Opinion
July 3, 1930.
1. ALIBI: Substantial Evidence: Question for Jury. Where the testimony of some of defendant's witnesses on the defense of alibi may have been true and yet the defendant could have been at the bank when the robbery occurred, and his other witnesses were impeached by a showing of former convictions, and four or five unimpeached witnesses, some of whom knew him personally, positively identified him as one of the robbers and as one of the occupants of the automobile at the time the policeman was killed as they fled from the bank and were attempting to escape, and one as the man who shot another officer, the defense of alibi was clearly a question for the jury, and they were justified in finding that he was present at the robbery and murder.
2. MURDER: Conspiracy: Exhibits: Revolvers and Shotguns Connected with Crime. Seven men were indicted for murder in the first degree in killing a policeman in their attempt to escape after having robbed a bank. The evidence clearly indicated that the robbery and murder were committed pursuant to a conspiracy which included, not only the actual robbery, but also joint action in making their escape with the loot, and the taking of life if thought necessary to effectuate the robbery or escape. In the robbery they secured a large amount of money and some bond coupons. The day following the robbery several revolvers, a shotgun with buckshot loaded shells, a machine gun, ammunition for all these weapons, some masks, and burned remnants of bond coupons identified as those stolen from the bank, were found in a vacant house in a suburb of the city, all concealed under some boards, except the burned coupons which were in the basement. One of the revolvers was identified as a revolver which, some months previously, had passed into the possession of one of the defendants, who was identified as one of the robbers and shown to have had a revolver in his hand during the robbery. Some of the robbers were masked. While fleeing from the bank, in the automobile which had stood close by the bank while it was being robbed, one of the bandits was seen to have a machine gun of the exact description of the one found in the vacant house, and they also had a shotgun like the one there found. The policeman was struck by a buckshot like those in the shells found with the weapons. Held, that all these articles were sufficiently connected up with the murder and robbery as to make them admissible in evidence as exhibits in the case.
3. ____: Other Offenses: Revolver. Evidence that a revolver, admitted in evidence as an exhibit, passed into the possession of one of the defendants, a coconspirator, from the owner of a theater prior to the murder committed in the robbery of a bank, is competent, and is not to be excluded on the theory that it tends by innuendo to show that the owner of the theater had been robbed, where the robbery of the theater, if there was one, is not referred to.
4. ____: ____: Intimately Connected with Crime: Shooting Others: Conspiracy. Evidence that the defendant and other bandits as they fled in an automobile from the bank which they had robbed were shooting as they fled, and that a young woman was struck by a bullet from the bandit car a second or two after the deceased policeman was shot and killed, and that as they continued to flee another officer was shot from the same car, is not evidence of separate offenses. The shooting of the young woman and the other officer were parts of a continuous occurrence, so intimately connected with the robbery and murder that an intelligent account of those offenses could scarcely be given without them. Besides, such evidence tends to show the nature, purpose and extent of the conspiracy to rob and escape.
5. TRIAL: Remarks to Jury: No Request for Withdrawal. Remarks by a witness in the hearing of the jury, made in response to a question by a juror, during an interlude in the trial and out of the hearing of the court, and afterwards repeated at the request of defendant, who did not ask for their withdrawal, but only that the jury be discharged, and did not request that the jury be directed to disregard them, cannot on appeal be held to be prejudicial error.
6. ____: Argument to Jury: Gangster. A reference, by the prosecuting attorney in his closing argument to the jury, to defendant and his confederates in the robbery and murder, as a bunch of Italian gangsters, made in response to a bitter attack by defendant's counsel upon the State's witnesses whom he characterized as liars and perjurers, though improper, is not prejudicial error, where it is apparent that the objection is not to the use of the word "gangsters," but to the word "Italian," and there is evidence that defendant is of Italian parentage, and the evidence strongly tends to show that defendant and his coconspirators were gangsters and bandits.
7. JURY: Murder: Panel of Forty-eight: Rejection of Accepted Juror. A juror, accepted upon his first examination, but later recalled at his own request and found disqualified and rejected, cannot be held to be a part of the panel, though his name is inadvertently retained on the list, and with that of the other forty-seven apparently makes a panel of forty-eight; and no harm is done defendant where he knows that the juror has been excused and he is in no wise misled, but is allowed his statutory number of challenges.
8. JURY: Voir Dire: Acquaintance with Coindictees. To permit counsel for the State to ask prospective jurors on voir dire examination if they are acquainted with two other men jointly indicted with defendant, is not prejudicial, where the State expects to prove upon the trial that said two men participated with defendant in the commission of the murder for which he is being put upon his trial — the evident purpose of the inquiry being to obtain information which will guide the prosecuting attorney in making his challenges, and the inquiry goes no further.
9. INSTRUCTION: Refusal. It is not error to refuse instructions asked by defendant if those given fully cover the subject.
10. ____: Alibi: Reasonable Doubt. An instruction which tells the jury that it devolves upon the State to prove, beyond a reasonable doubt, the presence of defendant at the time and place where the offense was committed and that defendant participated therein as charged, and that if upon consideration of all the evidence they have a reasonable doubt of the presence of defendant at the time and place where the offense was committed they should find him not guilty, and that defendant is not required to prove the defense of alibi beyond a reasonable doubt, but that it is sufficient to entitle him to acquittal if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the offense charged, does not require defendant to prove the defense of alibi beyond a reasonable doubt, and cannot be so understood, but is correct.
11. ____: Circumstantial Evidence. Where the State's evidence of defendant's guilt is not wholly circumstantial, a refusal to give a requested instruction on circumstantial evidence is not error.
Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.
AFFIRMED.
Jos. R. Lasson and Myer Goldberg for appellant.
(1) It was error and an abuse of judicial discretion to refuse appellant a new trial, for the reason that the verdict is contrary to the law and the evidence. (a) The State charged appellant with the commission of one crime, and proved the commission of another crime. (b) The court instructed the jury on the law on a different crime other than that charged and proven by the evidence. The State by information in common law form charged appellant jointly with others with the crime of murder in the first degree; the evidence adduced by the State tended to prove the commission of a homicide after the perpetration of a robbery, but in no wise connected therewith and not a necessary part of the original scheme, design, and plot, if any. (c) The court instructed the jury on the law of conspiracy to commit the crime charged in the information, the absence of any evidence to the contrary notwithstanding. Sec. 30, Art. 2, Mo. Constitution; Sec. 1, 14th Amendment. (2) It does not affirmatively appear from either the record or record proper that appellant was present in person at the time the order was made overruling appellant's motion and formally sentencing appellant in accordance with the verdict of the jury. Sec. 22, Art. 2, Mo. Constitution; Sec. 28, Art. 2, Mo. Constitution; Sec. 30, Art. 2, Mo. Constitution; Sec. 1, 14th Amendment; Sec. 4008, R.S. 1919; Cooley on Constitutional Limitations, p. 576; Hopt v. Utah, 110 U.S. 574, 579; State v. Able, 65 Mo. 37; State v. Dooly, 64 Mo. 146; State v. Allen, 64 Mo. 67; State v. Jones, 61 Mo. 232; State v. Braunschweig, 36 Mo. 398; State v. Schoenwald, 31 Mo. 167; State v. Buckner, 25 Mo. 167; State v. Matthews, 20 Mo. 55; Harris v. People, 130 Ill. 457; State v. Christian, 30 La, Ann. 367; Stubbs v. State, 49 Miss. 716; State v. Cross, 27 Mo. 332; Dougherty v. Com., 69 Pa. 286; Younger v. State, 2 W. Va. 579. (3) The trial judge's successor erred in not sustaining appellant's motion for a new trial because the death of the trial judge, who died before passing upon or determining appellant's motion for a new trial, constitutes a substitution of judges during the trial and such substitution of judges during the trial deprived appellant of his constitutional right of a trial by jury and of his life without due process of law. And the trial judge's successor's action and order as so made overruling the appellant's motion for a new trial violated appellant's constitutional right in that it is violative of and contravenes: Sec. 28, Art. 2, Mo. Constitution; Sec. 30, Art. 2, Mo. Constitution; Sec. 1, 14th Amendment; West v. State, 42 Fla. 244; Bass v. Swingley, 42 Kan. 729; Moses v. State, 23 Ohio Cir. Ct. 535; Durden v. People, 192 Ill. 496; State v. Burns, 280 S.W. 126; Frank v. Mangum, 237 U.S. 309; People v. McPherson, 74 Hun, 336; United States v. Harding, 1 Wall. Jr. 139; King v. Mann, 285 S.W. 100; State v. Webb, 162 S.W. 622; Cap. Traction Co. v. Hoff, 174 U.S. 13; Freeman v. United States, 227 F. 732; Chas. W. McKenny v. Wood, 108 Me. 335; Ohms v. State, 49 Wis. 419; State ex rel. v. Railroad Co., 270 Mo. 260. (4) It does not appear that the trial judge, who died before passing upon or determing the appellant's motion for a new trial, was either satisfied with or approved the verdict of the jury. Bass v. Swingley, 42 Kan. 729; State v. Harris, 22 S.W.2d 807; Sec. 28, Art. 2, Mo. Constitution; Sec. 30, Art. 2, Mo. Constitution; Sec. 1, 14th Amendment. (5) The trial court erred in permitting the prosecuting attorney to indulge in improper conduct and to make improper, inflammatory, and prejudicial remarks in his closing arguments to the jury, over the objection of counsel for appellant. State v. Nicholson, 7 S.W.2d 375; State v. Smith, 281 S.W. 35, 313 Mo. 71; State v. Taylor, 8 S.W.2d 31; State v. Guerringer, 265 Mo. 408; State v. Goodwin, 217 S.W. 264. The trial judge's successor erred in that he exceeded the authority vested in him and abused his judicial discretion in confining and limiting his deliberation and finding only to determine whether the trial judge committed error, rather than to ascertain from all of the evidence whether the verdict is against the weight of the evidence or whether prejudicial error was committed at any stage of the trial. State v. Reppley, 213 S.W. 478; State v. Hess, 240 Mo. 159; State v. Webb, 254 Mo. 435; State v. Baker, 246 Mo. 376; State v. Kyle, 259 Mo. 401; State v. Meysenberg, 171 Mo. 1; State v. Pagels, 92 Mo. 300; Henwood v. People, 57 Colo. 544, 143 P. 373; Bailey v. People, 54 Colo. 337, 130 P. 832, 45 L.R.A. (N.S.) 145; Black v. State (Tex.Crim.), 65 S.W. 906; Hamilton v. State, 37 S.W. 194; Hilton v. People, 59 Colo. 200, 140 P. 250; People v. Cahoon, 88 Mich. 456, 50 N.W. 384; People v. Milke, 55 App. Div. 372, 66 N.Y.S. 889; Franklin v. State, 41 Tex.Crim. 21, 51 S.W. 961; Johnson v. United States, 131 C.C.A. 613, L.R.A. 1915-A, 862. (6) The trial court erred in admitting into evidence certain evidence of substantive offenses other than that charged. Whart. Crim. Ev. sec. 30; Kribs v. People, 82 Ill. 425; Watts v. State, 5 W. Va. 532; Devine v. People, 100 Ill. 290; Sutton v. Johnson, 62 Ill. 209; 1 Phil. Ev. (5 Amer. Ed.) 644; Rose, Crim. Ev. (7 Amer. Ed.), sec. 90, p. 90; Kinchelow v. State, 5 Humph. 9; State v. Nave, 285 S.W. 723; State v. Tunnell, 296 S.W. 423. (7) The trial court erred in permitting and allowing the State to introduce numerous prejudicial state exhibits, viz: several revolvers, a shotgun, a machine gun, and a large assortment of cartridges and ammunition alleged by the State to have been used during the perpetration of said alleged robbery, but that were not connected up with either this appellant or the crime charged in the information. (8) The trial court erred in refusing to dismiss the jury at the request of defendant for the failure of the court to reprimand counsel for the State at the request of counsel for appellant for improper conduct during the trial of said cause. And for making improper and prejudicial remarks in the presence and hearing of the jury and the introduction of incompetent, irrelevant, immaterial, and prejudicial testimony. Dyson v. State, 26 Mass. 362; Hudson v. State, 43 Tenn. 355; Sage v. State, 22 Ariz. 151, 191 P. 534; Herndon v. Black, 97 Ga. 327, 22 S.E. 924; Over v. Schiffling, 192 Ind. 191, 26 N.E. 91. (9) The trial court erred in giving in behalf of the State instructions numbered 2, 3, 3-A, and 5, in that said instructions were incomplete, improper, and inadequate statements of the law; they were not warranted, supported, or justified by either the crime charged or the evidence adduced in the trial of said cause; they inadequately and improperly failed to define and exemplify the law that they purported to define and exemplify and the giving of said instructions was prejudicial to the appellant. Secs. 4052, 3230, R.S. Mo. 1919; State v. Vinso, 171 Mo. 578, State v. Taylor, 118 Mo. 153; State v. Conway, 244 Mo. 271; People v. Taylor, 36 Cal. 255; Lawrence v. State, 19 Tex. Civ. App. 495; Moore v. State, 44 Tex. Civ. App. 562, 722 S.W. 595; Michie on Homicide, 1397. (10) The trial court erred in refusing to give on behalf of defendant, defendant's instructions numbered 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, in that said instructions were a proper, complete, and adequate statement of the law; they were warranted, supported, and justified by the evidence adduced in the trial; they did properly define and exemplify the law that they purported to define and exemplify, and the refusal to give said instructions was prejudicial to the defendant. Ross v. State, 133 S.W. 638; Mundine v. State, 38 S.W. 619; Michie on Homicide, 471, 472. (12) The trial court erred in permitting the prosecuting attorney to ask the jury, on their voir dire examination, if they knew certain other persons, naming them, then under indictment in the same court, over objection of counsel for the defendant. State v. Meysenburg, 171 Mo. 1.
Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent; Otto Potter of counsel.
(1) It has always been proper in Missouri where defendants conspire to commit a robbery and in the perpetration of such robbery, commit murder, for the indictment or information to charge murder alone, and evidence of the conspiracy, and the commission of the robbery may be shown in evidence as a part of the res gestae to show the degree of the crime; and also, for the purpose of showing the entire transaction and the motive for the commission of the murder. State v. Meyers, 99 Mo. 112; State v. Barrington, 198 Mo. 96; State v. Parr, 246 S.W. 905; State v. Millard, 242 S.W. 923; State v. Sykes, 191 Mo. 62; State v. Katz, 266 Mo. 503. The evidence in the case tended to show a conspiracy to rob the Home Trust Company, and the instructions for the State required the jury to find that the defendant had entered into a conspiracy with others to commit the crime of robbery; the forms of the instructions used have been approved by this court in many cases. State v. Leon Williams, 274 S.W. 434; State v. Baker, 278 S.W. 989; State v. Vaughan, 200 Mo. 1; State v. Parr, 246 S.W. 905. The Supreme Court of Missouri disposed of all of the contentions raised under point 1 of appellant's brief in the following language: State v. Millard, 242 S.W. 925. (2) The trial judge's successor did not err in overruling appellant's motion for new trial because of the death of the trial judge, who died before passing upon or determining appellant's motion for new trial; this did not constitute a substitution of judges during the trial and did not deprive the appellant of any constitutional or statutory right: Sec. 1463, R.S. 1919; Glaves v. Wood, 78 Mo. App. 353; State ex rel. v. Perkins, 139 Mo. 117; Fehlhauer v. City of St. Louis, 178 Mo. 653; Bailey v. Coe, 106 Mo. App. 653. (3) If the felony committed, from which the criminal is attempting to escape, is robbery, and the homicide is committed in order to escape the crime, it is murder in the first degree. State v. Robinett, 279 S.W. 699; State v. Williams, 82 P. 353, 28 Nev. 395; Christian v. State, 71 Tex.Crim. 566, 161 S.W. 101; Conrad v. State, 75 Ohio 52, 6 L.R.A. (N.S.) 1154, 8 Ann. Cas. 966. (4) The trial court did not err in refusing to instruct the jury on murder in a lesser degree than first degree. Sec. 3230, R.S. 1919. The evidence all tends to show that the defendant with others conspired to rob the trust company and that in the perpetration of such robbery, one of the conspirators shot and killed the deceased. These facts being present, the court was not authorized to instruct on second degree murder. State v. Baker, 278 S.W. 989; State v. Vaughan, 200 Mo. 22; State v. Hayes, 262 S.W. 1037; State v. Williams, 274 S.W. 434. (5) The closing argument for the State was unusually fair to the appellant. Most of the statements complained of were made in reply to similar argument by counsel for the defendant, and none of them were prejudicial to the defendant. State v. Harmon, 296 S.W. 397; State v. Greer, 12 S.W.2d 87; State v. Marshall, 297 S.W. 63; State v. McBride, 231 S.W. 594; State v. English, 308 Mo. 704; State v. Prunty, 276 Mo. 377; State v. Reppley, 278 Mo. 343; State v. Murray, 316 Mo. 38. (6) The trial court did not err in permitting the State to introduce the revolvers and other weapons used by the defendant and others in the robbery of the trust company. Weapons, bullets, tools, instruments or other articles employed in the commission of a crime are admissible in evidence. State v. Wilson, 223 Mo. 189; State v. Gartrell, 171 Mo. 507; State v. Cooper, 259 S.W. 436; State v. Johnson, 289 S.W. 789; 16 C.J. 618, sec. 1225.
This is an appeal by defendant, Tony Mangercino, alias Tony Mangiaracina, from judgment and sentence of death upon conviction of murder in the first degree. This defendant and John Messino, Carl Nasello and four others were jointly charged by information filed July 3, 1928, in the Circuit Court of Jackson County, Missouri, with the murder of James H. Smith. Severance having been granted them the three named were tried separately and each was convicted of murder in the first degree, sentenced to death and appealed. The three cases were argued together in this court.
The Messino case was tried first, the trial of this case occurring about two weeks later (July 31 to August 7, 1928). The issues, both of law and fact, in this and the Messino cases, are substantially identical except that in this case there was some evidence of an alibi which was lacking in the Messino case, no evidence there having been offered by the defendant. As the facts are stated in that opinion a brief outline here will suffice. See State v. Messino, ante, page 743, 30 S.W.2d 750, concurrently decided.
The State's evidence tended to show that on June 14, 1928, about seven men, among whom were defendant, Messino and Nasello, robbed the Home Trust Company (referred to in evidence as the bank), a banking institution located at 1117 Walnut Street, Kansas City, Missouri, and killed James H. Smith, a policeman then serving as traffic officer. The robbers secured about $19,000, mostly in cash, but including some Liberty Bond interest coupons. Smith was shot and killed at a point some 150 feet from the bank as the robbers with their plunder were escaping from the institution in a Buick automobile, which had been procured and was in readiness for the purpose. The evidence clearly indicated that the robbery and murder were committed pursuant to a conspiracy which included, not only the actual robbery, but also joint action by the robbers in making their escape with the loot and the taking of life it thought necessary to effectuate the robbery and escape.
Counsel representing defendant also represented Messino. The two cases were tried on the same theory and the briefs in this court are alike, the same points being urged and for like reasons, except for the defense of alibi.
I. Applications for change of venue from Jackson County and from all of the judges of the judicial circuit and for continuance, similar to those in the Messino case, were made and overruled. Evidence pro and con was heard by the court on the application for change of venue from the county. The Change same situation existed in respect to the death of the of Venue. trial judge before passing on the motion for new trial as in the Messino case. These questions were fully considered in that case and were decided adversely to the defendant. For like reasons they are so ruled here.
II. Defendant did not testify, but he called as witnesses his father, mother, a sister, brother-in-law and two others, whose testimony tended to show his presence at the homes of his father and brother-in-law about the time of the robbery and Alibi. murder. Allowing for but slight inaccuracy in the estimate of time, the testimony of defendant's father, mother and sister could have been true and yet defendant could have been at the bank when the State's evidence shows he was there. One of the other witnesses was impeached by a showing of two convictions, one for sale and one for possession of intoxicating liquor. Four or five unimpeached witnesses, some of whom knew defendant personally, positively identified him as one of the robbers and one of the occupants of the Buick car at the time Smith was killed. One identified him as the man who shot traffic officer Capshaw at the street intersection next north of the one where Smith had been stationed. Clearly there was abundant evidence to justify the jury's finding that defendant was present at the robbery and murder.
III. Several revolvers, a shotgun with buckshot loaded shells, a machine gun, ammunition for all these weapons, some masks and burned remnants of Liberty Bond coupons identified as those stolen from the bank, were introduced in evidence, Exhibits. over defendant's objection that they were not "connected up" by showing that they were weapons, etc., used in the robbery and murder and did not tend to connect defendant with the crime charged.
They were found the day following the robbery and murder at a vacant house in Eastwood Hills, a suburb of Kansas City. All of the articles were found concealed under some boards except the burned interest coupons which were in the basement. One of the revolvers was identified as a revolver which, some months before the robbery, had passed into the possession of Nasello who was identified as one of the robbers and shown to have had a revolver in his hand during the robbery. Some of the robbers were masked. The burned interest coupons were those stolen from the bank. While fleeing from the bank in the car one of the bandits was seen to have a machine gun of the exact description of the one found at the vacant house and they also had a shotgun like the one there found. Smith was struck by buckshot like those in the shells found with the weapons. We think there were sufficient circumstances shown to justify the admission of the exhibits. The weapons used in the robbery and murder were admissible. [State v. Cooper (Mo.), 259 S.W. 434.]
IV. Complaint is made of alleged error in the admission of evidence of "other offenses," as follows: (a) The showing that a revolver, as above mentioned passed into the possession of Nasello from one Myers prior to the robbery of the Other bank. The contention is that a theater of which Myers Offenses. was manager had been robbed and that this evidence tended by innuendo to show that robbery. The evidence was offered, we presume, to show that Nasello, one of defendant's accomplices, owned one of the revolvers found at the vacant house. The robbery of the theater, if there had been one, was not referred to. The evidence was competent.
(b) A young woman was wounded by a bullet or buckshot from the bandit car, possibly a second or two after Smith had been shot, and at the next intersection — it could hardly have been a minute later — officer Capshaw was wounded from the same car as it continued its flight, the occupants shooting all the Murder: while. These were not separate offenses, as contended Shooting by defendant, but parts of a continuous occurrence, so Others. intimately connected with the robbery and murder that an intelligible account of the offense charged could hardly have been given without these incidents. [State v. Parr (Mo.), 246 S.W. 903-905, and cases cited.] Then too, these incidents tended to show the nature, purpose and extent of the conspiracy. The evidence complained of was properly admitted.
V. Defendant charges that the court permitted counsel for the state to "indulge in improper conduct" in the trial, and complains of certain remarks of the prosecuting attorney in his closing argument to the jury. (1) During the trial it appears that while witness Capshaw was on the stand and Remarks several of the attorneys were at the judge's desk Out of discussing with him some question which had arisen, Hearing of Capshaw had the machine gun in his hand and a juror Court. asked him how many times it would shoot, to which Capshaw replied, "About a hundred;" also that during this interval one of the attorneys for the State, observing that Capshaw, who was still suffering from his wound, appeared fatigued, said to him: "I believe we will be through right soon, I hope we don't have to keep you long:" to which Capshaw replied: "Well, I am just weak, you know."
The court, being engaged with counsel, did not hear those conversations. In the hearing of the jury and without asking its withdrawal, defendant had Capshaw repeat from the witness stand the conversation between him and the juror, thus by his own act proving the number of times the gun would shoot. He then asked the court to declare a mistrial which was refused. No request was made for a direction to the jury to disregard the things now complained of. No reason is assigned why they were prejudicial and we can see none. This assignment is overruled.
(2) The remark complained of, made by the prosecuting attorney, was a reference in the closing argument to defendant and his confederates as a bunch of Italian gangsters. Defendant objected for the reason that "it is wholly improper and Italian inflammatory. There is no evidence about this Gangsters. defendant being an Italian gangster or any other nationality." The court overruled the objection, defendant excepting.
The part of the prosecuting attorney's argument in which he used the language complained of was in answer to a bitter and apparently unjustified attack made by defendant's counsel upon the State's witnesses who had identified defendant, said counsel having characterized one of those witnesses as a liar and perjurer and having also, without using those words, argued that the others had committed perjury.
From the wording of defendant's objection and by reference to other portions of the argument, we think defendant's objection was to the use of the word "Italian," rather than the word "gangster," and that it was so understood by the court. There was evidence that defendant was of Italian parentage. While the term "gangster" may be vague in its signification, we think it cannot be said that it was wholly inappropriate to characterize the conduct of those engaged in the robbery and murder, nor that evidence was lacking to justify the inference that defendant and his confederates were, on that occasion at least, gangsters. The court, therefore, cannot be convicted of error in overruling the objection as made. Moreover, while we do not wish to be understood as approving or condoning the use of such terms in referring to a defendant in the argument of a case, we do not regard it, under the circumstances and in view of the evidence, as having been prejudicial. [State v. Nasello, ante, page 442, 30 S.W.2d 132, concurrently decided, and cases cited.]
VI. Defendant contends that the court erred in drawing a jury panel of forty-eight instead of forty-seven. That was not done. In qualifying prospective jurors, a Mr. Fox was at first tentatively accepted. Later and before the panel of forty-seven had been completed, Mr. Fox sent word to the court Juror: that he had misunderstood a question relative to Accepted whether or not he was opposed to the death and Rejected. penalty. He was recalled and questioned further and it developed that he was so opposed. Thereupon he was excused by the court, over defendant's protest that having been "accepted," as defendant contended, he could not be excused. The panel was later completed by the addition of enough more to make forty-seven without Mr. Fox. Defendant introduced a paper containing a list of forty-eight names, being the names of the forty-seven who qualified and Mr. Fox's name also, which defendant's counsel testified was the panel as handed to him without the State's challenges indicated. Upon this showing he claims that there were forty-eight men qualified from whom the twelve jurors were to be selected, thus allowing the State an additional peremptory challenge. He does not contend that he was not himself allowed the statutory number of challenges. The fact that through some one's mistake Fox's name was left on the list from which challenges were to be made in no way misled defendant or his counsel and they do not so claim. Both sides knew that Fox had been excused by the court and was not to be considered as one of the panel. There is no merit in this contention.
Neither is there merit in the further contention that the court erred in permitting counsel for the State to ask prospective jurors on voir dire examination if they were acquainted with Messino and Nasello. Those two were charged jointly with defendant and the State expected to prove and on the Voir Dire. trial did prove them to have participated with defendant in the commission of the offense for which defendant was on trial. The prosecuting attorney doubtless wanted the information sought to guide him in making challenges. The inquiry went no farther than the question whether or not the jurors were acquainted with the two men named.
In State v. Meysenburg, 171 Mo. 1, 71 S.W. 229, it was held that the prosecuting attorney should not have inquired on voir dire examination as to the jurors' acquaintance with other persons charged with crime. The court said (l.c. 37) that the inquiry took too broad a scope and (p. 66) that the evident purpose of the inquiry was to do indirectly what could not be done directly, viz., to intimate to the jurors that defendant was "a bird of the same feather" as those referred to and thus in advance prejudice the jury against the defendant. There is nothing to indicate such purpose in this case. Defendant was not prejudiced by the inquiry.
VII. Defendant requested four separate instructions on the subject of alibi which were by the court refused and he alleges error in such refusal. That subject was fully covered in the instructions given. By Instruction No. 10 the jurors were told in substance that if they believed from the evidence that at the time the alleged crime was committed defendant was not present at the scene of the crime, they must acquit; by number 14 they were instructed in substance that it devolved upon the State to prove beyond a reasonable doubt the presence of defendant at the time and place where the offense was committed and that defendant participated therein as charged, and that if upon consideration of all the evidence they had a reasonable doubt of the presence of defendant at the time and place where the offense was committed they should find him not guilty, and further, that defendant was not required to prove the defense of alibi beyond a reasonable doubt, but that it was sufficient to entitle him to acquittal if the defense upon that point raised a reasonable doubt of his presence at the time and place of the commission of the offense charged. Instruction 9 directed the jury that if the whole evidence in the case left their minds in such condition that they were neither morally certain of defendant's innocence or of his guilt, a reasonable doubt existed and they must give defendant the benefit of such doubt and acquit him. Instructions numbered 9, 10 and 14 were not challenged in defendant's motion for new trial. There is some criticism of number 14 in his brief as requiring him to prove the defense of alibi beyond a reasonable doubt, but it does not so require and could not have been so understood. The defense of alibi was fully submitted by the instructions given, and those requested by defendant, had they been given, would have been in substance and effect repetition. There was, therefore, no error in their refusal.
Certain other instructions which were requested and refused sought to define reasonable doubt and presumption of innocence. Those subjects also were fully covered by the instructions given, which followed forms heretofore often approved by this court. [See State v. Gus Howard (Mo.), 324 Mo. 145, 23 S.W.2d 11, and cases cited.] Defendant's requested instructions on those subjects were not free from error, but since those issues were fully and properly submitted we need not further examine the refused instructions relative thereto. They were properly refused.
Complaint is also made of the court's refusal to give a requested instruction on circumstantial evidence. The State's evidence was not wholly circumstantial, hence such instruction was not required to be given. [State v. Lowry, 321 Mo. 870, 12 S.W.2d 469; State v. Steinkraus, 244 Mo. 152, 148 S.W. 877; State v. Nasello, supra, ante, p. 442.]
There was no contention in this case that the court did not give instructions submitting the converse of the State's main instructions.
Except as hereinabove mentioned, the instructions, both those submitting the issues and those requested by defendant and refused, were substantially the same as in State v. Messino, supra (q.v.), and the same contentions here urged relative thereto were pressed in that case and were ruled adversely to defendant. See also State v. Nasello, supra. Other points urged for reversal, not hereinabove specifically referred to, were also urged upon like grounds in the Messino case and were there fully considered and therefore need not be further discussed. They are ruled against defendant.
The information, verdict and judgment are in due form and we find the record free from reversible error. Defendant had a fair trial and the verdict is amply sustained by the evidence. The judgment must be and it is affirmed. Davis and Henwood, CC., concur.
The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All of the judges concur.