Opinion
No. 43363.
July 13, 1953.
APPEAL FROM THE CIRCUIT COURT, CHRISTIAN COUNTY.
A. H. Blunk, Forsyth, Rogers Rogers, G. W. Rogers and Clyde Rogers, Gainesville, Lincoln, Lincoln, Haseltine Forehand, Harold T. Lincoln and Horace S. Haseltine, Springfield, for appellant.
John M. Dalton, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.
Arthur T. Clark was charged by information with murder in the first degree in having killed Charlie Cobb by beating him upon the head and body with a dangerous and deadly weapon, in Taney County, on February 20, 1951. The case went on change of venue to Christian County where it was tried, appellant was convicted by a jury, and sentenced to life imprisonment in accordance with the verdict.
Abandoning all other assignments of his motion for a new trial, appellant here complains of only the following: (1) Denial of his pre-trial motion to suppress evidence, and the subsequent admission of that evidence; (2) Admitting in evidence acts and declarations of alleged coconspirators (and the giving of two instructions based on such testimony) in the absence of proof of his connection with any conspiracy; (3) Admitting testimony of the sheriff with respect to the result of his investigation of Orville Meredith as a suspect in the case; and (4) the failure of the court to discharge the panel on motion "because the sheriff had systematically excluded women therefrom."
The fact that Cobb was murdered was admitted, the point of contest being appellant's connection with the crime. The principals lived near a small settlement known as Cedar Creek, in Taney County, Cobb on a farm known as the John May place. Deceased and his wife, Ruby, and their four children, together with Ruby's 17-year-old brother, composed the Cobb household. Appellant and his family (his wife Orma, and their four children) lived on their own farm about 2 miles southeast of the John May place. The murder occurred in the late afternoon of February 20, 1951, at the barn on the May place, to which deceased had gone for the purpose of doing his evening milking. His body was found by his children in the hallway of the barn. His skull had been fractured in several places — "practically pulverized on the left side;" both jaws and his nose were broken; there were 9 stab wounds in the forehead and over his left eye together with other bruises and marks. The contents of his pockets had not been disturbed, his purse containing $55 being found intact. A physician expressed the opinion that the weapon used was a "pretty heavy club with nails in it."
The sufficiency of the evidence to support the verdict is not challenged, and so the facts need not be outlined further than as they may have application to the points preserved for review, and to give an understanding of the general situation. It appears from the state's evidence that in December preceding the homicide in February, John May (an elderly person known as "Uncle Boney") had conveyed the farm to Orma Clark, wife of appellant, but 21 days later he was adjudged incompetent, and a guardian was appointed for him. (The conveyance was set aside in an action brought by the guardian subsequent to the death of Charlie Cobb.) It appears that ill feeling existed on the part of appellant and his wife toward deceased because of the latter's testimony at Uncle Boney's sanity hearing at which he had apparently agreed (or, at least, was supposed) to testify "for him [May] not being crazy," as put by one of the witnesses, and this he failed to do.
The wives of appellant and deceased (Orma Clark and Ruby Cobb), together with one Clarence Wood (who lived at the Clark home), were also charged with first degree murder in the killing. Indeed, Ruby (who had entered a plea of guilty, but not yet sentenced) took the stand and testified for the state, as did Wood. From Ruby's testimony (and that of others to which reference will be made later) the jury would have been warranted in finding that she (Ruby), being quite anxious to get rid of her husband, and, in the wake of the feeling engendered by his testimony at the sanity hearing, and seizing upon the opportunity created thereby, entered into a conspiracy with Orma Clark and Orma's husband, the appellant Arthur (and perhaps Wood) by which the dispatch of her husband was brought about at the hands of appellant under the circumstances above mentioned. Other facts will be stated in connection with the points to which they relate.
The motion to suppress (based on constitutional grounds) was directed against a paper-writing (later introduced at the trial as Exhibit "G") and certain articles of clothing which were seized by the sheriff at appellant's home under circumstances about to be noticed. The court sustained the motion as to the articles of clothing, but overruled it as to Exhibit "G," which reads as follows:
"Feb. 7-1951
"To Orma Clark Kissee Mills, Mo.
"I will give you my two good cows if I don't get you your money in 4 days after it is done.
"Your Friend "Ruby Cobb
"Keep this"
The state admits that this communication "referred to doing away with the deceased." The facts attending its seizure were admittedly these: After Orma Clark was arrested and placed in jail at Springfield, she told the Greene County sheriff where the note was located, and he in turn relayed this information to the Taney County sheriff. The latter, together with a deputy and highway patrolman, proceeded to appellant's home. They had a warrant for his arrest, but no search warrant. Appellant was not at home at that time, but his father and his four children were there. The sheriff asked the father if he had any objections to his "looking around," to which he replied, "No, to go ahead." (The father lived elsewhere, and was only temporarily at the home of his son.) The sheriff then went to a certain bedroom window and found the note above an unfinished casing. A bunch of rags had been stuffed on top of it. The sheriff seized the note and retained it, and, over appellant's objections, it was introduced at the trial. The state, conceding the illegality of the seizure under Article I, § 15, Const. of Mo. 1945, V.A.M.S., urges, first, that the question was not timely raised, and that such lack precludes its consideration in this court; and, second, that appellant was not prejudiced because such evidence was merely cumulative.
The first contention is based on the fact that the motion to suppress was not filed until after an earlier trial of the case (which ended September 6, 1952, upon discharge of a juror because of illness, and the consequent declaration of a mistrial for that reason) at which "evidence was offered and received by the court without objection on the part of defendant to facts identical to those contained in the note written by Ruby Cobb to Orma Clark." It abundantly appears from the testimony at the hearing on the motion to suppress that as soon as it was developed on the former trial that the state had the note, appellant's counsel then asked leave to file a motion to suppress, but on account of the intervening illness of the juror, the mistrial was declared. In this situation, we hold the filing of the motion before the case was again called for trial was not untimely.
We cannot accede to the proposition that the errors in the overruling of the motion to suppress and the subsequent introduction of the note in evidence were rendered harmless because such evidence was merely cumulative. True, Ruby did testify (over appellant's objection) that she handed Orma Clark the seized note or slip of paper to evidence the "mortgaged cows" deferred-payment-plan demanded by Orma under their agreement to pay the latter $600 for "doing away with Charlie." The jury was at liberty to believe or disbelieve this testimony as it might deem it to be true or false. But the corroboration of it by the introduction of the writing itself and the incriminating nature of the cache was so overwhelming as to convince any average, fair-minded juror of the trustworthiness of Ruby's testimony in that behalf, and thus tip the scales against appellant upon an important aspect of the state's case. None of the cases relied on by the state, State v. Jackson, Mo.Sup., 253 S.W. 734; State v. Peters, Mo.Sup., 242 S.W. 894, 897; State v. Bruton, 253 Mo. 361, 161 S.W. 751, involved evidence obtained in violation of a defendant's constitutional rights, and we are unwilling to extend to the latter situation the rule ordinarily obtaining with respect to merely cumulative evidence.
On the theory that there was evidence of the conspiracy mentioned, Ruby Cobb was permitted to testify as to conversations between herself and Orma Clark in pursuance of the conspiracy, which were held out of appellant's presence. Appellant contends there was "no legal evidence that he was a party to said alleged conspiracy," and hence his objections to such conversations should have been sustained. The offending conversations or statements are not pointed out except in the generalization that "the single strand of cobweb by which the state sought to justify connecting this defendant to the alleged conspiracy is Ruby Cobb's hearsay testimony that Orma Clark told her that defendant was a party to the conspiracy."
This contention overlooks the significance of the following facts: Ruby testified that Orma suggested that she (Ruby) write a note to Carl Wood (her paramour) asking him to help kill her husband. She wrote such a note, and gave it to Orma to mail. The sheriff testified that appellant told him that "he had opened the letter, seen what it was * * * and had a photostat made of it, and brought it back [from Springfield] and sealed the letter and mailed it."
Clarence Wood testified that following Cobb's testimony at the May insanity hearing, appellant said to him that Cobb "ought to be knocked over the bluff, knocked in the head and thrown over the bluff," to which the witness replied that the buzzards would get him [appellant] before he got out of sight. He further testified that thereafter he was present at a conversation held in the Clark home between himself, appellant, Orma, and their 13-year-old daughter, Freda; that at that time there was some discussion of an unsigned letter that had been received which stated "they wanted to get shut of Charlie Cobb * * * and they would give two cows or something of the kind, and that he [Cobb] milked at the barn between 4 and 5 o'clock, and that would be a good place to get the job done * * * get him over to the barn, and knock him in the head and leave a letterhead there with Meredith's name on it." Prior to that time, so Wood said, appellant had solicited him to obtain a letterhead from Meredith's store, which appellant stated he proposed to "leave there at the barn" for the purpose of throwing the blame on Orville Meredith.
Freda, appellant's 13-year-old daughter, testified that on three or four occasions she heard her mother and father and Ruby Cobb and Clarence Wood discuss together the matter of doing away with or getting rid of Charlie Cobb; that on one of these occasions the persons just mentioned were around the stove in the living room of the Clark home when there was a discussion of the note (Exhibit "G") received from Ruby Cobb and the proposal to pay $600 or "give two of her best cows if it was not paid for when the job was done." She further testified that on the day of the homicide her father "got up that morning and said he thought it was a good day to do the job because it was raining and they would not be able to track, and in the afternoon he got on some old clothes * * * and a pair of mismated boots, and then left between 2:00 and 2:30," saying to his wife, so the witness recalled, that "it wouldn't put too much suspicion on him because they were sick with the measles," and he went off across the driveway toward the shed and in the direction of Charlie Cobb's place; that he returned around 5 o'clock "and said he got the job done and everything was O. K.;" that he changed his clothes and went down to Cedar Creek, saying that would give him an alibi; and that he was going to burn the boots. She further testified that she had heard her father and mother discuss several methods of doing away with Charlie.
The recital of these facts demonstrates that there was sufficient evidence from which an inference might be drawn that the persons mentioned were acting in concert, and hence made the acts and declarations of each of the conspirators made in pursuance of such conspiracy admissible against any member thereof. State v. Richetti, 342 Mo. 1015, 1038, 119 S.W.2d 330, 342.
The state frankly concedes that the evidence of which complaint is made under the third assignment was not properly received, but contends that such error was harmless. On another trial the error whether harmless or not — should not be repeated.
The remaining point with respect to the action of the sheriff in selecting prospective jurors is not likely to recur upon another trial, and for that reason it will not be treated.
For the error noted, the judgment is reversed, and the cause remanded.
All concur.