State v. Palmer

• Decision Date: 12 March 1901
• Parties: STATE v. PALMER.
• Court: Missouri Supreme Court

61 S.W. 651

161 Mo. 152

STATE v. PALMER.

Supreme Court of Missouri, Division No. 2.

March 12, 1901.

HOMICIDE — DEFENSE OF IMBECILITY — INSTRUCTIONS — OMISSIONS — OBJECTIONS ON APPEAL — EVIDENCE OF EXPERTS — VERDICT — IMPEACHMENT BY JURORS — REVIEW — REFUSAL OF CONTINUANCE — OMISSION FROM BILL OF EXCEPTIONS.

1. Denial of an application for a continuance cannot be considered if not embodied in the bill of exceptions, notwithstanding the record recites that on the denial defendant excepted.

2. In a prosecution for murder, defended on the ground of imbecility, the jury were properly instructed that mere weakness of intellect will not shield one who commits a crime, and that, though defendant was mentally deficient in some degree, yet they should convict him unless they were reasonably satisfied that at the time of committing the act his mental faculties were so weak that he was unconscious that it was wrong, and had not the mental capacity to choose between right and wrong.

3. They were also properly instructed that every man is presumed to be sane till the contrary is proved, and, where mental imbecility is interposed as a defense, defendant must prove it to their reasonable satisfaction, and that it must be proved that at the time of committing the act defendant labored under such mental defects as not to know the nature of the act he was doing, or, if he did know it, that he did not know that he was doing wrong.

4. An objection to a failure to instruct on all questions in the case cannot be raised for the first time on appeal.

5. In a prosecution for murder, defended on the ground of defendant's imbecility, the burden is not on the state to show, as in the case of a proved chronic state of insanity, a lucid interval at the time of the killing.

6. A hypothetical question based on a statement of facts of which there was no evidence in the case should have been excluded.

7. An expert testifying for the defense, never having had an opportunity to examine the accused, cannot express his opinion whether, at the time of the homicide, he was capable of deliberating like a sane person.

8. The defense, having been allowed to ask wholly incompetent questions of experts as to the condition of defendant's mind on the day of the homicide, cannot complain of error in permitting the state to pursue a similar course.

9. The rule that jurors will not be allowed to impeach their verdict by statements or affidavits is inflexible.

Appeal from circuit court, Callaway county; John A. Hockaday, Judge.

Edward L. Palmer was convicted of murder, and he appeals. Affirmed.

E. L. McCall, for appellant. Edward C. Crow, Atty. Gen., for the State.

SHERWOOD, P. J.

This prosecution was instituted in Callaway county, because defendant, 20 years old, on the 23d day of April, 1899, at his mother's house in Fulton, shot and killed Thomas Gannaway, aged about 19 years, with a revolver. There were two mortal wounds inflicted by the shooting, — one on the right side of the windpipe, the neck being powder burned by the discharge, the other on the left shoulder blade, the padding of the coat being set afire; and Dr. Gordon, who testified to these facts, stated that the pistol that made the wounds could only have been a few feet away at the time of their making. An indictment for murder in the first degree was returned by the grand jury on the 10th of May next following the homicidal act, and on trial defendant was found guilty of murder in the second degree, punishment being assessed at 10 years in the penitentiary; hence this appeal.

The first question to be determined is the one relative to the denial of defendant's application for a continuance, which was sworn to by defendant. The denial of this application cannot be considered, because not embodied in the bill of exceptions (State v. Griffin, 98 Mo. 672, 12 S. W. 358, and subsequent cases); and although the record recites that, on the denial of his application, defendant excepted, yet this recital cuts no figure, because matters of exception, such as this, can only be preserved in a bill of exceptions, the sole repository known to the law for the preservation of such matters (State v. Wear, 145 Mo., loc. cit. 204, 205, 46 S. W. 1099, and cases cited). The recital by the clerk in the record has no such preservative power. Id.

This brings into view the merits of the cause. The plea of not guilty was entered in usual form, and in its support testimony was introduced tending to show such a degree of imbecility of mind on the part of defendant as rendered him irresponsible for the act done, and there was testimony of a contrary effect, and on this question of imbecility of the sort mentioned the decision of this cause hinges and turns. Testimony on this subject was introduced both pro and con.

Charles Mortz testified as follows: "I reside in Fulton. I am twenty-two years old. I knew Thomas Gannaway in his lifetime. Knew him for a long time. I remember walking down to Mrs. Palmer's house on the 23d day of April, 1899, with Perley Blunt, Tom Gannaway, and True Byers. It was about one o'clock or a little after. We boys were uptown together, and Tom Gannaway said, `Let's go down this way.' He wanted to go to see his girl, he said, and I said I would go with him; he said he wanted to introduce her to me. All of us boys went down there together, and me and Gannaway stopped in, and the other boys went on, and we told them to come on and go in, but they said, `No; they would go on.' We stopped there then, and Gannaway went up to the door, and rang the bell, and nobody answered, and he rang it again, and nobody answered. Then he said to me, `Come on;' and he opened the door, and we went in together. When we went in I saw ____ Pierson, ____ Hudgens, and Ed. Palmer there in the room. We went in the west room, — the front room. The house is right on the sidewalk. Gannaway went in first, and said, `Good evening;' but I don't know whether anybody said `Good evening' to him or not. The defendant, just after Mortz and Gannaway came into the room, went towards a cupboard that stood by the door leading into the dining room. Gannaway then said, `I want to see Mrs. Palmer;' and the boys were sitting there, and they had their heads down, and Gannaway started to the door, and Ed. Palmer got up and said, `I will see that you don't go in there.' I was standing, and turned around, and touched Gannaway on the arm, and said, `We are not welcome, Crup; let's us go out.' When I touched him on the arm, and said, `We are not welcome,' he said, `Wait a minute;' and I turned and went out. I heard two shots fired. I was about in the middle of the street when the first one was fired. I didn't turn back. I was not very far when the second shot was fired. I did not see Gannaway any more until after he was shot. He was then in the mayor's office."

E. G. Pierson testified: "I knew Tom Gannaway during his life. Had known him some time before he was killed. I remember seeing him on the 23d day of April, 1899. I saw him that time about nine o'clock in the morning, and was with him until about noon. We ate dinner together. After dinner we went down the street, and I left him at the corner near Carter's saloon. I went to Mrs. Palmer's. When I got there I found Cal. Hudgens and Ed. Palmer there. It was only a few minutes until Tom Gannaway came in. I heard him knock at the door. He knocked three times, I think, and some one said, `Come in,' as he stepped in the room. Charlie Mortz was with him. Gannaway asked where Mrs. Palmer was, and some one said she was in the kitchen, and he said, `I want to see her a minute or two.' Ed. Palmer says, `I will see whether you see her or not,' and as he said that he got up, and went to the press which was near the middle door, and opened it, and I thought he took something out of it. I cannot say what he did with it. Gannaway then said, `Why didn't you ask me like a gentleman not to go in there, and I would not have started?' and then Palmer pulled out a pistol and shot him. Palmer was standing in front of the middle door, and Gannaway was standing a little in front of him. They were facing each other. When the first shot was fired, Gannaway grabbed me around the neck, and Palmer kept on shooting him, and I came up and held him, and Gannaway grabbed hold of me, and swung me around in front of him, and I swung back, and Palmer shot again. I think the second shot hit him, and the third shot missed. Then Gannaway let go of me and got away. I do not know what Palmer did after he fired the shots. I went out where Gannaway was in the street as soon as I could. He was lying in front of Dr. Dories' house, on the ground. He was not dead when I got there, but didn't live more than a minute and a half. I heard him say, `Ed. Palmer shot me, and he shot me for nothing.' When I first saw Gannaway after he was shot the blood was coming from his mouth, and there was some on his shirt collar, and his coat was still afire on the back." Another witness also testified that some one said, "Come in," as Tom Gannaway knocked at the door.

M. S. Roberts testified as follows: "On the 23d day of last April I was living on Fourth street, east of Market street, in Fulton. I knew Mrs. Palmer, the mother of defendant, at the time. She was living on the south side of Fourth street, right opposite the house I was living in. I was at home on that day. About one o'clock, or a few minutes past one, while I was in the yard, I heard three shots fired pretty close together. I went in the house, through the school room, and then through the hall to the front door, and when I got to the front door I saw Tom Gannaway coming out from the east side of the Palmer house, and he came to the gate at the east corner which comes out on the street, and as he came out the gate he stumbled, and the blood was coming out of his mouth and nose, and when he stumbled he threw up his head. I was in the door then, and he came across the street...