The State v. Aitken

• Decision Date: 27 February 1912
• Citation: 144 S.W. 499,240 Mo. 254
• Parties: THE STATE v. MARTHA P. AITKEN and CHARLES AITKEN, Appellants
• Court: Missouri Supreme Court

144 S.W. 499

240 Mo. 254

THE STATE v. MARTHA P. AITKEN and CHARLES AITKEN, Appellants

Supreme Court of Missouri, Second Division

February 27, 1912

Appeal from Jefferson Circuit Court. -- Hon. E. M. Dearing, Judge.

Affirmed.

John T Fitzsimmons for appellants.

(1) The evidence wholly fails to connect the defendants with the act of abortion, if any were committed, resulting in the death of Lilby Anna Aitken. There is an entire absence of those facts which, in cases of this kind, usually establish by circumstantial evidence the guilt of the accused. On the contrary, the State's case abounds in facts which circumstantially point to the innocence and the consciousness of innocence of the defendants. In the light of all past cases wherein the court has passed on the question of the sufficiency of the circumstantial evidence to sustain the verdict, the Supreme Court should grant relief to these defendants. Even those cases wherein the point was ruled against the defendants would alone be sufficient authorities in behalf of the defendants in this case. The fact that there are two defendants jointly convicted makes the circumstances against them much weaker in probative value. State v Burgdorf, 53 Mo. 67; State v. Mansfield, 41 Mo 470; State v. Jaeger, 66 Mo. 173; State v. Castor, 93 Mo. 253; State v. Primm, 98 Mo. 368; State v. Packwood, 26 Mo. 340; State v. Daubert, 42 Mo. 239; State v. Brosius, 39 Mo. 534; State v. Musick, 71 Mo. 401; State v. Warner, 74 Mo. 83; State v. Hammond, 77 Mo. 159; State v. Lowe, 93 Mo. 574; State v. McNamara, 100 Mo. 100; State v. Edmondson, 131 Mo. 348; State v. Finley, 193 Mo. 202; State v. Gow, 235 Mo. 307; State v. Faulkner, 175 Mo. 546. State v. Scott, 177 Mo. 665; State v. Heusack, 189 Mo. 295; State v. Francis, 199 Mo. 694; State v. Morney, 196 Mo. 43; Comer v. Railroad, 181 Mo. 397; State v. Casto, 231 Mo. 398. There is no evidence, direct or circumstantial, indicating that the defendants or either of them had in their possession or used upon Lilby Anna Aitken "any instrument or hard substance," as predicated in the main instruction. Instructions must be based upon evidence and not upon mere conjecture. Marr v. Bunker, 92 Mo. 651; McAtee v. Valandingham, 75 Mo.App. 45; Moore v. Streigel, 50 Mo.App. 308; Holden v. Railroad, 177 Mo. 456; State v. Bonner, 178 Mo. 424; State v. Hicks, 178 Mo. 433; Kennedy v. Railroad, 128 Mo.App. 297; Felver v. Railroad, 216 Mo. 210. (3) The instruction given by the court on circumstantial evidence is an abstract statement of the law as far as it goes. Instructions of this kind are always dangerous unless full and complete in their statement of the law. The court erred more particularly in giving its instruction on circumstantial evidence because it omitted reference to the absence of motive for the crime charged for which the defendants asked by their refused instruction on circumstantial evidence. State v. Bauerle, 145 Mo. 1; State v. Foley, 144 Mo. 600; State v. Faulkner, 175 Mo. 546; State v. Scott, 177 Mo. 665; Comer v. Railroad, 181 Mo. 397; State v. Heusack, 189 Mo. 295; State v. Francis, 199 Mo. 694; State v. Morney, 196 Mo. 43.

Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.

(1) The instructions, numbered 1, 2, 3 and 4, given on the part of the State, are full, fair and clearly present the law of the case to the jury. The court very properly refused instruction number 1, requested by appellants, as State instruction number 2 covered the same phase of the case. State v. Brooks, 220 Mo. 74. (2) Appellants assign error in their motion for a new trial in that the court failed to instruct on all the law of the case. Appellants failed to object and save an exception to the failure of the court to instruct on all the law of the case, and, therefore, that question is not before this court for review. State v. Tucker, 232 Mo. 15. (3) There was an abundance of substantial evidence to support the verdict of guilty as returned by the jury in this cause. The court very properly overruled appellants' demurrer offered at the close of the State's testimony. State v. Scott, 214 Mo. 261; State v. Espenschied, 212 Mo. 223. (4) State's instruction number 1 is a substantial copy of the instruction as approved in State v. Fitzporter, 93 Mo. 393, and makes plain to the jury that they might convict or acquit either or both the appellants as they thought justified under the evidence. In said instruction this language is used: "You will find the defendants, or either of them, guilty of manslaughter in the second degree." That part of the instruction which reads "and will assess the punishment of each of them at imprisonment in the penitentiary for a term of not less than three nor more than five years," could only have led the jury to believe that they were to assess such punishment against each defendant, in case the jury found each defendant guilty. Any other construction placed upon said section would be an unreasonable construction, and entirely ignoring that part of the instruction above quoted, which plainly told the jury that they might convict one of the defendants and acquit the other, or convict both, or acquit both, as they saw fit. The jury returned separate verdicts in this cause, thereby disclosing that they considered the guilt of each appellant separately.

FERRISS, P. J. Kennish and Brown, JJ., concur.

OPINION

FERRISS, P. J.

Appeal of defendants, convicted in the circuit court of Jefferson county of manslaughter by producing an abortion upon Lilby Anna Aitken, wife of defendant Charles Aitken, and sentenced to three years in the penitentiary.

The testimony for the State tended to prove the following facts:

Lilby Anna Blake was eighteen years old on April 18, 1911, and married Charles Aitken, defendant, on May 7, 1911. The Blake and Aitken families lived in the town of DeSoto, and for about one month prior to her said marriage Lilby Anna Blake had been living at the house of defendant Martha P. Aitken and her son, Charles. After the marriage, Charles Aitken and his wife lived with Mrs. Blake, mother of deceased. Soon after the marriage deceased told her mother, sister and some neighbor friends that she was then pregnant, and had been so for about two weeks prior to her marriage.

On Monday, prior to Sunday, June 25, 1911, the date of Mrs. Aitken's death, defendant Charles Aitken left the Blake home, early in the morning. Some time during that morning he met a sister of deceased on the streets in DeSoto, and sent word by her to his wife to come up to his mother's house, which she did that afternoon. This departure by Aitken and his wife appears to have been without any prearrangement. The wife took none of her belongings from her mother's house. A few days before their leaving Mrs. Blake's, defendant Aitken brought his wife some "tansy tea" which had been prepared and sent by his mother for the purpose, as she afterwards claimed, of relieving a menstrual trouble from which, she said, deceased was reported by the husband to be suffering. He also took some medicine in a bottle to his wife at about the same time. From the time of the departure of Aitken and his wife, on Monday, neither Mrs. Blake nor any of her family heard anything from her daughter until the following Sunday afternoon, at about two o'clock, when Aitken came to Mrs. Blake's, and said: "You had better come and see her. She is awful bad. She is in bed, and is awful bad." When Mrs. Blake reached the Aitken home she found her daughter in a rear room, the doors and windows of which were closed. She was then unconscious, and died within an hour. Defendant Mrs. Aitken told Mrs. Blake that she had given deceased some tansy tea, some ginger tea and a morphine tablet during the night. Mrs. Blake noticed some blood spots on the bed where deceased was lying.

On Sunday morning, at about one o'clock, Dr. Donnell, a practicing physician, was called by the husband to see deceased. The doctor found her with a pulse of 114, with a subnormal temperature, unconscious, and in a collapsed condition, with death upon her. Defendants told Dr. Donnell that she had been sick for several days, and had been unconscious since eight o'clock Saturday night. On this phase of the case Dr. Donnell testified as follows:

"I remarked that she seemed to be rather stupid, and Mrs. Aitken said, 'I gave her an eighth of a grain of morphine this evening,' and I asked her when, and she said, about eight o'clock, and I said, 'What for?' and she says 'She was always suffering a great deal of pain with her monthly period.' She says, 'She came up here last month, or Charley came up, and talked to me about it, and says, "Mother, for God's sake, do something for Anna, as she is having such pain." And I didn't know what to do, and I made him a bucket of tansy tea and sent it down to her, and she got up and came up here on Tuesday, and was feeling bad, and so we gave her some tansy tea and some ginger tea, and, in fact, I did everything that I knew to relieve her.' And I asked her if any flow had come on, and she said, 'No, none at all.' And I proceeded to examine her, and reached down and felt of her abdomen, and it was very sore to the touch, and she would cry out at the very touch of my hand; and I noticed when I first pulled the sheet down that there was some blood on it, and, from all the appearances of her abdomen, she had peritonitis, which is an inflammation of the lining of the abdominal cavity and covering of the bowels. Mrs. Aitken says: 'I have been using hot applications over the stomach, as I thought it was some ovarian trouble.' She said she expected there was some ovarian trouble there; and I turned the sheet back, and noticed several smears of blood where she was...