The State v. McNamara
| Citation | 110 S.W. 1067,212 Mo. 150 |
| Parties | THE STATE v. MICHAEL McNAMARA, Appellant |
| Decision Date | 19 May 1908 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.
Reversed and remanded.
C. P Johnson and Silver & Brown for appellant.
(1) The court committed reversible error in permitting witness Thomas Gleason to testify to the matters set out in the record. The evidence so admitted was wholly foreign to the crime for which defendant was on trial; was intended to and necessarily had the effect of inflaming the minds of the jurors against him, and thereby prejudicing them against him, not only on the question of defendant's guilt or innocence, but likewise on the matter of the assessment of punishment. See authorities, infra, as to inadmissibility of evidence of other offenses. (2) The court further committed reversible error in admitting the evidence of the witness Mrs. Margaret Gaskill as to the alleged assault made on her in November 1904, and also as to the alleged assault by defendant on the witness in April, 1905. The evidence related to altogether different offenses from the one for which defendant was being tried, had no connection with the latter or with defendant's deceased wife, and was calculated to inflame the minds of the jurors to the highest pitch against defendant, and its admission was gross and obvious error. State v. Spray, 174 Mo. 569; State v. Boatright, 182 Mo. 51. Error is presumptively harmful, and it devolves on the party who commits it to show that it could not possibly have resulted in injury. State v. Shipley, 174 Mo. 513. (3) The court committed error in giving instruction 13. The first clause is a peremptory instruction in the most unqualified terms to return a verdict of guilty; is a directed verdict in a criminal case, and is clearly erroneous. As a verdict of acquittal cannot be set aside, an instruction directing a verdict of guilty is not permissible. Const., art. 2, secs. 22, 28; State v. Hamey, 168 Mo. 182; State v. Vaughan, 200 Mo. 1; United States v. Taylor, 3 McCrary 502; State v. Bockstruck, 136 Mo. 358. Nor can it be justly contended that the instructions subsequently given by the court on reasonable doubt extracted the poison and cured the error. (a) First, as stated above, error is presumptively harmful, and it devolves on the party availing himself of it to show that it could not possibly have resulted in injury. State v. Shipley, 174 Mo. 513. (b) The instruction complained of is necessarily in conflict with that on reasonable doubt given by the court; one peremptorily instructs the jury that "in this case there is no justification or excuse in law, and you must find the defendant guilty under the law of this State of either murder in the first degree or murder in the second degree;" the other informs the jurors that if they have a reasonable doubt of defendant's guilt, they should acquit. The instructions being so diametrically opposed to each other, it was impossible for the jury to say which one should control them; the outcome, however, of the case would indicate that they obeyed the peremptory one. Conflicting and contradictory instructions constitute reversible error. Mansur, etc., v. Ritchie, 143 Mo. 588; State v. Grugen, 147 Mo. 39; Modisett v. McPike, 74 Mo. 636; Spillane v. Railroad, 111 Mo. 556; Buddenberg v. Railroad, 108 Mo. 394. (4) Defendant testified to the effect that when he saw his wife in the place of prostitution with Brophy, he lost his sense of reason, became insane; that he was crazy and insane at the time of the shooting, and did not know or remember of shooting his wife until after he saw her lifeless body lying in the hall on the floor. This afforded a basis for an instruction on defendant's mental state, and as to his irresponsibility for the homicide, and an instruction was requested on that feature of the case and was refused, which was error.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State; Arthur N. Sager of counsel.
(1) Counsel for defendant contend that the court committed reversible error in permitting the witness Gleason to testify, as set forth in the record. Mr. Gleason was an uncle of the deceased, and took her and her baby back to the defendant's home one night in January preceding the homicide. The deceased and her baby had not been staying with the defendant for some time, and the defendant had been living at home by himself. On entering the defendant's home, the defendant said to the witness, "God damn you, take her home and keep her." The witness tried to explain to the defendant that that night, being very cold, was a bad time to send his wife and baby out from home, but the defendant would not listen to him. At another time, this witness visited the defendant's home and asked the defendant, in the presence of the deceased, why he had tried to make the deceased do a disgraceful act (mentioning the act), and the defendant replied, At the same time, the defendant reached for his pistol and tried to assault the witness. It is insisted by the defendant that the admission of such evidence had the effect of improperly and unjustly inflaming the minds of the jury against him, and prejudicing them against him, both on the question of his guilt, and likewise on the assessment of the punishment. In this insistence the defendant is in error. It has always been considered competent to prove that the husband, who is charged with the murder of his wife, has been guilty of gross indignities, as well as brutal treatment of his wife. Such evidence tends to show an unfriendly feeling for her, and is proper for the consideration of the question of the murder of the wife by the husband. State v. Reed, 117 Mo. 607; State v. Callaway, 154 Mo. 99; State v. Duestrow, 137 Mo. 44; 25 Amer. Dig., col. 532; 26 Amer. Dig., cols. 486 and 525. (2) No error was committed by the trial court in admitting the evidence of State's witness Mrs. Margaret Gaskill, to the effect that, prior to her marriage, the defendant assaulted her on two occasions; the first time offering her money to have sexual intercourse with him, and then jerking the sleeve of her dress out in an effort to force her, and the second time in throwing her down on the floor, getting on top of her and trying to have connection with her. Counsel for defendant are in error as to the object of such evidence; it was not introduced for the purpose of proving other offenses against the defendant, but for the purpose of proving his lack of respect and love for his wife, and consequently a desire on his part to get rid of her. State v. Duestrow, 137 Mo. 86; Wharton's Crim. Evidence, sec. 785; Garlitz v. State (Md.), 4 L. R. A. 601. The authorities cited by appellant (State v. Spray, 174 Mo. 569, and State v. Boatwright, 182 Mo. 34), are not in point, and do not sustain his contention. State v. Callaway, 154 Mo. 110; State v. Punshon, 124 Mo. 456; People v. McCann, 3 Park. Crim. 294; People v. Williams, 3 Park. Crim. 84; Hall v. State, 40 Ala. 698; Duncan v. State, 88 Ala. 31; Johnson v. State, 94 Ala. 35; State v. Hinkle, 6 Iowa 380; People v. Nileman, 8 N.Y. 300; People v. Wilson, 109 N.Y. 345; People v. Harris, 136 N.Y. 423; Wilkerson v. State, 31 Tex. Crim. Rep. 86. All of the testimony complained of by appellant in points one and two of the brief are admissible on still another ground. They are admissible for the purpose of showing the defendant's estimate and appreciation of marital relation and fidelity and the improbability that he was shocked and overcome in the manner described in his testimony. Garlitz v. State (Md.), 4 L. R. A. 605; Harris v. State, 40 Tex. Crim. Rep. 8; Morrison v. Com., 67 L. R. A. 529; Farris v. People, 4 L. R. A. 584; State v. Holme, 54 Mo. 164. (3) Referring to the third point in appellant's brief, to-wit, the giving of instruction 13, respondent admits that this is a case wherein the defendant stands charged with murder in the first degree. The testimony shows beyond dispute that one of the three degrees of homicide, to-wit, murder in the first degree, or murder in the second degree, or manslaughter in the fourth degree, had been committed by defendant. State v. Anderson, 86 Mo. 310. The defendant has a right to have an instruction based on his own testimony and to testify as to his intent. State v. Partlow, 90 Mo. 608. It has also been held, repeatedly, that, whenever the facts constituting the guilt are undisputed, the trial court is justified in directing a verdict of guilty. U. S. v. Anthony, 11 Blatchf. 200; State v. Herold, 9 Kan. 194; People v. Ackerman, 80 Mich. 589; People v. Newman, 85 Mich. 98; People v. Elmer, 109 Mich. 493; State v. Moore, 101 Mo. 316; Com. v. Magee, 10 Phila. 201; Burt v. State, 38 Tex. Crim. Rep. 397; State v. Goff, 65 Mo.App. 498.
This is an appeal from the judgment and sentence of the circuit court of the city of St. Louis, sentencing the defendant to the penitentiary for fifteen years for murder in the second degree.
The indictment charged murder in the first degree by the defendant on the 23d day of August, 1906, at the city of St. Louis, of Mrs. Nellie McNamara by shooting her with a certain pistol charged with gunpowder and a leaden ball, and inflicting upon her one mortal wound of which she instantly died on said day at the city of St. Louis. The indictment is in the form expressly approved by this court in State v. Gray, 172 Mo. 430, 72 S.W. 698, and on many occasions since the announcement of that decision, and for that reason it will not be set forth at length in this opinion.
The deceased, Mrs. Nellie McNamara, was the...
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