State v. Aubuchon
| Decision Date | 11 October 1965 |
| Docket Number | No. 1,No. 50619,50619,1 |
| Citation | 394 S.W.2d 327 |
| Parties | STATE of Missouri, Respondent, v. Arthur R. AUBUCHON, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jfferson City, Ben Ely, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
Charles M. Shaw and Claude Hanks, Clayton, for appellant.
HIGGINS, Commissioner.
Arthur R. Aubuchon, indicted for the crime of murder in the first degree of Dennis Sass, was convicted of murder, second degree, and the jury fixed his punishment at seventy-five years' imprisonment. Section 559.030 RSMo 1959, V.A.M.S. Sentence and judgment followed and defendant has appealed. He has filed no brief so we review assignments of error properly preserved in the motion for new trial. State v. Kukovich, Mo., 380 S.W.2d 324, 325. Our statement will be brief because it is not contended that the evidence was insufficient to sustain the conviction.
Appellant began to see Esther Mills socially in August, 1962, and he and Mrs. Mills were to be married after she became divorced. For some three months prior to March 5, 1963, Mrs. Mills lived in a home in Glasgow Village, St. Louis County, Missouri, upon which appellant paid the rent. In February, 1963, Mrs. Mills quit dating appellant and began to see Dennis E. Sass. Appellant thereafter threatened Sass's life on three different occasions and, on still another occasion, went to Sass's place of employment, attacked him, and told him to stop seeing Mrs. Mills.
On March 4, 1963, appellant obtained a 38-caliber Smith & Wesson Chief Special revolver from the New Line Gun Company in St. Louis. During the bargaining, appellant stated that he wanted the gun right away. On that evening appellant visited several taverns and then drove to the Mills home in Glasgow Village where, at about 1:00 A.M., March 5, he found Sass sitting in Mrs. Mills's Buick automobile. Appellant ran from his car to the Buick, opened the door, and shot Sass. Appellant got back in his car, drove a short distance, turned around, and returned to the scene of the shooting. Sass was then slumped over and Mrs. Mills had come from the house and was standing by her car. Appellant then shot her and she fell to the ground beside the car. The two shootings were three to five minutes apart.
Appellant left the scene immediately, disposed of the gun in the Mississippi River, and went to Fort Lauderdale, Florida, arriving there by bus March 7, 1963. He registered at a hotel there as Al Anderson. He was arrested in Miami Beach, Florida, March 9, 1963, and made an oral statement which included admissions that he had shot both Dennis E. Sass and Esther Mills.
Both of the victims died from gunshot wounds in the head. Mrs. Mills received two gunshot wounds, one in the head; Sass received six shots, two in the head.
Upon trial, appellant contended that he shot Sass in self-defense and that Mrs. Mills was shot accidentally.
Assignments 1, 5, 6, and 7 of the motion for new trial will be considered together because they all charge error in permitting mention and evidence of the death of Esther Mills. By Assignment 1 appellant contends that mention of the death of Mrs. Mills in the opening statement of the prosecuting attorney was prejudicial to defendant because it related to another crime. In Assignment 5 the same error is charged against the admission into evidence of Exhibit 4, a photograph of Mrs. Mills in a prone position upon the ground. This assignment also charges that the photograph could serve only to inflame the minds of the jury. Assignment 6 makes the same charges against Exhibit 22, a missile taken from the body of Mrs. Mills; and Assignment 7 is similarly directed against the testimony of the pathologist concerning the death of Mrs. Mills and the removal of the bullet.
The general rule excluding evidence that the accused committed other crimes does not apply where such evidence tends to prove guilt of the crime charged, or where the crime charged and the other offenses are so closely related or connected that one cannot be shown without proving the other; and evidence otherwise competent on the issue of accused's guilt of the crime charged is not inadmissible because it also shows him guilty of another crime. See 22A C.J.S. Criminal Law, Sec. 683, p. 741, et seq.
By appellant's admission the two killings occurred at the same place, in front of Mrs. Mills's home, only three to five minutes apart, and the bodies were found close together. Under these circumstances, the two offenses were so closely related as to constitute a single occurrence in which proof of one offense also shows the other. Both killings came after a series of events in appellant's romance with Mrs. Mills, which events included threats by appellant against the life of Sass if he did not stay away from Mrs. Mills. Such circumstances permit evidence of the offense against Mrs. Mills. It tends to show the motive and intent of the appellant in killing Sass because Sass himself became involved with Mrs. Mills to the exclusion of appellant. Being thus all a part of one transaction, it was not error to permit the reference to Mrs. Mills's death in the opening statement and to receive the photograph of her body and the details of her death in evidence. State v. Varner, Mo., 329 S.W.2d 623, 628[7-9]; State v. Gillespie, Mo., 336 S.W.2d 677, 682.
Assignments 2, 3, and 4 relate to the receipt of Exhibits 1, 2 and 3 showing Sass's body. The charge is that they serve no purpose but to inflame the minds of the jury. Appellant contended throughout the trial that he killed Sass in self-defense. He testified that he was attacked by Sass and that he shot Sass during the attack. Appellant's statement to the police was that he shot Sass while Sass was in the car, and officers who were at the scene shortly after the shooting found Sass's body seated behind the steering wheel of the Buick. The exhibits were material evidence on the issue of self-defense and as to whether Sass was shot while in or out of the Buick. They were also corroborative of the testimony of the investigating officers and of the statement attributed to the appellant. They thus constituted properly admitted material evidence, and their possible prejudicial nature was an unavoidable incident which did not render them inadmissible. The same is true of the picture of Mrs. Mills and the bullet taken from her head. State v. Perkins, Mo., 382 S.W.2d 701, 704[6, 7]; State v. Luttrell, Mo., 366 S.W.2d 453, 461.
In Assignments 8 and 9 appellant complains that certain testimony, elicited from Officer Kenneth Edwards and Detective Richard Koenig, violated the rule against hearsay evidence. These witnesses testified that Koenig spoke with Judith and Roxanne Mills, daughters of Mrs. Mills, in the Glasgow Village home about 1:20 A.M. after the shootings at about 1:00 A.M Sometime later they went to appellant's place of business, the Cloverleaf Lounge. The testimony in question occurred as follows:
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The objections and motions relating to this testimony were coupled with reliance on State v. Chernick, Mo., 278 S.W.2d 741, and State v. Chernick, Mo., 280 S.W.2d 56. In those cases the defendant was the driver of the car used in a bank robbery. One of his coconspirators was arrested at the scene and the circuit attorney testified that he talked to the coconspirator and that after the conversation he put out an arrest order for the defendant. The court held that the testimony permitted a prejudicial inference that was based on hearsay which would have itself been inadmissible. The obvious reason for not applying the rule of State v. Chernick, supra, to this case lies in the equally obvious distinction between the cases. Chernick was harmed and prejudiced by the hearsay inference because his defense was that he had nothing to do with the crime charged and the testimony identified him, placed him at the scene, and connected him with the crime. In contrast, Aubuchon admitted that he was present at the scene of the shootings and that he shot both Sass and Mrs. Mills. He defended on self-defense and accident, neither of which defenses was affected by the complained-of testimony. Under such circumstances we find no reversible error.
Assignment 10 is that the court erred by commenting on the evidence during receipt of testimony from witness Mary Ellen Dillon. On direct examination the witness testified to several conversations she had with appellant relating to Sass and Mrs. Mills, one of which occurred at appellant's tavern in the presence of Penny Stephens, niece of the witness. We set out the testimony and events during which the alleged comment occurred:
'Q (By Mr. McSweeney): Did you have occasion to go to the Cloverleaf at any time with Miss Stephens? A Yes.
'Q Did you see defendant there on that occasion? A Yes.
'Q Did he make any statement with respect to Mr. Sass at that time? A Well, I can't think of it now.
'MR....
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