State v. Moxley

• Citation: 102 Mo. 374,14 S.W. 969
• Parties: STATE v. MOXLEY.
• Decision Date: 22 December 1890
• Court: Missouri Supreme Court

14 S.W. 969

102 Mo. 374

STATE v. MOXLEY.

Supreme Court of Missouri.

December 22, 1890.

ACTING STATE'S ATTORNEY — POWERS — MURDER — EVIDENCE — PRESUMPTION — ARGUMENTS OF COUNSEL.

1. The prosecuting attorney having been retained for the defense before his election, the attorney appointed by the court to prosecute has

authority to sign the bill of indictment, under Rev. St. Mo. 1889, § 642, providing that if the prosecuting attorney shall have been employed as counsel in any case where such employment is inconsistent with the duties of his office, the court shall appoint another attorney to prosecute, and section 644, providing that "the person thus appointed shall possess the same powers as the proper officer would if he were present."

2. In a trial for murder, statements of deceased, whose health is in question, concerning her physical condition, are competent, though not made to a physician.

3. The state having offered testimony in a trial for murder that the neck of the deceased had not the rigidity which usually characterizes the necks of the dead, and the theory of the state being that this was owing to its having been broken, one who has prepared many corpses for burial is competent as an expert to testify that the neck of the deceased did not differ in that regard from the necks of other dead persons.

4. Medical experts, who heard the testimony offered by the state concerning an autopsy, may be asked by the defense "if it was properly made," the facts relating to the autopsy being undisputed.

5. Spinal vertebrœ were exhibited to the jury as those of the deceased. The witness had delivered them to E., and received them again from S. He thought them the same, but could not identify them by any mark or other indication. Held, that they were not sufficiently identified, and there was error in admitting them.

6. In a prosecution for murder, based wholly on circumstantial evidence, it is error to refuse a charge that guilt must be proved by facts and circumstances, all of which are consistent with each other and with the guilt of the accused, and absolutely inconsistent with any reasonable theory of innocence.

7. In the prosecution of a husband for killing his wife, based wholly on circumstantial evidence, in which the state places much reliance on his conversations relative to the death of his wife, and its supposed cause, disclosed in evidence about four years after the conversations were had, it is error to refuse a charge that if the statements were made casually in the course of ordinary conversation, they should be considered with great caution because of the liability of witnesses to forget or misunderstand what was really said or intended.

8. It is error, in such case, to refuse an instruction that the mere fact that deceased died suddenly is not proof that her death was the result of a criminal act; but the state must prove such to be the fact, and without such proof it must be presumed that she died from natural causes.

9. The defendant, in such case, is entitled to an instruction that he enters on the trial not only with the ordinary presumption of innocence in his favor, but with the added and equally favorable presumption which arises from the marital relation, and the prosecution must overcome the force of both these presumptions.

BRACE, J., dissenting.

10. In his opening counsel for the state said: "They have offered not a word to show how she came to her death. Not a neighbor is put on the stand to show what he said caused her death. There they are, alone; she in perfect health; and in the night she comes to her death suddenly. We say that common honesty, common decency, require at the hands of that man, when he sees his neighbors, to tell how she came to her death." Held, an adroit and insinuating attempt to evade the provision of Rev. St. Mo. 1889, § 4219, that the failure of the accused to testify shall not be referred to by counsel.

Appeal from circuit court, Chariton county; G. C. HAMMOND, Special Judge.

W. W. Rucker, S. C. Major, and Crawley & Son, for appellant. Atty. Gen. Wood, for the State.

SHERWOOD, J.

The defendant was indicted for the murder of his wife, which was charged to have occurred on the 12th day of October, 1885. The trial took place during the latter part of October and the 1st of November, 1889, resulting in a conviction of murder in the second degree, and the punishment assessed at imprisonment in the penitentiary for the term of 20 years, and, judgment being entered accordingly, the defendant appeals to this court, and for reversal of the judgment assigns various grounds. The evidence, as will be seen by a statement of it which accompanies this opinion, was altogether circumstantial. The gist of the charge in the indictment was that the death was caused by an act of violence on the part of the defendant, which broke the cervical vertebræ. At the time of the wife's death, which occurred at night, at the dwelling-house of the defendant, no one was present except himself, his wife, babe, and a small child, 3 or 4 years old. Another child, "Frankie," somewhat older, was at the time in the Indian Territory, with its grandparents. The defendant did not go upon the stand as a witness, but it seems from the testimony of others, that so soon as his wife died he hastened to inform his neighbors, and when they came, he wished to send for a doctor, and, being told it would do no good, that his wife was dead, he said he wanted to see what was the matter with her. The defendant established an excellent character in the neighborhood in which he lived, and it appeared also that he was a kind husband and father. No quarrel or disturbance had ever been known to occur between the defendant and the deceased. They lived, as one witness, Welch, stated, who was intimately acquainted with them a year prior to the death of the deceased, peaceably and happily together, and that he never knew a cross word between them. This witness was frequently at the defendant's house during the year next preceding the death of the deceased, (say once or twice a week,) and passed by the house about every other day. Only a few days before the death of the deceased he saw her out milking, and she then had her head tied up. This witness also testified to the unmistakable and violent grief shown by the defendant while his wife lay dead in the house, and there was other testimony to the defendant's distress over his wife's death. The father-in-law of the defendant, as well as the aunt of the deceased, and others, testified to the affectionate relations which existed between the defendant and his wife. The post mortem examination of the body of the deceased did not take place until some two months after her death, and then, it seems from the testimony of several physicians of apparent skill and intelligence, the autopsy was not performed in a proper manner, nor in way calculated to elicit the truth as to the cause of her death. The defendant was arrested in the Indian Territory, whither he had removed with his father-in-law, mother-in-law, and little children, after first settling up his affairs, which occupied some 10 days before starting in a wagon to his place of destination. After his removal to his new home rumor began and spread in the neighborhood as to the cause of Mrs. Moxley's death, and finally took shape and crystalized itself in an official investigation, conducted by Dr. Philpott, the county coroner, who, assisted by Dr. McEuen, made an autopsy of the body of the deceased. The result of this post mortem was that those who performed it testified that the vertebræ of the neck were dislocated between the first and second processes, and fractured between the third and fourth vertebræ, the ends of the processes being broken off, both being done at the same time. It seems to have been the theory of the state that this fracture and dislocation had been caused by the defendant's suddenly and violently twisting or turning the neck of the deceased around, with his hands. Several physicians, it would seem, of professional prominence, testified, however, that from the testimony it was impossible for them to tell what was the cause of the death of the deceased, and it was shown in evidence that during the same summer of the death of the deceased her health was very poor. She was sick, complaining of neuralgia of the teeth and head, and she always claimed to have heart disease, and during the same summer "she had the fever and chills, flux, and several other diseases together, and the toothache." She also had smothering spells, and was sick in bed about two weeks before her death occurred, when she told Mrs. Horton that she did not think she was going to live long, that during the smothering spells her heart would seem to come up in her throat, and that it seemed like she would smother to death. This witness was asked if the deceased told her "how often those spells would come;" but on objection of the state this question was not permitted to receive an answer. At the close of the testimony certain instructions were given on behalf of the state, and also on behalf of the defendant, and certain instructions asked on behalf of the latter were refused. These instructions, given and refused, will accompany this opinion, and need not be here set out; only such as are discussed.

1. Before proceeding to the discussion of the merits of this cause disposition must first be made of a preliminary point. It is claimed on behalf of the defendant that the indictment is invalid and insufficient in law, because signed by an unauthorized person, to-wit, by the prosecuting attorney pro tem., the regular officer being present in court, though disqualified by having been employed for the defense prior to his election. Counsel for the defendant insist that as the regular official was neither sick nor absent, that the circuit court, though it had authority to appoint J. C. Wallace to represent the state, yet that...