State v. Bass

• Decision Date: 02 June 1913
• Citation: 157 S.W. 782
• Parties: STATE v. BASS.
• Court: Missouri Supreme Court

157 S.W. 782

STATE v. BASS.

Supreme Court of Missouri.

June 2, 1913.

1. CRIMINAL LAW (§ 388) — EVIDENCE — EXPERIMENTS.

In a prosecution for homicide, where the theory of the defense was that shot found in the body of the deceased, which had been burned in the fire which destroyed her house, were the result of the explosion of shotgun shells stored in the house, evidence of the effect of shells exploded by fire as an experiment is inadmissible, where there is no testimony that the shells were the same kind, or that the other conditions were similar to those under the defense claimed the shells in the house were exploded.

2. CRIMINAL LAW (§§ 464, 488) — EVIDENCE — EXPERIMENTS — EXPERT WITNESSES.

An expert may, but a nonexpert witness may not, testify as to experiments made under circumstances as nearly like those in the concrete case as possible.

3. CRIMINAL LAW (§ 388) — EVIDENCE — EXPERIMENTS — CAUTION.

Evidence based on experiments should be received in a prosecution for crime with great caution.

4. CRIMINAL LAW (§ 388) — EVIDENCE — EXPERIMENTS — FOUNDATION.

Where there is no evidence in a prosecution for homicide as to the presence of coal oil on the premises, experiments as to the effect of an explosion of coal oil when confined in a can is inadmissible.

5. HOMICIDE (§ 166) — EVIDENCE — MOTIVE.

Where a man was charged with killing his wife, evidence that some time previous, while they were living apart, he stated that unless his wife permitted him to see his children he would get a gun and see them, was not admissible to show motive, where the defendant and his wife had become reconciled and were living together at the time of the alleged homicide.

6. CRIMINAL LAW (§ 741) — APPEAL — REVIEW — LACK OF MATERIAL EVIDENCE.

While the court cannot set aside a verdict where there is a conflict in the material testimony if there is an absence of substantial evidence to convict, the question is one of law.

7. HOMICIDE (§ 228) — "CORPUS DELICTI" — EVIDENCE.

In a prosecution for homicide, the "corpus delicti" consists, first, in the proof that the deceased died from the effects of a wound, and second, that the wound was unlawfully inflicted by accused.

8. HOMICIDE (§§ 233, 236) — EVIDENCE — SUFFICIENCY.

Evidence, in a prosecution for wife murder, held insufficient to show that the death was due to a wrongful act, or that defendant had any motive for killing his wife.

9. HOMICIDE (§ 144) — EVIDENCE — MOTIVE — MATERIALITY.

While the existence of motive is not material, where the guilt of defendant is clearly established, it is material when the corpus delicti is not fully proved.

In Banc. Appeal from Criminal Court, Greene County; Alfred Page, Judge.

A. J. Bass was convicted of murder in the first degree, and he appeals. Reversed and defendant discharged.

The prosecuting attorney of Greene county at the March term, 1911, of the criminal

court of said county, filed an information charging the defendant with murder in the first degree in having shot his wife to death with a shotgun at their home on the morning of January 24, 1911. Upon a trial defendant was convicted of murder in the first degree and his punishment assessed at imprisonment in the penitentiary for life.

The defendant with his family, consisting of his wife and two small children, the elder under the age of five years, occupied a frame dwelling on the County road near the town of Bassville, Greene county. The dwelling consisted of three rooms downstairs and one partitioned off upstairs; two other upstairs rooms being simply floored but otherwise unfinished and separated from each other only by open studding. A brick flue ran up through the center of the building, and a narrow inclosed stairway from the first to the second story ran alongside the flue. Defendant was very poor, of humble station, ignorant, and of a low order of mentality. His vocation consisted in doing day's labor at whatever he could turn his hand. Like many of his class found in certain country districts, he was addicted to hunting such small game as rabbits and partridges, and in consequence of this habit was possessed of a shotgun.

About 4 or 5 o'clock of the morning of January 24, 1911, persons living in the same neighborhood as defendant were aroused by his hallooing as he ran up and down the road that his house was on fire, and that everything was burning up; the neighbors responded to his call, and upon arriving at the scene found the upper part of the building in flames to such an extent that it was impossible to get upstairs. Several persons went into the lower rooms and carried out different articles of household furniture. It appears that the defendant, after having aroused the neighbors, ran back to his home, where those arriving found him apparently in great distress standing near or leaning on a hack or old vehicle in which were his little children covered up with bedclothes, the shotgun also being in the hack. Upon being asked where his wife was, defendant said in a hysterical manner he knew, or he was sure, she was in the burning building. After the flue fell, such portions of her body as had not been entirely consumed by the fire were seen lying on the ruins of the flue. Her limbs were almost entirely burned off, as well as her head; the trunk of her body being very badly burned and charred. While the house was burning, frequent reports were heard as of gunshots, which were explained to have been the discharge of cartridges which defendant said he had kept to the number of 1,200, or 1,500 for the purpose of sale as well as for use in his shotgun. These cartridges were said to have been on the steps of the stairway leading to the upper rooms and in a large earthen churn which stood immediately under the upper part or head of the stairway. Among other testimony introduced on behalf of the state, it was shown that the defendant the afternoon before the fire had gone out hunting and had killed two or three rabbits which he had taken to a country store near by and sold, and with the proceeds had bought a small quantity of coal oil; that he also bought at the same time, with cash his father had paid him for a day's wages, a 25-pound sack of flour, a can of baking powder, and some candy for the children. A witness named Russell Bass assisted the defendant in carrying the goods purchased part of the way towards his home, when he was met by his wife and children, his wife taking the coal oil can, one of the children the baking powder can, and the smaller one the candy. When they reached their home, the wife at once filled two lamps with coal oil, and a lantern which was used by the husband to give light at the wood pile while he cut up wood for the kitchen stove to enable her to cook supper. The filling of the lamps and the lantern took, defendant says, nearly all the oil he had bought.

The testimony as to what occurred after defendant met his wife and children as he was on his way home from the store, and after he reached home, is confined wholly to his statements. He says it was his purpose the next day to go to work for his father, who lived in the neighborhood, and he and his wife talked the matter over after they had eaten supper, and agreed that it was best for her and the children to go with him and stay at his father's while he was employed there; that they retired early, all sleeping in one bed; that he was awakened some time between 12 and 3 o'clock by the barking of neighbors' dogs, when he arose and placed a stick of wood on the fire and went back to bed; he went to sleep at once and heard nothing more until some time between 4 and 5 o'clock in the morning, when he was awakened by his wife calling him to get up that the house was on fire. He arose hastily, put on a portion of his clothing, and he and his wife carried the children out and put them in the old hack, which stood some distance from the building, taking out some bedclothes to wrap them in. They then drew some water from the well with which to put out the fire, and worked together in their efforts to accomplish this and thought they had gotten it under control, when the defendant went upstairs and discovered it had broken out afresh. He and his wife then drew more water from the well, put it in a tub, and carried it upstairs, and threw it on the fire. Finding their efforts unavailing, and that it was dangerous to remain longer upstairs on account of the fire and suffocating smoke, the defendant called to his wife and told her they had better get out of the building, and for her to follow him. That the steam from the water and smoke from the fire had become so dense he could not see his wife, but knew she was near him when he called to her. That he ran to a window and either raised it or kicked it out, he doesn't remember which, and let himself down to the ground, it being his intention to pull the hack up under the window so that his wife might jump out on the feather bed which they had carried out and placed in the hack. That the fall to the ground rendered him partially unconscious for a few minutes, and when he came to himself he ran to the neighbors to give the alarm, not knowing whether his wife had escaped from the building or not. His testimony as to what he did thereafter is in a measure corroborated by the neighbors who were aroused by his cries for help. He says he first went to the house of a neighbor named Davis, and appealed to him to come and help him, and then ran to the house of an uncle, Sampson Bass, and hallooed that his house was on fire and to come and help him put it out. Others heard his cries and rushed to the scene. He then ran back to the house and found his little children crying and that he was so exhausted and overcome he could do nothing except stay with the children and lean on the hack for support. The witnesses all testified that his cries for help were those of one in distress, and that he evinced great excitement. When asked by Davis where his...