The State v. Cummings

Citation88 S.W. 706,189 Mo. 626
PartiesTHE STATE v. CUMMINGS, Appellant
Decision Date20 June 1905
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis City Circuit Court. -- Hon. Walter B. Douglas Judge.

Affirmed.

John I Martin, C. E. L. Thomas and James H. Lay for appellant.

(1) The trial court committed reversible error in refusing to grant defendant a continuance. State v. DeWitt, 152 Mo 76; State v. Bowman, 161 Mo. 88; State v. Clark, 147 Mo. 20; State v. Kindred, 148 Mo. 270; State v. Maddox, 117 Mo. 667; State v. Anderson, 96 Mo. 241; State v. Bryant, 93 Mo. 273; State v. Strattman, 100 Mo. 540; State v. Wilson, 85 Mo. 134; State v. Bradley, 90 Mo. 160; State v. Moore, 121 Mo. 514; State v. Hickman, 75 Mo. 416; State v. Warden, 94 Mo. 648. (2) Error was committed in allowing alleged photographs and diagrams of the room and the furniture therein, where the killing occurred, to be introduced in evidence. (3) The court erred in allowing attorney Krone to testify to confidential communications made to him by the defendant. The relation of attorney and client existed between Krone and defendant according to Krone's testimony and the testimony of defendant. (4) The closing argument made by the assistant circuit attorney was prejudicial to defendant. State v. King, 64 Mo. 591; State v. Lee, 66 Mo. 165; State v. Young, 105 Mo. 634; State v. Fischer, 184 Mo. 460.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

Objection is made to certain statements made by the prosecuting officer in his closing argument to the jury. An examination, however, of these statements given with the objections, show that no prejudice was worked or injustice was done the defendant on account thereof. In the first place, the evidence was introduced just as stated by the attorney to the jury; and secondly, no reason was given for the incompetency of the testimony at the time it was introduced.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, also for the State.

A motion for a continuance is addressed to the sound discretion of the court, and under the facts in this case, it cannot be said that there was an abuse of that discretion. State v. Simms, 68 Mo. 305; State v. Banks, 118 Mo. 117; State v. Riney, 137 Mo. 102.

OPINION

FOX, J.

This prosecution is based upon an indictment filed in the circuit court of the city of St. Louis, Missouri, on the 21st day of May, 1903. The indictment charges this defendant, Minnie Cummings, with murder in the second degree; that of wilfully, premeditatedly and with malice aforethought, killing one Dennis Cummings, on the 18th day of April, 1903, in said city.

Upon arraignment the defendant entered a plea of not guilty, and was placed upon trial on the 9th day of July, 1903, before a jury duly empaneled. The facts developed upon the trial on the part of the State were substantially as follows:

The shooting occurred at 2814 Locust street, in the city of St. Louis, in the back room of the third story. The defendant and the deceased were husband and wife; that they were married in July, 1902, and lived together, boarding at first one place and then another, until about four weeks prior to the difficulty, during which time they had been seeing and visiting each other frequently. After the separation the deceased boarded on Channing avenue in said city; that about three weeks before the difficulty the deceased was arrested, charged by defendant with stealing her jewelry, and placed in jail and remained there about a week; that during his confinement an officer visited his room, having a written order from the deceased to search it; the defendant appeared shortly after his arrest, at his boarding-house, and inquired for her husband; the door to his room being locked, the landlady thought he had left and so informed the defendant; that defendant appeared one evening and was very angry with the landlady for deceiving her; that she again visited his boarding-house one Sunday, and being refused admission to the deceased's room, told the proprietress her troubles, that Cummings had treated her very badly, stolen her jewelry, and requested the landlady to try to bring about a reconciliation, and if necessary send for her, but to try to get him to visit her at her place; the deceased at that time was out of jail and she promised the defendant that she would deliver her message to the deceased, which she did the next morning; that on one of the visits of the defendant to the room of her husband, she borrowed scissors and opened his trunk looking for her jewelry, and while in the room, seeing some ladies' wearing apparel, hair pins, etc., she said that another woman had been in his room; the landlady informed her that she had formerly occupied the room and that the hair pins were her property; on Friday week before the homicide, the defendant secured a room at 2814 Locust street; that during that week defendant told the landlady that her husband was going with another woman, saying that she had seen him with another woman and referring to him as Cummings or the Irishman; that on Sunday night before the homicide she left her room saying that she was going to the deceased's boarding-house and wait until he came in if it was five o'clock in the morning; that she visited the deceased at his room one night, arriving there between two and three o'clock in the morning, and the next morning had breakfast with him; that the deceased and defendant had a conversation at the breakfast table in which a woman's name was mentioned; the defendant spoke very kindly of her and then asked the deceased why he did not come and stay at home with her and do what was right, to which he replied, "I am not going there, you want to get the drop on me; you want to kill me; you want to take advantage of me;" that the defendant said, "no such thing," that she wanted him to behave and that she didn't want to harm him at all; that the deceased was drinking and insisted that she wanted to kill him; he mentioned her former husband and said, "You want to get the drop on me like you did Harris," and finally he said he would not go home with her and never would go; that he did not intend to go back; that he was afraid to. In a few days and on the day of the killing, the deceased removed his trunk from his boarding-house at the request of the landlady, who said she did not want to be bothered with their troubles; the defendant appeared on Channing avenue at the boarding-house of the deceased about two o'clock in the afternoon and about a half hour after the deceased had removed his trunk and was seen talking to someone in front of the house; the deceased removed his trunk to his wife's room on Locust street, reaching there about five o'clock that afternoon. The defendant was seen about half past four that afternoon at her boarding-house and asked the landlady if her husband had been there, and then went up stairs, returning shortly, telling the landlady that he had been there and left a note; she handed the note to the lady and asked her to read it; the note read: "I will see you later." The defendant was seen again about six o'clock that afternoon; she went into the kitchen, closed the doors between the hall and dining-room and told the landlady that she had killed her husband; she stated that when she went up stairs he drew a knife on her and she shot him; the lady remarked that perhaps he was not dead, to which she replied, "Yes, he is dead, come up stairs and see him." The lady then asked her why she did it in her house, and she replied, "It was my life or his and I had to do it; I found a pawn ticket on him for my jewelry, pawned for $ 90;" and calling the lady by her name said, "Mrs. Duff, you are a woman like myself, stand by me." The defendant further stated that there was a blood stain on the carpet but that it would wash out, and added, "It came out of my carpet on Evans avenue."

Dr. Rule testified that he was called to the scene of the shooting and arrived there about six o'clock; that he found the deceased lying on his back with his head on a rug; that his feet were to the south window, with one limb entirely extended and the other slightly contracted; that he found blood in the southeast corner of the room about four or five feet from where the deceased was lying, also blood on the curtain on the window and on the rug on which his head was lying; on the floor near the window he found a bullet; that there was an indenture in the wall showing where the bullet struck; that the deceased had on his overcoat, which was thrown back, but that it was about straightened out under him; that from his examination of the body the deceased had been dead a half hour or longer when he arrived; that the blood had changed in color and had congealed about the wound; that the defendant stated to him that she was expecting trouble and had bought a revolver; that he then left the house to notify the police and when they arrived he returned to the house and found a knife in the deceased's right hand under his body, with the large blade opened.

The testimony further shows that about three o'clock on the afternoon of the homicide the defendant visited the barber shop of W. T. Cambron on Leffing-well avenue and asked to borrow a revolver, saying that she had been robbed about two weeks before; the witness told her that he did not have one and she then asked if he knew where she could find one. About four o'clock that afternoon the defendant visited Dunn's Loan Company and borrowed a 38 calibre revolver, for which she paid $ 7, agreeing to return it in a week or ten days, on the returning of which she was to be refunded a certain sum.

Dr Hochdoffer testified that he was connected with the...

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2 cases
  • State v. Starchich
    • United States
    • Missouri Court of Appeals
    • November 5, 1914
    ...refusal of a continuance rests in the sound discretion of the trial court. State v. Fox, 79 Mo. 109; State v. Banks, 118 Mo. 117; State v. Commings, 189 Mo. 626; State Sublett, 191 Mo. 163. (2) The courts of this State have held that it is competent to show that defendant had a government r......
  • State v. Ripey
    • United States
    • Missouri Supreme Court
    • June 30, 1910
    ... ... appellate court should not undertake to retry the case upon ... the evidence as disclosed by the record. The court properly ... submitted this cause to the jury. State v. Wilson, ... 223 Mo. 173; State v. George, 214 Mo. 271; State ... v. Cummings, 189 Mo. 626; State v. Swisher, 186 ... Mo. 1; State v. Dilts, 191 Mo. 665; State v ... Mathis, 191 Mo. 587; State v. Dusenberry, 112 ... Mo. 293; State v. Macks, 140 Mo. 656. The proof ... clearly shows the crime of rape to have been committed, and ... that appellant was the guilty one ... ...

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