State v. Bass

• Citation: 157 S.W. 782,251 Mo. 107
• Parties: THE STATE v. A. J. BASS, Appellant
• Decision Date: 02 June 1913
• Court: United States State Supreme Court of Missouri

157 S.W. 782

251 Mo. 107

THE STATE v. A. J. BASS, Appellant

Supreme Court of Missouri

June 2, 1913

Appeal from Greene Criminal Court. -- Hon. Alfred Page, Judge.

Reversed.

Hamlin & Seawell for appellant.

There is absolutely no substantial evidence upon which to base the judgment of conviction in this case. When the evidence of the State is considered calmly and with impartiality and without passion or prejudice, it simply discloses that appellant's wife was found in the remains of a burning building where she, her husband and children, had lived, and that after several examinations shot were found in the heart and lungs cavity and a wound through her heart; that her body was in such a condition the physicians on the part of the State were unable to give substantial evidence of the cause of death. The condition in which they found her body was such that they were unable to state whether she had received wounds upon other parts of her body, although one of the witnesses for the State discovered an additional wound in the back of a large size near her hips. Whether she came to her death on account of these wounds or by means of suffocation was a matter of mere speculation and conjecture on the part of the State. The case is based wholly upon circumstantial evidence. If there had not been a large number of gun shells in the house, which all the evidence shows exploded at some time during the fire, still the evidence on the part of the State as to the cause of death would be insufficient. The law is well settled in this State that the facts and circumstances must form a complete chain pointing to the guilt of a defendant and that they must be consistent with his guilt and inconsistent with every reasonable hypothesis except that of guilt. If the testimony of appellant is disregarded altogether, are the facts and circumstances as to the cause of death inconsistent with his innocence? The autopsy disclosed certain conditions which conclusively establish the fact that her death was not caused by a gun shot wound as alleged in the information. The appellant however, is not charged with the duty of explaining the cause of death, but his evidence overwhelmingly establishes that suffocation was the cause. In place of convicting appellant upon the charge in the information, he was convicted of failing to rescue his wife from the fire. If the shot had been found in any other portion of her body the prejudice would not have been so strong, and although the other parts were in such a condition that they would not have disclosed other shot by the shells and although the State's witness testified that he discovered a large wound in the lower part of her back which was overlooked by the physicians, still the minds of the jury were centered upon a shot in the heart. It is for this court to say whether under such circumstances all rules and precedence must be suspended and the appellant be deprived of his liberty for life for alleged crime he did not commit. This court has repeatedly and boldly declared the law applicable to such cases depending upon circumstantial evidence and has sheltered the innocent from oppression caused by the passion and prejudice of a jury. State v Gorden, 199 Mo. 561; State v. Crabtree, 170 Mo 642; State v. Nesenhener, 164 Mo. 461; State v. Scott, 177 Mo. 673; State v. Mahan, 138 Mo. 112; State v. King, 174 Mo. 662; State v. Marshall, 47 Mo. 378.

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

(1) There was ample substantial evidence to support the verdict. Appellant states that he jumped from the upstairs window and told his wife to follow him, knowing at the time of her pregnant condition, and says he intended to take the hack to the window and rescue her. His only excuse for not taking the hack to the window was that his fall from the window had stunned him, yet he wants credit for doing the rational thing, immediately upon the regaining his senses, in going to a neighbor's and calling for help. He knew enough to call for help. Then he knew his wife was upstairs in the burning building, with no means of escape, and that she would perish without his assistance. When the witnesses came, in response to his call for help, he inquired for his wife. The jury could not reconcile his contradictory statements -- that he left his wife in the burning building, and yet, inquired where she was. This court will not convert itself into a trier of facts and undertake to find a result different from that of the jury where there is ample evidence to support the verdict. 4 Elliott on Evidence, sec. 2723; People v. Arnold, 43 Mich. 305; State v. Alexander, 184 Mo. 266; State v. McCullough, 171 Mo. 574; State v. Sayman, 103 Mo.App. 141; State v. Thornhill, 177 Mo. 691; State v. McKenzie, 177 Mo. 699; State v. Nave, 185 Mo. 125; State v. Tetrick, 199 Mo. 100; State v. Matthews, 202 Mo. 148; State v. Smith, 109 Mo. 706; State v. Williams, 199 Mo. 137; State v. Williams, 186 Mo. 128; Henshaw v. State, 147 Ind. 362. This court will determine whether or not there is sufficient evidence to support the judgment. State v. Gordon, 199 Mo. 561; State v. Crabtree, 170 Mo. 642. (2) Appellant complains that the court erred in permitting witnesses to testify as to the effect produced by the explosion of shells, for the reason that said evidence was not based upon similar circumstances and conditions as existed at the time of the fire, and permitting evidence as to the effect of fire upon coal oil contained in cans, or upon empty cans, under conditions not based upon similar facts. The tests with reference to the explosion of cartridges, similar to those appellant had in his house, and of the result of a shot from a shotgun like appellant's, was introduced by both the State and appellant. The State contended, through tests and expert witnesses, that when shells exploded the shot therein would have no force, and would not enter even the body of a human being; that the shell must be confined in the barrel of a gun in order to have any force, and that oil in a can would explode. Appellant introduced the evidence of witnesses who had performed the test, under circumstances as nearly similar as ordinary human ingenuity could devise, and by other witnesses, that shot, when exploded from shells, went with such force as to penetrate the flesh of a beef heart, and also, that an empty coal oil can would go through fire without being marred or demolished; also, that a shotgun similar to appellant's fired at a person, across a room, the size of the one in appellant's house, would bore a hole through the body, or tear away a portion of same; also, that a shot from said gun, fired at that distance, would not lodge in the body of a human being. These tests were competent and were questions for the jury. It is true, there was no evidence from the manufacturer of the shells used in experimenting, tending to show that they were the same kind as appellant had in his house at the time of the fire, but the trial court must be left to determine absolutely, and without review, the required qualifications of a witness. Wigmore on Ev., sec. 561; State v. Green, 229 Mo. 642.

WALKER J. Faris and Brown, JJ., in result.

OPINION

In Banc.

WALKER, J. -- The prosecuting attorney of Greene county at the March term, 1911, of the criminal court of said county, filed an information charging the defendant with murder in the first degree in having shot his wife to death with a shotgun at their home on the morning of January 24, 1911. Upon a trial defendant was convicted of murder in the first degree and his punishment assessed at imprisonment in the penitentiary for life.

The defendant with his family, consisting of his wife and two small children, the elder under the age of five years, occupied a frame dwelling on the county road near the town of Bassville, Greene county. The dwelling consisted of three rooms downstairs and one partitioned off upstairs, two other upstairs rooms being simply floored but otherwise unfinished and separated from each other only by open studding. A brick flue ran up through the center of the building and a narrow inclosed stairway from the first to the second story ran alongside the flue. Defendant was very poor, of humble station, ignorant, and of a low order of mentality. His vocation consisted in doing day's labor at whatever he could turn his hand to. Like many of his class found in certain country districts he was addicted to hunting such small game as rabbits and partridges, and in consequence of this habit was possessed of a shotgun.

About four or five o'clock of the morning of January 24, 1911 persons living in the same neighborhood as defendant were aroused by his hallooing, as he ran up and down the road, that his house was on fire, and that everything was burning up; the neighbors responded to his call and upon arriving at the scene found the upper part of the building in flames to such an extent that it was impossible to get upstairs. Several persons went into the lower rooms and carried out different articles of household furniture. It appears that the defendant, after having aroused the neighbors, ran back to his home where those arriving found him apparently in great distress, standing near or leaning on a hack or old vehicle in which were his little children covered up with bedclothes, the shotgun also being in the hack; upon being asked where his wife was, defendant said in a hysterical manner he knew, or he was sure, she was in the burning building; after the flue fell such portions of her body as had not been entirely consumed by the fire were seen lying on the ruins of the flue. Her limbs were almost entirely burned off, as well as her head, the trunk of her body being very...