State v. Brown

112 S.W.2d 568, 342 Mo. 53, 1938 Mo. LEXIS 417

• Court: Supreme Court of Missouri
• Decided: January 26, 1938
• Status: Published

Opinions

John Brown, the appellant, was convicted of murder in the first degree. His punishment was fixed at death.

The facts briefly stated are these: Appellant, a negro about thirty-two years of age, entered the Irish Tavern, at 919 E. Twenty-first Street, Kansas City, Missouri, on the evening of April 7, 1936, and at the point of a gun attempted to perpetrate a robbery. There were only five people in the place at the time. Among those present was William Cavanaugh, a motorcycle patrolman, who was off duty at the time and was dressed in civilian clothes. Cavanaugh drew his gun and began shooting at appellant. Appellant, when he noticed the patrolman refused to put up his hands, also began shooting. Both emptied their guns. The patrolman was taken to a hospital and died the next day as the result of the gunshot wounds inflicted by appellant. A few days later appellant was arrested at Council Groves, Kansas, and returned to Kansas City, where he was charged with the crime of having murdered Cavanaugh. At the trial, all four of the persons who were in the Irish Tavern at the time of the shooting, positively identified appellant as the man who shot Cavanaugh. In addition, appellant made a confession in which he admitted the principal facts as testified to by the four witnesses. Appellant also received gunshot wounds which were inflicted by Cavanaugh and E.W. Bothwell, an employee of the gas company, who carried a special officers commission. Bothwell was one of the parties in the tavern at the time, and identified appellant. He testified that he shot at the negro as the negro was leaving the tavern. There was other evidence corroborating the testimony of the witnesses for the State. Appellant did not introduce any evidence. He has not favored us with a brief.

[1] Appellant's motion for new trial reads as follows:

"Thereafter, on the 29th day of May, 1936, defendant filed his motion for new trial, which was by the court overruled on the 24th day of July, 1936, which said motion is in words and figures, as follows.

"`Comes now the defendant in the above entitled cause of action and moves the court for a New Trial in the above styled case for the following reasons, to-wit:

"`1. The verdict in the above case is contrary to the law and evidence.

"`2. The court erred in admitting illegal evidence, i.e., defendant's purported statement of the commission of the crime.

"`3. The court erred when it allowed the prosecution to read a portion of the defendant's purported statement of the confession of the commission of the crime, to the jury.'" It is self-evident that the motion for new trial did not preserve anything for our review. However, since the extreme penalty was assessed we desire to make a number of gratuitous observations. The statement of facts, as above related, discloses, beyond doubt, that appellant was guilty of murder in the first degree. No mitigating circumstances were shown. The facts justified the assessment of the death penalty. The confession of appellant was admitted in evidence after the trial court had had a hearing upon the question of whether it was voluntarily made. During this hearing, in the absence of the jury, appellant testified. While on the stand he admitted that the main facts related in the signed confession were true. [2] When the confession was offered in evidence appellant's counsel made the following objection:

"MR. JOHNSON: The defendant objects to the introduction of a portion of defendant's purported confession unless it is stated in its entirety and even then we object to it, but we certainly object to it being read in part after having been admitted wholly."

The court's ruling was as follows:

"THE COURT: The objection will be overruled and the defendant accorded the privilege of reading to the jury any deleted portions."

The portion of the statement omitted by the State's attorney concerned two previous convictions of appellant. It is apparent that the ruling of the court was not prejudicial to the rights of appellant. As to the admissibility of the confession, suffice to say that under appellant's own evidence the alleged confession was admissible.

We have examined the record proper and find that the information that was filed was in proper form. There was an arraignment and a plea of not guilty. A jury was duly impaneled and sworn to try the case. The verdict was free from defect. Finding no error the judgment is affirmed. The date of the execution is ordered on and for Friday, the 28th day of January, 1938. Cooley and Bohling, CC., concur.