There are a number of cases like the Hayes case which hold that a conspiracy to escape from jail or to rescue prisoners from jail, in which it is agreed to overcome any resistance by force, including deadly force, can result in a conviction for first degree murder if any person is killed during the progress of the conspiracy. See People v. Creeks, 170 Cal. 368, 149 P. 821; People v. Wood, 145 Cal. 659, 79 P. 367; State v. Brooks, 228 N.C. 68, 44 S.E.2d 482; Shockley v. United States, supra; Comonwealth v. Walters, 206 Ky. 162, 266 S.W. 1066; State v. Stidham, Mo. 1957, 305 S.W.2d 7; State v. Holloway, 355 Mo. 217, 195 S.W.2d 662. [4] In most of such cases the participants have been found guilty of the same degree of murder, but this is not required by law.
See, § 556.170, V.A.M.S.; State of Missouri v. Holloway, 355 Mo. 217, 195 S.W.2d 662 (1946); Stidham v. Swenson, 328 F. Supp. 1291, 1293 (W.D.Mo. 1970); see generally, United States v. Irons, 475 F.2d 40 (8th Cir. 1973); United States v. Atkins, 473 F.2d 308 (8th Cir. 1973); United States v. Thomas, 469 F.2d 145 (8th Cir. 1972); United States v. Jarboe, 374 F. Supp. 310 (W.D.Mo. 1974) and cases cited therein. The record presented does not establish that Instruction No. 6 was improper under federal constitutional standards or that it otherwise rendered the entire trial fundamentally unfair under these standards.
Furthermore, there is direct authority for instructing and proving a conspiracy to commit murder under an indictment charging first-degree murder. State v. Holloway, 355 Mo. 217, 195 S.W.2d 662 (cited by the Missouri Supreme Court) states: (P)roof that appellant and others conspired together to commit an unlawful act and that the killing occurred in furtherance of the conspiracy may be shown under an indictment or information charging first degree murder only.
The doctrine of felony murder in the second degree has not been used extensively in Missouri; generally, however, it is associated with violent crimes. See, for example, State v. Hayes, 262 S.W. 1034 (Mo. 1924) (conspiracy to "beat up" victim resulting in victim's death); State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420 (1933) (defendants beat a fellow prisoner to death while escaping from jail); State v. Holloway, 355 Mo. 217, 195 S.W.2d 662 (1946) (sheriff killed during a jailbreak); State v. Jasper, 486 S.W.2d 268 (Mo.banc 1972) (victim killed while defendant was resisting arrest).
170), upon this record, as the court held on the previous appeal, State v. Stidham, 305 S.W.2d l. c. 15, "there was ample evidence for a finding of the conspiracy submitted and the actual participation in and consummation of the said conspiracy by the persons named in the instruction." A case directly in point in every respect is State v. Holloway, 355 Mo. 217, 195 S.W.2d 662, an instance of a murder in a jailbreak. Excerpting, the court said, "Goldie and Buster were co-conspirators with appellant. Their testimony was competent in establishing the fact of the common design or conspiracy. * * * Conversations between Goldie and Buster were competent evidence against appellant although made outside of appellant's presence.
Appellant stood charged with murder in the first degree. Having conspired with Shindler she became an accessory before the fact (40 C.J.S. Homicide § 9, p. 836, note 78; 22 C.J.S. Criminal Law § 90, p. 268; State v. Stidham, Mo., 305 S.W.2d 7, 15; State v. Mason, 322 Mo. 194, 14 S.W.2d 611, 616 [13]) to the murder of her husband and under § 556.170, RSMo 1959, V.A.M.S., could "be charged, tried, convicted and punished" as a principal in the first degree (State v. Lunsford, Mo., 331 S.W.2d 538, 540 [3,4]; State v. Tripp, Mo., 303 S.W.2d 627, 631 [2]) without her further participation in or presence at the offense (State v. Holloway, 355 Mo. 217, 195 S.W.2d 662, 664 [1, 3]; State v. Mason, supra; State v. Menz, 341 Mo. 74, 106 S.W.2d 440, 448 [9]; State v. Hill, 352 Mo. 895, 179 S.W.2d 712, 714). Appellant has not established error.
The affidavits and communications he has lodged with the court since the filing of the transcript are not a part of any authenticated record, they are not properly here and have not been considered. State v. Holloway, 355 Mo. 217, 195 S.W.2d 662; State v. Barker, 294 Mo. 303, 242 S.W. 405. The appellant is not represented by counsel upon this appeal, nevertheless, the court has considered "the record before it" (Supreme Court Rules 28.02, 28.08, 42 V.A.M.S.), there was allocution and the sentence and judgment are responsive (Supreme Court Rules 27.08, 27.09) and there were no manifest errors improperly infringing the appellant's right to a fair trial and accordingly the judgment is affirmed. BOHLING and STOCKARD, CC., concur.
As to the first and third, it is well settled that proof that the killing occurred during the perpetration of a robbery may be made under an information charging murder in the usual form. State v. Nasello, 325 Mo. 442, 30 S.W.2d 132, 136 and cases cited; State v. Messino, 325 Mo. 743, 30 S.W.2d 750, 759; State v. Moore, 326 Mo. 1199, 33 S.W.2d 905; see also State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033, 1037; State v. Holloway, 355 Mo. 217, 195 S.W.2d 662, 665. Substantially the same instruction was given in State v. Schnelt, 341 Mo. 241, 108 S.W.2d 377, 383 and held not to conflict with an instruction requiring a finding that the killing was done "deliberately", but instead properly supplemented it. See also State v. Reese, 364 Mo. 1221, 274 S.W.2d 304.
It is always proper for the party seeking to impeach a witness by showing that he has been convicted of a felony to show the name or nature of the felony. People v. Chin Hane, 108 Cal. 597, 41 P. 697; People v. Eldridge, 147 Cal. 782, 82 P. 442; People v. Jacobs, 73 Cal.App. 334, 238 P. 770; People v. Muchupoff, 79 Cal.App. 306, 249 P. 240; Hadley v. State, 25 Ariz. 23, 212 P. 458; People v. Fouts, 61 Cal.App. 242, 214 P. 657; State v. Gilbert, 138 Or. 291, 4 P.2d 923; People v. David, 12 Cal.2d 639, 86 P.2d 811; People v. Jefferson, 84 Cal.App.2d 709, 191 P.2d 487; Brooks v. State, 192 Miss. 121, 4 So.2d 886; State v. McBride, Mo. Sup., 231 S.W. 592; State v. Holloway, 355 Mo. 217, 195 S.W.2d 662; McDaniel v. State, 8 Okla. Cr. 209, 127 P. 358; Stacey v. State, 79 Okla. Cr. 417, 155 P.2d 736; State v. Conwell, 36 N.M. 253, 13 P.2d 554; Spiegel v. Hays, 118 N.Y. 660, 22 N.E. 1105; Thompson v. Bankers' Mut. Casualty Ins. Co., 128 Minn. 474, 151 N.W. 180; Johns v. State, 88 Neb. 145, 129 N.W. 247. He may not however prove the details or circumstances of the crime.
(1) The court did not err in admitting into evidence actions and statements of the co-conspirator, Carl Robertson, as they were acts and declarations in pursuance of the conspiracy later proved. State v. Holloway, 355 Mo. 217, 195 S.W.2d 662; State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22; State v. Fields, 234 Mo. 615, 138 S.W. 518. (2) The court did not err in permitting the introduction of admissions of the defendant before the corpus delicti was established. State v. Arndt, 143 S.W.2d 286; State v. Thompson, 333 Mo. 1069, 64 S.W.2d 277. (3) The court did not err in refusing to sustain the motions of the defendant in nature of demurrers at the close of the state's case, and again at the close of the entire case.