State v. Kauffman

• Citation: 46 S.W.2d 843,329 Mo. 813
• Decision Date: 17 February 1932
• Docket Number: 31703
• Parties: The State v. Paul H. Kauffman, Appellant
• Court: Missouri Supreme Court

46 S.W.2d 843

329 Mo. 813

The State v. Paul H. Kauffman, Appellant

No. 31703

Supreme Court of Missouri

February 17, 1932

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed and remanded.

S R. Stone and J. B. McFarland for appellant.

(1) The court erred in overruling the defendant's motion for a continuance. State v. Maddox, 117 Mo. 667; State v. Mosley, 22 S.W.2d 748; State v. McGuire, 69 Mo. 205; State v. Woods, 68 Mo. 444; State v Lewis, 74 Mo. 22; State v. Lewis, 9 Mo.App. 321; State v. Lambert, 262 S.W. 58; State v. Wad, 270 S.W. 298. (2) The evidence did not substantiate and was insufficient to sustain a verdict of first degree murder. The verdict is contrary to the evidence and against the weight of the evidence in that the preponderance of all the evidence shows that the defendant is not guilty of the crime of first degree murder. (3) The court erred in giving instruction numbered 3, as to the definition of the word "deliberation." (4) The court erred in failing to instruct the jury upon the subject of the offense and crime of murder in the second degree, for the reason that there was evidence from which the jury could have found and believed that the homicide in question was committed without deliberation, but in the perpetration of an assault with intention to do other great bodily harm, as provided by Secs. 52 to 62, R. S. 1919. State v. Burrell, 208 Mo. 672, 252 S.W. 709; State v. Fine, 23 S.W.2d 9; State v. Jackson, 267 S.W. 755; State v. Robbinette, 279 S.W. 700. (5) The court erred in failing to instruct the jury upon the subject of the offense and crime of manslaughter, for the reason there was evidence from which the jury would have been authorized in finding that the homicide in question was unintentionally committed in the commission of a criminal act; that is, an assault not amounting to a felony, nor naturally tending to cause death or great bodily harm, and if the jury so found, they would not have been authorized or justified in finding this defendant guilty of a higher degree of felonious homicide than manslaughter. (6) The court erred in giving to the jury Instruction 2, on the subject of murder in the first degree which set out in substance that if the jury find and believe from the evidence that the defendant feloniously, wilfully, deliberately, premeditatedly, purposely and with malice aforethought, did make an assault upon one Avis Woolery and did clasp and choke the neck and throat of the said Avis Woolery with his hands, and by other means, if any, did then and there and thus and thereby, etc., for the reason that there was no evidence to sustain that part of the instruction that the defendant did clasp and choke the neck and throat of Avis Woolery with his hands. State v. Ross, 267 S.W. 853; State v. Vaughan, 141 Mo. 514; State v. Clancy, 225 Mo. 654.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) An application for a continuance is addressed to the sound discretion of the court, with the exercise of which the appellate court will not interfere, unless it clearly appears from all the facts and circumstances that such discretion has been abused to the prejudice of defendant. Sec. 3653, R. S. 1929; State v. Salts, 263 Mo. 304; State v. Taylor, 8 S.W.2d 29; State v. Messino, 30 S.W.2d 759; State v. Schooley, 14 S.W.2d 631; State v. Taylor, 8 S.W.2d 29. Prior continuances weigh against the granting of further continuances. State v. Lynn, 169 Mo. 664; State v. Salts, 263 Mo. 304. We are unable to discover any abuse of discretion by the court in overruling the second application. Defendant's application on account of absence or disability or lack of preparation of counsel is properly denied. State v. Dusenberry, 112 Mo. 277; State v. Hedgepeth, 125 Mo. 14; State v. Inks, 135 Mo. 678; State v. Craft, 164 Mo. 631; State v. Lewis, 181 Mo. 235; State v. Lewkowitz, 265 Mo. 613. (2) The record is replete with substantial evidence, both circumstantial and direct, to support the jury's verdict. The corpus delicti is conclusively shown and defendant's guilty agency in the perpetration of the crime overwhelmingly established. The cool, dispassionate evidence indicates and shows that defendant deliberately lured the deceased to Swope Park where he criminally ravished her, during the perpetration of which her death was caused by strangulation and other physical torture. It was wholly unnecessary for the evidence to show premeditation or deliberation to take the life of deceased. The fact that defendant states that he did not realize that deceased was slowly choking to death cannot relieve him of the crime of murder in the first degree, as charged in the indictment. Homicide committed in the perpetration of or attempt to perpetrate any felony designated in statute is murder without any showing of deliberation or premeditation. Sec. 3982, R. S. 1929; State v. Hart, 292 Mo. 74; State v. Messino, 30 S.W.2d 750; State v. Nasello, 30 S.W.2d 132; State v. Mangercino, 30 S.W.2d 763; State v. Daly, 210 Mo. 664; State v. Barrington, 198 Mo. 23; State v. Yeager, 12 S.W.2d 30. Corpus delicti is proven by proof of death of deceased and that death was caused by some criminal agency. State v. Henke, 313 Mo. 615; State v. Williams, 309 Mo. 155. The corpus delicti can be shown by circumstantial evidence as well as direct. State v. Poor, 286 Mo. 644; State v. Bass, 251 Mo. 107; State v. Porter, 276 Mo. 387. (3) The trial court committed no error in failing to instruct the jury on the crime of murder in the second degree. There was no evidence in the case of murder in the second degree. The homicide was committed in the perpetration of one of the felonies, to-wit, rape, named in Sec. 3982, R. S. 1929. All homicides committed during the perpetration of any of the felonies mentioned in Section 3982, are murders in the first degree. State v. Hayes, 262 S.W. 1034; State v. Yeager, 12 S.W.2d 30; State v. Hart, 292 Mo. 74; State v. Long, 253 S.W. 729. (4) There is no error in the court's instruction numbered two. It is a stock instruction on murder in the first degree committed deliberately. It closely adheres to the charge contained in the indictment and the evidence adduced at the trial. State v. Furgerson, 162 Mo. 677; State v. Fairland, 121 Mo. 146; State v. Grant, 152 Mo. 70; State v. Barrington, 198 Mo. 102; State v. Spaugh, 200 Mo. 606. (5) There was ample evidence from which the jury could infer that defendant "did clasp and choke the throat and neck of said Avis Woolery with his hands, and by other means." Defendant's confession reveals that he strangled and choked deceased to death while he was ravishing her by means of holding his arms on her throat or from his acts in tying her stockings tightly around her neck. Certainly, the tying of the stockings around her neck required the use of the hands. It is hypercritical to contend that all the circumstances attending the death of deceased do not show that she was strangled and choked to death by the defendant as charged in the indictment. There is no material variance between indictment and evidence. (6) There is no error in the court's instruction numbered three. It is simply definitory of the methods and means whereby the crime of murder in the first degree may be committed. The definitions of the various elements of a deliberate killing are correct and have often been approved by this court. State v. Paulsgrove, 203 Mo. 199; State v. Bobbitt, 215 Mo. 33. The instruction contains the first degree murder statute word for word. Defendant attacks it on the ground that there was no evidence that the murder was committed "by means of poison, (or) by lying in wait, in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem." This contention is true with two exceptions, to-wit, there was ample evidence to support the theory of a deliberate killing or the theory of a homicide committed during the perpetration of a rape. Section 3982, defines a killing that occurred during the perpetration of a rape as murder in the first degree. Proof that the killing so occurred is admissible under an indictment in the usual and common form. State v. Nasello, 30 S.W.2d 136. A case may be submitted to the jury on as many theories as the evidence justifies. State v. Robinett, 279 S.W. 698. The case was submitted on two theories, both amply supported by the evidence, a straight deliberate killing and a homicide in the perpetration of a rape. Inclusion, therefore, of the statute as to the homicide having been committed in the perpetration of a rape could not be said to be prejudicial to defendant's rights. (7) There is no error in the court's instruction on defendant's defense of insanity. It is a correct declaration of law on that subject. Instructions quite similar have been approved by this court. State v. Paulsgrove, 203 Mo. 200; State v. Riddle, 245 Mo. 458; State v. Soper, 148 Mo. 237; State v. Pagels, 92 Mo. 300; State v. Holloway, 156 Mo. 228; State v. Weagley, 286 Mo. 688.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Defendant, Paul H. Kauffman, was convicted in the Circuit Court of Jackson County of murder in the first degree for the killing of Avis Woolery. The jury assessed his punishment at death. After an unavailing motion for new trial he was sentenced in accordance with the verdict and has appealed.

The evidence offered by the State tended to show the following Avis Woolery, the deceased, was seventeen years of age at the time of her death, August 17, 1930. She had resided with her mother and step-father at Webb City, Jasper County, Missouri. The defendant had been born and reared in Pennsylvania. At the outbreak of the late war he, then seventeen or...