27 S.W. 1111 (Mo. 1894), State v. Punshon

Citation:27 S.W. 1111, 124 Mo. 448
Opinion Judge:Burgess, J.
Party Name:The State v. Punshon, Appellant
Attorney:George P. Rowe, Vories & Vories and Huston & Parrish for appellant. R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.
Case Date:November 05, 1894
Court:Supreme Court of Missouri
 
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Page 1111

27 S.W. 1111 (Mo. 1894)

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

[124 Mo. 451] 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...

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