State v. Baker

• Decision Date: 10 December 1912
• Parties: STATE v. BAKER.
• Court: Missouri Supreme Court

152 S.W. 46

246 Mo. 357

STATE v. BAKER.

Supreme Court of Missouri, Division No. 2.

December 10, 1912.

1. COURTS (§ 35) — JURISDICTION — PRESUMPTIONS.

Want of jurisdiction of a court of general jurisdiction must be affirmatively shown and will not be presumed from mere failure of the record to show jurisdiction.

2. CRIMINAL LAW (§ 1118) — QUESTIONS REVIEWABLE — DENIAL OF CONTINUANCE.

Where the bill of exceptions does not show an application for a continuance, but shows that accused announced ready when the case was called for trial, denial of a continuance is not reviewable.

3. CRIMINAL LAW (§ 354) — INSANITY — EVIDENCE — ADMISSIBILITY.

Evidence of insanity of collateral kindred is not relevant under the defense of insanity.

4. CRIMINAL LAW (§ 354) — INSANITY — EVIDENCE — ADMISSIBILITY.

Where, in support of the defense of insanity, the evidence shows that accused's aunt was adjudged insane, other evidence on that subject was unnecessary.

5. CRIMINAL LAW (§ 1170) — HARMLESS ERROR — ERRONEOUS EXCLUSION OF EVIDENCE.

Where a nonexpert testified to facts indicating that a person was insane, the exclusion of the opinion of the witness that such person was insane was not prejudicial.

6. CRIMINAL LAW (§ 1170) — EVIDENCE — INSANITY.

Where the evidence showed that a grandfather of accused relying on the defense of insanity, was married and had children, and died at 80 or 90 years of age, and that for a number of years before his death his mind failed, the exclusion of evidence as to the family tradition that the grandfather's mind had been bad for years, and that towards the last he lost his mind and had to be taken care of, was not prejudicial to accused.

7. CRIMINAL LAW (§ 823) — INSTRUCTIONS — MISLEADING INSTRUCTIONS.

An instruction that, if accused by the means charged in the "indictment" and explained by instructions killed decedent, he should be found guilty of murder or manslaughter, was not objectionable for using the word "indictment" instead of the word "information," where other instructions properly distinguished between the different degrees of the offense charged in the information charging murder in the first degree.

8. HOMICIDE (§ 340) — EVIDENCE — MANSLAUGHTER.

Where there was no pretense of any provocation or justification or excuse in the case, and the jury found that accused was sane at the time he shot decedent, the issue of manslaughter was not in the case, and accused convicted of murder in the second degree could not complain of an instruction on manslaughter.

9. CRIMINAL LAW (§ 1171) — IMPROPER ARGUMENT OF PROSECUTING ATTORNEY — REFERENCE TO FAILURE OF ACCUSED TO TESTIFY — EFFECT.

Where a conviction would have been reached without the improper argument of the prosecuting attorney referring to the failure of accused to testify, the misconduct of the prosecuting attorney was not ground for a reversal, especially where the language was withdrawn

by him and the court directed the jury to disregard the language.

10. CRIMINAL LAW (§ 1171) — IMPROPER ARGUMENT OF PROSECUTING ATTORNEY — EFFECT.

Where the evidence established the guilt of accused, the misconduct of the state's attorney, in his argument, in calling God to witness the sincerity of his belief in the guilt of accused, was not ground for reversal.

11. JURY (§ 106) — QUALIFICATION OF JURORS — BIAS.

A juror, who states on his voir dire that he is unfavorable to the defense of insanity which will be relied on, and who has prejudice against a bogus defense of insanity, but who will try the case according to the evidence and the instructions, is a competent juror.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

E. M. Baker was convicted of murder in the second degree, and he appeals. Affirmed.

Under an information charging murder in the first degree, the defendant was convicted of murder in the second degree and sentenced to 15 years in the penitentiary, and has appealed.

The defense was insanity. The evidence for the state tended to show a strong case of "wine and woman." Prior to his acquaintance with deceased, the defendant was an apparently prosperous contractor and builder in Kansas City. He had a family consisting of a wife and three children, of whom a son and daughter were grown. The son was married and worked with the father. The two daughters were at home. Defendant was attached to his home and family. He lived in a house belonging to the wife. It was incumbered. About four years before the trial, he met Ruby Hirsch, the deceased, who was about 18 years old, and illicit relations between them began at once. He became infatuated with her, and, according to his statement, gave her $40 or $50 a month. When his bounty slackened, she threatened him that she would reveal the situation to his wife. She sued him for $8,000 as damages for an assault. He had the house where she lived raided by the police, and she was fined $25 as an inmate of a bawdyhouse. The suit against him was then dismissed for want of prosecution. Their relations continued. He became more and more addicted to liquor. His business, to a large extent, left him, or was neglected. He borrowed small sums of money to satisfy her demands, and suspected her of using the money he gave her in keeping up other men. She went on a visit to Topeka. He sent her $10 to pay her expenses home. When she arrived in Kansas City, at his request, she made an appointment to meet him, and failed to keep it.

The evidence for the state was to the effect that he corresponded with her through a saloon, and that on the night of the killing he put a pistol in his pocket, went by the saloon, got one or more drinks, and went to the flat occupied by Ruby Hirsch and her mother.

A witness, Emil Myer, testified: "That, when defendant reached the Hirsch home, the witness had been there about two hours, and had gone into the bathroom adjoining the front room, when the defendant called. That the bathroom door was slightly open. That the defendant, on coming into the front room, said to Ruby, "You done me dirty," and she said: "No, I didn't. Mama wanted me to stay here." That defendant said, "Where's that ten I sent you?" She said, "If that is what you want, I will get that for you and you can go." That then defendant pulled a pistol from his pocket and fired at her five times. She fell unconscious and was taken to the general hospital, where she died the following night of her wounds.

The defendant, in a statement made by him the morning after the killing and while under arrest, said that he remembered putting the pistol in his pocket and taking a drink at Riddle's saloon the night before, but that he did not remember what occurred after that.

The mother of Ruby Hirsch testified that she was on the back porch and heard a shot fired and heard Ruby scream, then heard four more shots, and when witness got into the front room she saw Ruby lying on the floor and the defendant standing over her, pointing the pistol at her. She did not remember what was said by either her or the defendant. The witness ran out calling her other daughter and left defendant standing there. When she got back, the defendant was gone. About 4 o'clock the next morning he passed across from the opposite side of the street to his house, barefoot and hatless, in his shirt sleeves, and was arrested by the officers who were waiting for him. His discarded clothing was found a few blocks away between the sidewalk and the street in the weeds which were mashed down and "looked like he had been wallowing around there."

The defendant was born in Scotland county, Mo., and lived there until about 13 years of age, going with his family in 1878 to the vicinity of Phillipsburg, Kan., where the family lived on a farm. He was badly afficted with asthma until he left Missouri, and had frequent spells of suffocation on account of that affliction, and was known to wake at night and try to climb the walls of the room. His asthma disappeared after he went to Kansas; but the evidence of his brothers and sisters showed that he had spells of melancholy, and was weak and unable to work for a large part of the time while in Kansas. His mother, according to the evidence of the family and relations, was weak and nervous, and died of paralysis at the age of 46. By reason of the paralytic stroke she was bedridden for two years. She had asthma all her life and was a great sufferer from it. She had spells of smothering and of sick headache every few days. She would at some of those times say, "You children don't look right to me." She was mentally all right when she did not have those choking spells. While in such condition she was conscious but could not talk. One of her sons, John, testified that she was nervous and had heart trouble and smothering spells in which she would pass away just like somebody dying, and would come to with a grip and jerking, with eyes set back like a dead person, and her mind would wander, and she would say, "This is not my home." A nephew of hers testified that she was "weakly, nervous, excited, and broke down." Defendant's father died at about 80 years of age, having been paralyzed about seven years. One of his sons and a daughter testified that prior to his paralysis he was a robust, strong man. The daughter said that he had a fainting spell once while chopping sunflowers out of the corn.

The defendant had two sisters and three brothers who lived to be grown. All were afflicted with asthma in their childhood; the most of them getting better of it as time went by. Albert, one of the brothers, died at the age of 40; some of the witnesses saying that he died of asthma, and others that he died of consumption. John, another brother of defendant, lives in Oklahoma. He testified that he had one hard spell of asthma after going to Kansas, and that it still affects his heart, and that it appears like it is going to stop beating. Another brother of defendant, W. F. Baker, 56 years old, was a...