State v. Adams

• Decision Date: 14 August 1929
• Docket Number: 29415
• Citation: 19 S.W.2d 671,323 Mo. 729
• Parties: The State v. Newell M. (Dobbs) Adams, Appellant
• Court: Missouri Supreme Court

19 S.W.2d 671

323 Mo. 729

The State v. Newell M. (Dobbs) Adams, Appellant

No. 29415

Supreme Court of Missouri

August 14, 1929

Rehearing Denied August 29, 1929.

Appeal from Polk Circuit Court; Hon. C. H. Skinker, Judge.

Affirmed.

Stratton Shartel, Attorney-General, and A. B. Lovan Assistant Attorney-General, for respondent.

(1) The widow of the slain officer had a right to be in the court room. In the absence of any showing to the contrary, it will be presumed that the trial court did not permit any improper conduct upon her part. (2) The only specific objection made was that the hypothetical question did not include the fact that the evidence showed that the defendant had "developed certain symptoms of cerebral syphilis and that the defendant was afflicted with syphilis." Whereupon, at the suggestion of the court there was added to the hypothetical question, the statement that the defendant did have syphilis; and the court added to the question the statement that the defendant showed ordinary symptoms manifested by a person having cerebral syphilis. The question as finally put to the witness, included all the specific things suggested by the appellant in his objection. The above assignment of error in the motion for new trial mentions other specific things which appellant contends ought to have been included in the hypothetical question, but these were not brought to the attention of the court at the time, and therefore cannot be considered now. State v. Todd, 225 S.W. 910. Moreover, the hypothetical question was properly stated and covered substantially the evidence on the question involved, and the court committed no error in admitting it. (3) This question was asked. "Did you have any trouble in arresting him?" The court sustained an objection to this question. The defendant did not make an offer of proof. In the absence of such offer the statement in the motion for new trial that the defendant had never resisted arrest does not get this assignment before the court. State v. Todd, 225 S.W. 910. Moreover, in a case where the defendant is charged with murder and his only defense is insanity, it is too plain for argument that whether he on some prior occasion did or did not resist arrest is immaterial. (4) The assignment of error in the motion for new trial to the giving of instructions is insufficient and does not bring before the court the sufficiency of the instructions mentioned. Sec. 4079, Laws 1925, p. 198; State v. Flynn, 315 Mo. 1331; State v. Standifer, 316 Mo. 53; State v Stuart, 316 Mo. 155. (5) The appellant's objection seems to be that the court should have compelled the jury to take a longer time in which to consider the question of fixing the punishment. There is no provision in the statute requiring the jury to deliberate any length of time. Section 4027 provides that "When the argument is concluded, the jury may either decide in court, or retire for deliberation." The statute is plain that "When the jury find the verdict of guilty and fail to agree on the punishment to be inflicted, . . . the court shall assess and declare the punishment, and render judgment accordingly." Sec. 4048. Therefore, there cannot possibly be any merit in this assignment. (6) It would have been misleading for the court to have given an instruction authorizing the jury to convict the defendant of murder in the second degree. There was no evidence as a basis for such an instruction. In view of the fact that the defense in this case was confined entirely to the defense of insanity, it is difficult to conceive on what sort of a theory the defendant would ask for an instruction on murder in the second degree. (7) The instructions given by the court included a proper instruction on insanity. These instructions have the definite approval of this court. State v. Hollaway, 156 Mo. 228. It was therefore not error for the court to refuse defendant's instruction because the court had already given a proper instruction. State v. Stuart, 316 Mo. l. c. 155.

OPINION

Gantt, J.

By information in approved form the defendant was charged in the Circuit Court of Greene County with murder in the first degree for the killing of Francis M. DeArmond, on June 18, 1928. On his application a change of venue was granted to the Circuit Court of Polk County, where a trial was had before the court and a jury. The only defense was insanity. The jury returned a verdict of guilty, and the court fixed the punishment at death and sentenced defendant accordingly. Defendant appealed.

Defendant was twenty-eight years of age and resided in Springfield, Missouri, many years. For six months period to June 18, 1928, he had been having trouble with his wife, who, a short time prior to said date, left their home, and her whereabouts were unknown to defendant. About 12:30 P. M. on said date, the defendant went to the residence, in Springfield, of his mother-in-law and sister-in-law and made inquiries about his wife. They told him she had gone away. After talking a while, he went in a cab about a mile and a half beyond the city limits to the home of a young woman, who was a friend of himself and wife. On the pretense that a young man wanted to see her at his (defendant's) home, the young woman was induced into the back seat of the cab. The defendant then ordered the car driven to the country. On the way the defendant changed from the front to the back seat and questioned the woman about his wife. She told him his wife was in Kansas City, With an oath, he challenged the statement and struck her in the face; thereupon she told the driver to take her to town. Defendant threatened the driver and forced him to drive to a point about four miles north of Springfield, where he was compelled to leave the cab and go some distance up the road. Defendant then dragged the woman into the brush and shot her in the stomach. He then boarded a passing truck, and, with a gun, forced the driver to turn and drive to Springfield, where, at 12:30 P. M., on reaching a point near the home of his mother-in-law, he alighted, again entered said home, proceeded to curse and abuse his mother-in-law and sister-in-law, charged them with secreting his wife in the house, forced them upstairs, with the gun, where, after much abuse of them, he shot his mother-in-law three times, and while she was on the floor begging for water, broke her nose and jaw with the gun, after which he fastened her in a closet. Then he struck his sister-in-law several times, tore all her clothing from her body, stabbed her many times, and forced her to call a cab, in which he departed. As the cab proceeded, a car filled with policemen was seen and defendant said to the driver, "There comes the law; step on it." He then forced the driver to move the car at high speed to the northeast part of Springfield, where he left the cab without paying the driver. In doing so, he said: "I suppose you will go tell the law now." Shortly the defendant boarded another cab and ordered the driver through alleys and side streets to a point near the residence of a relative on College Street, where he had supper without indication of excitement or trouble. The police having received information that defendant shot a woman north of Springfield, had been searching for him; and while doing so learned that he also shot his mother-in-law and stabbed his sister-in-law. On learning defendant's whereabouts, the deceased, DeArmond, with other officers, went to the residence on College Street about dark, surrounded the house, and entered from the rear. No lights were burning in the house, and as DeArmond was reaching to turn on the light two shots were fired from an adjoining room and DeArmond fell to the floor and there died. The other officers could not see who did the shooting, but saw the flash of the gun. They fired into the room from which the shots came that killed DeArmond, whereupon the defendant called, "Tony (an officer) if you won't shoot me I will give up." Tony replied, "Well, come out." Defendant came from the room from which the shots were fired that killed DeArmond and was arrested. He was the only person who came from that room. Later he made the statement that he knew he was shooting DeArmond and the reason he quit shooting was because "his damn gun hung."

Defendant did not testify, but the evidence on his part tended to show that several of his relatives were highly nervous, some died of paralysis, a grand uncle hung himself, a distant cousin was an idiot and another feeble-minded; that defendant was afflicted with syphilis, addicted to strong drink and sexual excesses, and while usually of a lively and jovial disposition, for six months prior to June 18, 1928, he suffered with headaches, did very little talking and that "in jerks;" that he would sit around with his head bowed and in his hands, crying and threatening to kill himself.

It was contended the defendant was afflicted with cerebral syphilis on the day he killed DeArmond, and physicians testifying for him stated that one so afflicted would be likely to suffer and act as defendant did during said time.

The evidence for the State in rebuttal tended to show defendant was not insane. Physicians testifying for the State, in answer to hypothetical questions, gave it as their opinion the defendant knew the difference between right and wrong. Physicians testifying for the defendant, on cross-examination and in answer to similar hypothetical questions, gave, in effect, the same opinion.

In the motion for a new trial and in Division, defendant did not challenge the authority of the court under Section 3232, Revised Statutes 1919, to fix the punishment. We raised the question ourselves and reversed the judgment and remanded the case for the reason the court was not authorized to fix the...