State v. Bartley
| Citation | 84 S.W.2d 637 |
| Decision Date | 10 July 1935 |
| Docket Number | No. 34057.,34057. |
| Parties | THE STATE v. EMMETT BARTLEY, Appellant. |
| Court | United States State Supreme Court of Missouri |
Appeal from Nodaway Circuit Court. — Hon. D.D. Reeves, Judge.
REVERSED AND REMANDED.
Clayton W. Allen and Clark H. Gore for appellant.
(1) Defendant's motion to suppress the evidence and quash the information, in the nature of a plea in abatement, filed in the Circuit Court of Atchison County, Missouri, should have been sustained. Secs. 3692, 3693, R.S. 1929, Sec. 32, Art. II, Const. of Mo; State v. Pearson, 270 S.W. 347. (2) Defendant's plea in abatement, filed in the Circuit Court of Nodaway County, Missouri, on the 2nd day of October, 1933, should have been sustained. State v. Pearson, 270 S.W. 347; Secs. 3692, 3693, R.S. 1929; State v. Naughton, 120 S.W. 53, 221 Mo. 398; 40 Cyc. 2213; State v. Willis, 24 S.W. 1008, 119 Mo. 485; State v. Evans, 39 S.W. 462, 138 Mo. 116; State v. Burlingame, 48 S.W. 72, 146 Mo. 207; State v. Bell, 111 S.W. 24; State v. Witherspoon, 133 S.W. 323; State v. Pearson, 270 S.W. 347; Ex parte Gauss, 122 S.W. 741; Ex parte Carter, 66 S.W. 540; Ex parte Buskett, 17 S.W. 753; Ex parte January, 246 S.W. 241; Dobbs v. State, 113 S.W. 921, 54 Tex. Cr. Rep. 579; Johnson v. State, 148 S.W. 328, 66 Tex. Cr. Rep. 586; Bobbs v. State, 205 S.W. 135; Watt v. State, 235 S.W. 888; People v. Moore, 65 How. Pr. 177; State v. Faulkner, 175 Mo. 611, 75 S.W. 137. (3) The court erred in refusing to give defendant's Instruction 2, in the nature of a demurrer to the evidence offered at the close of the whole case and the court erred in refusing to sustain defendant's demurrer to the evidence. State v. Moxley, 1 Mo. 374, 14 S.W. 969; State v. Wheaton, 221 S.W. 26; State v. Pritchett, 39 S.W. (2d) 796; State v. Crabtree, 170 Mo. 657, 71 S.W. 127; State v. Fordon, 199 Mo. 561, 98 S.W. 39. (4) The verdict was the result of the bias, prejudice and passion of the jury. Authorities under Point 3. (5) The State failed to prove that any crime had been committed. State v. Wheaton, 221 S.W. 26. (6) The court erred in allowing the prosecuting attorney over the objection of the defendant to cross-examine as to matters not covered by direct examination. The court allowed the prosecuting attorney to question the defendant as to whom he first told that the shooting was an accident. State v. Wicker, 222 S.W. 1014; State v. Pierson, 56 S.W. (2d) 1120; State v. Lundy, 207 S.W. 770; State v. Nicholson, 7 S.W. (2d) 375. (7) The court erred in refusing to instruct on all the law in the case. State v. Decker, 14 S.W. 617. (8) The court erred in refusing defendant's Instruction 5. State v. Moxley, 102 Mo. 374, 14 S.W. 969. (9) The court erred in refusing to give defendant's Instruction 6. (a) For the reason that the main issue in this case was whether or not the shooting was intentionally done and the defense was that the shooting was an accident. This instruction was the converse of the State's instruction and the defendant was entitled to an instruction on his theory of the defense. (b) And if this instruction was not in proper form, it was a sufficient request to the court for an instruction outlining defendant's theory of the defense. State v. Little, 126 S.W. 971; State v. Simon, 317 Mo. 336, 295 S.W. 1081; State v. Ledbetter, 58 S.W. (2d) 453; State v. Jackson, 126 Mo. 521, 29 S.W. 601; State v. Rutherford, 152 Mo. 124, 53 S.W. 417; State v. Johnson, 234 S.W. 794; State v. Cantrell, 290 Mo. 233, 234 S.W. 800; State v. Majors, 237 S.W. 486; State v. Hays, 247 S.W. 165; State v. Hayes, 301 Mo. 304, 256 S.W. 747; State v. Stewart, 29 S.W. (2d) 120; State v. Gillum, 77 S.W. (2d) 110; State v. Market, 77 S.W. (2d) 112. (10) The court erred in refusing to give defendant's Instruction 7. The court gave Instruction C offered by the State, in which it instructed the jury that if they found the defendant not guilty of murder in the first degree, that they would then consider whether or not defendant was guilty of murder in the second degree and did not instruct the jury that they should consider whether or not defendant was guilty of manslaughter. State v. Anderson, 86 Mo. 309, 72 S.W. 924.
Roy McKittrick, Attorney General, Wm. Orr Sawyers, Assistant Attorney General, and Lee Mullins for respondent.
(1) The information charging murder in the first degree is sufficient in form and substance and gave the trial court jurisdiction to try the cause. State v. Conley, 255 Mo. 194, 164 S.W. 193; Sec. 23, Art. II, Mo. Const.; Secs. 3692, 3982; R.S. 1929; State v. Allen, 290 Mo. 283, 234 S.W. 837. (2) The verdict of second degree murder is responsive to the information charging first degree murder, and is sufficient in form. Sec. 3984, R.S. 1929; State v. Johnson, 26 S. W. (2d) 793. (3) There was substantial evidence to support the verdict of second degree murder in this case, hence the demurrers to the evidence were properly overruled. State v. Cutter, 1 S.W. (2d) 97, 318 Mo. 687: Sec. 3663, R.S. 1929; State v. Creighton, 52 S.W. (2d) 562, 330 Mo. 1176; State v. Baublits, 27 S.W. (2d) 16, 324 Mo. 1207; State v. Houston, 292 S.W. 730. (4) Assignment of error that the court refused to instruct on all of the law of the case is too general for consideration on appeal. Sec. 3735, R.S. 1929; State v. Layton, 58 S.W. (2d) 458, 332 Mo. 216. (5) The court properly refused to give defendant's instructions 3 and 9, relating to the weight and value to be given to circumstantial evidence. State v. Shelton, 223 Mo. 137, 122 S.W. 732; State v. Baird, 231 S.W. 626, 288 Mo. 62. (6) The court committed no error in allowing defendant to be cross-examined on the stand as to how the homicide occurred. State v. Simmons, 58 S.W. (2d) 304, 332 Mo. 247. (7) The court properly refused to give cautionary Instruction 5, relating to declarations against interest in evidence made by defendant. Sec. 3681, R.S. 1929; State v. Evans, 23 S.W. (2d) 154, 324 Mo. 159; State v. Liolios, 225 S.W. 948, 285 Mo. 1; State v. Henderson, 186 Mo. 497, 85 S.W. 576. (8) The court properly refused to give defendant's instructions 6, 11 and 13 relating to the defense interposed in the case that the killing was an excusable homicide. State v. Webb, 205 S.W. 190; Secs. 3986, 3987, R.S. 1929; State v. Farrell, 6 S.W. (2d) 860, 320 Mo. 319; State v. Ryland, 25 S.W. (2d) 112, 324 Mo. 714. (9) The court properly refused to give defendant's Instruction 7, relating to reasonable doubt. State v. Nerzinger, 220 Mo. 36, 119 S.W. 383. (10) Instruction A given by the court properly defined the term "deliberation" as used in other instructions. Sec. 3734, R.S. 1929; State v. Bird, 228 S.W. 753, 286 Mo. 593. (11) Instruction B given by the court properly stated the law relative to murder in the first degree. State v. Young, 286 S.W. 35, 314 Mo. 612. (12) Murder in the second degree was properly defined in the court's Instruction C., which was given. State v. Young, 286 S.W. 34, 314 Mo. 612. (13) Manslaughter was properly defined in the court's Instruction D, which was given on court's motion, and 12 as modified by the court. State v. Dodson, 29 S.W. (2d) 62; State v. Hearney, 177 S.W. 307; Sec. 3988, R.S. 1929; State v. Ryland, 25 S.W. (2d) 112, 324 Mo. 714. (14) Voluntary drunkenness was properly instructed upon in the court's Instruction F, which was given. State v. Murray, 193 S.W. 833; State v. Dunn, 77 S.W. 855, 179 Mo. 95. (15) The court committed no error in allowing testimony from witnesses who testified in chief and on cross-examination in this cause. State v. Adams, 300 S.W. 742, 318 Mo. 712. (16) The court committed no error in refusing to discharge the jury for misconduct of the prosecuting attorney in his argument. State v. Blackmore, 38 S.W. (2d) 36, 327 Mo. 708.
Appellant was found guilty of murder in the second degree and received a sentence of thirty years' imprisonment in the penitentiary, from which sentence he has appealed. On January 24, 1933, the prosecuting attorney of Atchison County, Missouri, filed an information in the circuit court of said county charging appellant with murder in the first degree in that on the sixteenth day of January, 1933, he shot and killed his son, Wilburn Bartley.
Appellant was first tried upon this charge in Atchison County and found guilty of murder in the second degree. His punishment was fixed at twenty-five years' imprisonment in the penitentiary. The trial court granted appellant a new trial. Thereafter the venue was changed, on application of appellant, to Nodaway County where he was again tried and found guilty as above stated.
At the time of the tragedy here in question, appellant and his family lived in a covered wagon and a small house on a farm in Atchison County. Some members of the family slept in the wagon and others in the house. Appellant and his family often traveled from place to place in the covered wagon, making a living by trading horses.
The State's evidence in support of the charge reveals the following state of facts: On Monday morning, January 16, 1933, appellant instructed his son William, who was about thirteen years of age, to do the chores and to awaken Wilburn, saying: "Tell that big boy to get up," meaning Wilburn, who was sleeping in the small shack. Appellant and William had slept in the covered wagon. When Wilburn was awakened he arose, dressed and went to the wagon, which was standing a short distance from the house. When Wilburn reached a point within a few feet of the wagon he was shot in the chest and killed with a load of shot discharged from a shotgun in the hands of appellant. The State's evidence further disclosed that Wilburn was a strong, healthy man, about eighteen years of age; that the father, appellant, had made numerous threats against this son, many of these threats being that he was going to kill the boy because he was always making trouble at home. It was shown that Wilburn had been away from home for about two years and had returned only a few weeks...
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