposed, the Quotient aggregate of the figures to be divided by twelve and Verdict. the quotient to be the term of imprisonment imposed. He filed with his motion for new trial affidavits of five of the jurors to that effect. He also filed the affidavit of a deputy sheriff stating in substance that a few minutes after the return of the verdict he, the deputy, found in the jury room a slip of paper, filed as an exhibit with the affidavit, on which appears a column of figures ranging from 10 to 99, giving a total of 526 and an apparent division by twelve with a resultant quotient of forty-three.
The jurors' affidavits were by the court stricken from the record, and properly so, and cannot be considered. A juror cannot be heard to impeach his own verdict. [State v. Branstetter, 65 Mo. 149, and cases cited; State v. Linn, 223 Mo. 98, 110, 122 S.W. 679, in which the same contention was made as in this case.] The figures on the slip found by the deputy sheriff were not shown to be in the handwriting of any member of the jury. With the jurors' affidavits stricken out there was no showing that the jurors had agreed in advance to adopt as their verdict the quotient resulting from dividing by twelve the aggregate of the numbers set down on the exhibit. If they did so agree and did make the calculation they must have abandoned the agreement after the calculation was made and then agreed upon forty-three years, because 526 divided by 12 does not produce a quotient of forty-three. It produces 43 10/12, that is, forty-three years and ten months, expressed in terms of time. It has been held that if the jurors have not bound themselves in advance to accept the unascertained quotient as their verdict, but after the quotient is ascertained they adopt it as their verdict, the fact that they fell upon that method of reaching an agreement will not vitiate their verdict. [Thompson v. City of Lamar (Mo.), 322 Mo. 514, 17 S.W.2d 960, 977, and cases cited.] The facts developed in State v. Linn, supra, were substantially identical with those shown here and were held insufficient to overthrow the solemn verdict of the jury. We so hold in this case.
We have considered the many assignments of error made by appellant and have carefully examined the record and find no reversible errors therein. Appellant appears to have had a fair trial and the verdict is supported by substantial evidence. The judgment is affirmed. Davis and Henwood, CC., concur.
The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. Blair, P.J., and White, J., concur; Walker, J., absent.