State v. Punshon

• Decision Date: 05 November 1894
• Citation: 27 S.W. 1111,124 Mo. 448
• Parties: The State v. Punshon, Appellant
• Court: Missouri Supreme Court

27 S.W. 1111

124 Mo. 448

The State v. Punshon, Appellant

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Buchanan Criminal Court. -- Hon. Silas Woodson, Judge.

Reversed and remanded.

George P. Rowe, Vories & Vories and Huston & Parrish for appellant.

(1) The court erred in refusing to permit defendant to prove the peaceable and happy relations of defendant and his wife; what she said as to the cause of her absence from him; and her threats to kill herself; and the reason therefor, and that she was an expert in the use of firearms; and was in the habit of carrying a revolver. First. They were proper subjects to be considered by the jury as explanatory of the means and manner of her death. Second. The fact that the defendant and his wife lived happily together, was proper evidence to disprove the existence of the motive on his part to kill her. State v. Leopold, 84 Mo. 168; State v. Watkins, 9 Conn. 47; State v. Green, 35 Conn. 205. Third. The evidence being wholly circumstantial the jury were entitled to all the aid that might have been offered them by the slightest fact or circumstances tending to enlighten them on the issues tried. State v Moxley, 102 Mo. 274; Wharton's Crim. Ev. [8 Ed.] secs. 21-27; 5 Law Journal, 237; Cooper v. State, 19 Tex. 449; Reg. v. Johnson, 2 Car. & K., 354; 1 Greenleaf on Evidence [14 Ed.], sec. 102. Goins v. State, 21 N.E. 476. (2) The court was guilty of gross misconduct, and committed unpardonable error, in his speeches in the presence and hearing of the jury, when passing on the competency of evidence offered by defendant. These speeches were nothing less than an urgent appeal to the jury to disregard the evidence before them, and were calculated to prejudice the jury against the defendant. People v. Hull, 49 N.W. 288; State v. Hill, 91 Mo. 423; State v. Sivils, 105 Mo. 530; Newbury v. State, 8 S. Rep. 445; State v. Raymond, 21 A. 328; Griffin v. State, 8 S. Rep. 670; Cook v. State, 11 S.W. 444; People v. Moyer, 43 N.W. 928; Sharp v. State, 10 S.W. 228; People v. Willard, 28 P. 585; People v. Wood, 27 N.E. 365; Massie v. Commonwealth, 24 S.W. 611; Kelley v. State, 24 S.W. 295. (3) The court erred in not admitting the evidence of Batcheller as an expert in firearms, as it was desired by the defense in this case to show, not only that Punshon could not have fired the shot from his position, but from the powder marks, etc., it must have been done by the woman herself. Davis v. State, 38 Mo. 15; Wharton on Criminal Evidence, sec. 409, and notes; State v. Avery, 110 Mo. 415; Sheldon v. Booth, 50 Iowa 209; Cole v. Clark, 3 Wis. 323; State v. Cross, 68 Iowa 180; Myers v. State, 14 Texas, 35; Sullivan v. Com. 98 Pa. St. 284; Boyd v. State, 14 Lea (Tenn.) 161; Brownwell v. People, 38 Mich. 735; Eidt v. Cutter, 127 Mass. 523; Holt v. Utah, 120 U.S. 430. (4) The court erred in instructing the jury on manslaughter in the first degree, and in refusing defendant's instruction number 1, and modifying it and giving it as modified. There is no evidence whatsoever -- not an item -- upon which to base the instructions. This court said as early as the case of the State v. Starr, 38 Mo. 272, that it was wrong to mislead the jury by instructing as to an offense not warranted by the evidence, and this principle has been reiterated by the court in almost every volume of the supreme reports since then. State v. Allen, 116 Mo. 548; State v. Herrell, 97 Mo. 107; State v. Wilson, 88 Mo. 19; State v. Turlington, 102 Mo. 642.

R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.

(1) The indictment is in the usual form for murder in the first degree and is sufficient. (2) The defendant having been convicted of manslaughter in the first degree can not complain of the instruction on murder in the second degree. (3) The remarks of the court complained of by appellant could not have prejudiced defendant and hence should not reverse the judgment. (4) The court did not commit error in refusing to permit defendant's counsel to comment on the note found on the person of the deceased and upon the fact that the state had failed to introduce it. (5) The verdict is supported by the weight of the evidence and should not be disturbed.

OPINION

Burgess, J.

At the March term, 1894, of the criminal court of Buchanan county, the defendant was indicted for murder of the first degree for having killed and murdered Jennie Punshon, his wife, on the fifth day of January, 1894. At the same term, defendant was tried, convicted of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for a term of twenty years. The case is in this court on his appeal.

The record discloses the following state of facts: At the time of the homicide defendant and deceased were husband and wife, but for sometime prior thereto they had not lived together, the defendant staying with his mother and the deceased with her mother; that on the morning of January 5, 1894, the defendant met the deceased on the street in the city of St. Joseph and they went to the residence of his mother, Mrs. Punshon; that when they arrived there he took her upstairs and locked her up in a room; that he took the key and went down stairs, where he met one Miss Cooper, to whom he said: "Jennie is upstairs; come let's go up there." They then went upstairs, when defendant unlocked the door and they entered the room, in which the deceased was sitting on a chair with her hat on, when she remarked to Miss Cooper, "I did not want to come here." Defendant accused the deceased of "telling their affairs to other people," and, being denied by her, he took hold of Miss Cooper's arm and called her a liar. Miss Cooper then slapped him in the face, and he, in return, slapped her in the face. Shortly after this occurrence, deceased left and went to the house of her mother, some ten or twelve blocks away. Between 5 and 6 o'clock of the same evening defendant borrowed a pistol from Lon Myers of 32 caliber and containing five chambers.

At about half past 6 Mrs. Windish, the mother of the deceased, and Fred., Gardy and John Windish were in the kitchen at the Windish home, when the defendant rapped at the door and was admitted by his wife; a single-barrel shotgun was standing near the door; when he came in, Mrs. Windish, the mother, stepped over and picked up the shotgun; when defendant said: "Oh, I guess not," drew a revolver from his pocket and said: "I've got six loads here, enough for all; I will just kill us all;" said he wanted to talk to his wife, and when her mother remonstrated and started toward the front door, defendant said: "Do not go, I've got the front door guarded," etc. * * * "I will kill her (Jennie)," and thereupon drew his revolver upon her. In the meantime Freddie, the brother, was begging the defendant not to shoot. Defendant went into the third room, saying, "Here, Freddie, I want you to witness this." Pointing his revolver at his wife, he said: "Are you ready to die?" The brother again implored him not to shoot, but to leave; that Jennie was sick, and to leave her that night anyway; when the defendant said to his wife: "You lie down here where it is warm." "Freddie," he said, "if you will open the door I will go;" and when the door was open he grabbed up his wife and carried her from the house into the street, saying he had a carriage on the corner, and for none of them to follow him. In the kitchen defendant said: "I made that arrangement to day; I was to kill her and then kill myself."

Defendant and his wife were next seen at Beeninger & Co.'s saloon, nine blocks from the Windish residence, where the defendant went in and requested to use the telephone in order to call a carriage. The deceased was bareheaded; seemed to be in distress; was crying. They waited there until a carriage arrived. To one of the bartenders of the saloon, defendant said that he had taken his wife from his mother-in-law's house; that the people at the house had fired two shots at them when they were leaving; that they had staid down at Twenty-second and Messanie for about three-quarters of an hour; that the whole neighborhood was out scouring for them. He showed the bartender a white apron he had under his coat; said he had made his wife take it off so that the people could not see them in the dark. When the hack arrived, it was in charge of T. H. Donnahue; to him the defendant said: "I telephoned for Jim Donnahue; I didn't telephone for you; this is particular; I do not want you to say anything about it; I was over at my mother-in-law's and raised hell over there."

The defendant and his wife got into the carriage; the defendant instructed the driver to drive to Eleventh, below Doniphan avenue. After the carriage had proceeded about eight blocks to Fifteenth street, below Renick, the driver heard a pistol shot, stopped his team, got down and opened the carriage door, found the deceased sitting on the right on the back seat, the defendant on the left, the deceased's head leaning against the cushion and her face bloody, a bloody pistol lying on her bosom, the defendant's hands bloody. He sat by her side quite composed. Heard him say, "Jennie, Jennie, speak to me." After the door was opened, the defendant said to the driver, Donnahue, that his wife had shot herself, and to drive to a doctor's or get a doctor. The driver took his team and started south again. When they arrived near Jester's brewery the driver hailed Policeman McCoy, and related to him the shooting. When McCoy opened the carriage door defendant then had his arm around the deceased and had her limbs pulled up across his knee, and the pistol lying in her lap with the handle or grip toward the defendant. Defendant's right hand was...