The State v. Gordon

• Decision Date: 04 December 1906
• Citation: 98 S.W. 39,199 Mo. 561
• Parties: THE STATE v. GEORGE W. GORDON, Appellant
• Court: Missouri Supreme Court

98 S.W. 39

199 Mo. 561

THE STATE v. GEORGE W. GORDON, Appellant

Supreme Court of Missouri, Division Two

December 4, 1906

Appeal from Cole Circuit Court. -- Hon. Wm. H. Martin, Judge.

Reversed.

W. S Pope, A. T. Dumm, W. M. Williams and Perry S. Rader for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence. There is no evidence in the case that defendant fired the shot that killed his wife. There is no testimony from which such an inference may be reasonably drawn. On the contrary, the State's evidence and the defendant's evidence agree in establishing the fact that defendant was in his bed-room at the time the gun was discharged; that the dining-room was between his bed-room and the kitchen where his wife was; and that the gun was in the kitchen when it was discharged. The testimony not only fails to show that defendant fired the shot that killed his wife, but it goes much further and affirmatively shows that he did not do so. Admitting, for the sake of getting an analytical view of the circumstances, that the boy correctly testified on direct-examination when he said he dozed after he lay down on the bed, and that he was mistaken when he said at the coroner's inquest and on cross-examination at the trial that it was immediately or within half a second after he lay down on the bed that he heard the shot fire, yet his consistent and uncontradicted evidence, and the uncontradicted evidence of the defendant, put the defendant in his own bed-room when the shot was fired. State v Scott, 177 Mo. 673; State v. King, 174 Mo. 662; State v. Crabtree, 170 Mo. 657; State v Ballard, 104 Mo. 637; State v. DeWitt and Jones, 191 Mo. 58; State v. Mahan, 138 Mo. 112; State v. Brosius, 39 Mo. 534; State v. Hagan, 164 Mo. 654; State v. Morney, 196 Mo. 43. (2) Where it may be as reasonably conjectured from the evidence that deceased came to her death in some other way, a verdict finding defendant guilty of having killed her will not be permitted to stand. State v. Crabtree, 170 Mo. 642; State v. Nesenhener, 164 Mo. 461. The only theory upon which the verdict can be accounted for in this case is that the jury felt that defendant was required to show how his wife was killed, and as he did not do so they would, therefore, find that he killed her. The evidence does not show what caused the gun to go off, but it does give better reason to conjecture that it went off accidentally, or was unintentionally fired by the boy, than that it was fired by defendant. There is no proof of the corpus delicti in this case. State v. Crabtree, 170 Mo. 650. (3) The court erred in refusing to permit the defendant to show that Clarence Kouns was "careless in handling firearms," and "disposed to tinker with firearms" and "reckless with the use of firearms when he got hold of them." This evidence was objected to as being "a little bit remote." Ordinarily such evidence would have been inadmissible; but in this case it was not, but would have been of exceeding value to the defendant. (4) The court erred in not confining the case to murder in the first degree. The defendant is either guilty of deliberate murder or he is not guilty of murder in any degree. State v. Talbott, 77 Mo. 341; State v. Punshon, 124 Mo. 448; State v. Starr, 38 Mo. 272; State v. Phillips & Ross, 24 Mo. 490; State v. Patterson, 73 Mo. 713; State v. Wilson, 88 Mo. 16; State v. Collins, 86 Mo. 245; State v. Mahly, 68 Mo. 318; State v. Turlington, 102 Mo. 660; State v. Lane, 64 Mo. 324; State v. Stoeckli, 71 Mo. 559; State v. Allen, 116 Mo. 555.

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

(1) Witness Lartonoix was asked the following question by counsel for defendant: "Well, do you know any thing about this little boy being careless about handling firearms and being disposed to tinker with firearms?" An objection to this question was sustained by the court, and the defendant excepted. The defendant then offered to prove the boy's habit of being reckless with the use of firearms when he got hold of them, and of his hearing the boy talk about his manner of using firearms; to which offer the court sustained an objection, and defendant excepted. The purpose of this evidence was to show that the boy, Clarence Kouns, and not the defendant, shot the deceased. It is well-settled law that threats made by third persons to commit a crime charged against the accused, or evidence creating an inference that some other than the accused is guilty of the homicide, is inadmissible. State v. Taylor, 136 Mo. 73; Buell v. State, 104 Wis. 149; State v. Crawford, 99 Mo. 80; State v. Barrington, 95 S.W. 235. (2) Prejudicial error was not committed in failing to instruct the jury on murder in the first degree, nor in instructing the jury on murder in the second degree. State v Todd, 194 Mo. 394; secs. 2535, 2369, R. S. 1899; State v. McMullin, 170 Mo. 608; State v. Frazier, 137 Mo. 317. (3) The court did not err in refusing to grant the defendant a new trial on the ground that the evidence was insufficient to support the verdict. "If there is substantial evidence tending to show defendant's guilt, the sufficiency of the evidence to support the verdict will not be considered by the appellate court." State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Frank, 159 Mo. 535. (4) The court did not err in overruling defendant's demurrer to the evidence. "An instruction to the jury to acquit should only be given where there is no evidence tending to prove the offense charged." State v. Warner, 74 Mo. 83; State v. Hill, 96 Mo. 357; State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Frank, 159 Mo. 535. It is not contended that it is incumbent on the defendant to account for the killing of the deceased on some other theory than through his criminal act. That would be denying to him the presumption of innocence. But, it is contended that when facts and circumstances are proven tending to establish the charge in the indictment, it then becomes an issue, under the law governing circumstantial evidence, whether such circumstances are consistent with each other and with the defendant's guilt and inconsistent with any reasonable theory of the defendant's innocence. Whether they are or not is a question of fact for the jury. The evidence in this case shows beyond a doubt that the defendant and his wife were not living in harmony, and that there existed some serious trouble between them. The defendant and the deceased slept in separate rooms, and the latter always bolted the door of her bed-room on the inside before retiring. The foregoing facts show clearly that the relations existing between the defendant and his wife were strained and that their marital life was unhappy and discordant, and furnish a strong motive for the homicide. The defendant's testimony in giving his reasons for taking the loaded gun to the house the night before the killing of the deceased is unreasonable and improbable. If the gun was so defective that it frequently was discharged accidentally while being carried by hunters, the defendant doubtless knew of that fact. One of his own witnesses testified that he thinks he told him of it, and yet, according to defendant's evidence, he took this defective, unsafe gun to his home, set it against the wall near where his wife was at work in order that a nine-year-old boy should take it to the gunsmith's without having noticed whether or not the gun was loaded. The fact that when he brought the gun into his own room the night before he took the precaution to place it under the bed, indicates very strongly that he did know it was loaded; otherwise, it was entirely unnecessary to put it in such a place. The defendant could pass by the gunsmith's in going to and returning from his store without going out of his way. The gunsmith's was much nearer the defendant's store than it was to his residence, and he could easily have taken the gun there to be repaired from his store at any time during the day. It is shown by the evidence that his nephew frequently carried dinner to the defendant at his store, and as the gun had been out of repair and dangerous for at least two years, he could have sent the gun to the shop from the store at any time by his nephew. It is, at least, deserving of note that although the gun had been out of repair for so long a time, it first occurred to the defendant that he should take it to his home late at night that it might be sent from there to the gun-smith's, and that this should have occurred the first night after he had told his wife that he was going to put her out of the house. According to the defendant's testimony, after he had placed the gun in the kitchen, he went back to his bed-room, put on his overcoat and was ready to start for the store when he heard the report of the gun. Being awake and on his feet, it would have taken him but an instant to have been at the side of his wife. The boy was lying on the bed and dozing when he heard the shot. He must have been somewhat dazed by what had happened, and yet he got up from the bed, noticed his aunt lying on the floor, passed from the bed-room into and through the kitchen, and, according to the defendant's testimony, met the defendant in the middle of the dining-room. Where was the defendant and what was he doing from the time the gun was discharged until the boy met him? The direction of the charge, as indicated by the wound, was horizontal and slightly inclined upward, and this fact, considered together with the point at which the charge entered and the direction in which the body fell, indicates that the gun was in a horizontal position when the shot was fired, and makes it very probable that the shot came from the direction of the...