Mott v. State

• Decision Date: 16 May 1951
• Docket Number: No. A-11318,A-11318
• Citation: 232 P.2d 166,94 Okla.Crim. 145
• Parties: MOTT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 166

232 P.2d 166

94 Okla.Crim. 145

MOTT v. STATE.

No. A-11318.

Criminal Court of Appeals of Oklahoma.

May 16, 1951.

Syllabus by the Court.

1. The Criminal Court of Appeals is committed to the rule, many times upheld, that an application for continuance on the ground of want of time to prepare for trial is addressed to the sound discretion of the trial court, and the ruling of that court will not be disturbed on appeal, unless an abuse of discretion is shown.

2. It is argued that the nature of the wound of the deceased child was otherwise proven and that photographs disclosing the nature of the wound were without probative value and their admission was prejudicial and inflamatory. While the pictures may have tended incidentally to inflame the jury, there was a question as to how the injury was inflicted, and where a photograph is shown to be a faithful reproduction of whatever it purports to reproduce, it is admissible in evidence, as an appropriate aid to the jury in applying the evidence and this is equally true whether it relates to persons, things or places.

3. The introduction of photographs taken subsequent to a homicide is largely in the discretion of the trial court, and unless this discretion is abused it will not be a cause for reversal.

4. The term 'reasonable doubt' does not require defining. It is as well understood as any definition of it. It is not error for the trial court to fail to define reasonable doubt, whether requested to do so or not.

5. No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.

6. For insanity due to intoxication to be a defense, it must be insanity caused by chronic alcoholism, and not a mere temporary mental condition.

7. The remarks of the county attorney to the jury in the closing argument examined and while not approved, are not found to be so prejudicial as to justify the reversal or modification of the judgment.

8. In prosecution for murder, with sentence of death, record examined, judgment of conviction affirmed, and date of execution set.

D. L. Grace, I. S. Simmons, Fort Smith, Ark., Quinn M. Dickason, Tulsa, for plaintiff in error.

Hugh M. Bland, John Harris, Fort Smith, Ark., amici curiae.

Mac. Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The plaintiff in error, Milburn J. Mott, was charged by information filed in the District Court of Tulsa County with the crime of murder, was tried to a jury, convicted, and his punishment was by the jury fixed at death, and thereafter judgment was by the trial court entered accordingly. Appeal has been duly perfected to this court, and execution stayed pending outcome of the appeal. The plaintiff in error will hereinafter be referred to as defendant.

Counsel for reversal urges six specifications of error, and being:

'1. That the court erred in refusing the defendant his requested continuance of the case;

'2. The court erred in refusing to sustain defendant's motion to quash the jury panel;

'3. That the court erred in denying defendant's demurrer to the evidence of the State;

'4. That the court erred in refusing to sustain the demurrer of defendant at the close of all the evidence.

'5. That the judgment is contrary to the law.

'6. That the judgment is contrary to the evidence.'

While the record contains nearly seven hundred pages, and most of the exhaustive briefs of defendant are devoted to reviewing and quoting the evidence, we find no material conflict in the same, so far as concerns the details of the murder and the fact that defendant was the murderer. Stripped of all legal verbiage, the information charged that on the 8th day of March, 1949, the defendant effected the death of his daughter Mary Frances Mott, age six years, by cutting her throat with a twelve-inch butcher knife.

Considering the evidence on behalf of the State, we find:

That the defendant's wife, Nettie Loretta Mott, age 28, her five children ranging in age from ten to four years including twin girls eight years of age, his mother-in-law Jane Ethel Birch age 48 years and her twelve-year old daughter, lived at Sand Springs, in a one-room ground floor apartment of the three-story cement block Alvarado Apartment house, the room being formerly a store room. These people cooked, ate and slept in this one room. A community bath and toilet was available nearby in the building. Mrs. Birch had a husband but did not live with him. She had another daughter, Lucille Birch, age 31, who lived in an upstairs apartment of this building.

It appears that Mrs. Mott took this apartment about the time her husband entered the military service in 1942. After getting out of the army, defendant had not been able to make a go of supporting his family, and could not live with the family and get along with his mother-in-law. But in November, 1947, he did persuade his wife to leave with him for Arizona. They took three of the children. Defendant and his wife worked at various jobs, including cotton picking, but in May, 1948, the wife and children returned to Sand Springs and the wife got a job at a local cotton mill, and she and her mother moved into the apartment in question. The defendant proceeded to California and purchased an old car, and on stepping out of it on a highway, was struck by a motorcycle and severely injured and spent about five months in a hospital. There was no room in the one-room apartment for the defendant, and it is apparent that he was not financially able to support his family, but he did visit his family during the Christmas holidays and his mother-in-law moved up with her other daughter, but finally forced defendant out of the apartment, and he lived in a hotel a short time, and his wife would visit him there. Defendant returned to California for further medical treatment, but hitchhiked back to Sand Springs, arriving on the evening of March 7, 1949, at about five o'clock.

Jane Ethel Birch, the mother-in-law, testified that the defendant on returning, visited his wife's apartment; witness, the wife and children, and two of his wife's girl friends being present. Mott stayed until about 11:00 P. M. Witness testified that before defendant left he asked the children if they would like to see him beat their mother up again. Witness stated that the defendant returned to the apartment again the next morning about eight o'clock; that he stayed until his wife left for work at the cotton mill about two o'clock in the afternoon, that during his stay he slapped the baby because he pulled on his daddy's tie while defendant was dressing; that he returned to the apartment around five o'clock in the afternoon, but stayed for only about five minutes, talking to the baby. The wife was not present. About 11:00 P. M., the five Mott children were in bed, as was her twelve-year old daughter. Mrs. Mott was due home from work at 11:00 P. M.; that witness saw Mott cross the street to a beer joint; that shortly afterwards Mrs. Mott arrived home from work and Mott came over and knocked on the front door, and Mrs. Mott opened the door. The screen was fastened. She told defendant to go on home and go to bed that he had been drinking and that she was not going to let him in; that he stated he wanted to come in and talk sense, and the wife told him to go on and they could talk the next day; that defendant then said: 'You see this?' and she slammed the door and said: 'Mother, he has a gun.' Witness further testified that Mrs. Mott fastened the door and that defendant commenced to kick the door in and that glass went flying. Witness and Mrs. Mott then ran out of the north door and sought refuge in another apartment, finally being admitted to the Moss apartment where they stayed a few minutes until someone knocked and Mr. Moss asked who it was and that she heard Charles Wayne Mott, the ten-year old son, say, 'It's me.' On being admitted he stated: 'Grandma, Daddy has cut Frances' throat.' Witness, Mrs. Mott and several others then went to Mrs. Mott's apartment and found Mary Frances Mott dead and her throat cut so that the spine could be seen. Witness identified a blood-stained butcher knife that was found on the floor of the Mott apartment at one end of the divan, and she stated that she had owned it for three or four years and kept it in a drawer next to the cook stove.

Lucille Birch testified that she was 31 years of age, lived up stairs in the same apartment building as her sister Mrs. Mott; that some time after eleven o'clock the night of March 8, 1949, and while she was asleep someone opened the door and came into her apartment. She jumped out of her bed and screamed; that she recognized the man standing in her room as Milburn J. Mott; that she threatened to call the police and he drew a gun and said: 'You will never live to call the police.' That she screamed again and ran to her landlady.

Charles Wayne Mott testified that he was ten years of age, that Wilburn J. Mott was his daddy; that he attended Sunday School regularly and knew what it was to tell the truth and understood that little boys who told lies would be punished. He stated that on Tuesday night, March 8, 1949, he and his brother and sisters were sleeping in his mother's apartment, he and his sister Mary Frances sleeping in the same bed; that in the night he was awakened and looked and saw his father standing in the middle of the room. He further testified:

'Q. Now tell us what your daddy did when you saw him in the middle of the room. A. He looked around the room and then he looked at our bed and then he looked at the two doors and then he went and latched the front door and the back door.

'Q. He latched the front door and the back door? A. Yes, sir.

'Q. Point out where the front door and the back door is? A. This is the front door and this is the back door.

'Q. He latched both doors? A. Yes, sir.

'Q. Then what did he do? A...