State v. Baublits

• Decision Date: 07 April 1930
• Docket Number: No. 30168.,30168.
• Citation: 27 S.W.2d 16
• Parties: THE STATE v. LOREN BAUBLITS, Appellant.
• Court: Missouri Supreme Court

27 S.W.2d 16

THE STATE v. LOREN BAUBLITS, Appellant.

No. 30168.

Supreme Court of Missouri, Division No. 2.

April 7, 1930.

Appeal from Gentry Circuit Court. — Hon. D.D. Reeves, Judge.

REVERSED AND REMANDED.

A.F. Harvey, DuBois & Miller and Shinabargar, Blagg & Livengood for appellant.

(1) A verdict of manslaughter under the information would necessarily be a special verdict, which must set out all of the elements necessary to constitute the crime, as found by the jury. State v. Modlin, 197 Mo. 376; State v. Griffin, 228 S.W. (Mo.) 802; State v. Griffin, 278 Mo. 436, 212 S.W. 878; State v. Miller, 255 Mo. 231; State v. Reeves, 276 Mo. 352; State v. Dargatz, 244 Mo. 228; State v. Pierce, 136 Mo. 34; State v. DeWitt, 186 Mo. 67; State v. Rowe, 142 Mo. 439; State v. Hinton, 299 Mo. 507. (2) The court erred in permitting the prosecuting attorney to prove by Anna Burchett, widow of the deceased, the number and ages of their children. This would constitute sufficient error to reverse even a civil case. Such evidence is calculated to inflame and prejudice the jury against defendant and cause an unauthorized conviction and excessive and unwarranted punishment. Dayharsh v. Ry. Co., 103 Mo. 577; Stephens v. Ry. Co., 96 Mo. 207; Mahaney v. Ry. Co., 108 Mo. 191; Edwards v. Smith, 286 S.W. (Mo. App.) 431; Hutchcraft v. Gas Light Co., 282 S.W. 45. (3) The court erred in striking out the testimony of defendant's witness, Ira Munsey, to the effect that a few days prior to the occurrence in question Henry Burchett, with his shotgun lying across his arm at the time said: "That's all the license I need. Some son-of-a-bitch will get the contents of both barrels before he gets me," which was stricken out over the objection and exception of defendant, for the reason that said evidence would show that Henry Burchett did not have a 1928 hunting license and did not intend to get such license; that at the time of the occurrence he was fleeing from the officers across the wheat field and that such evidence would impeach the testimony of the State's witness, Allen Lofton, who denied such conversation. (a) Uncommunicated threats are admissible to throw light on conduct of deceased. State v. Burns, 278 Mo. 441; State v. Edwards, 203 Mo. 529. (b) The conversation was admissible for the purpose of impeaching State's witness, Lofton. Hartman v. Fleming, 264 S.W. 873; Carroll v. Young, 267 S.W. 436; Swinehart v. Rys. Co., 233 S.W. 59; Deubler v. Rys. Co., 187 S.W. 813; State v. Wicker, 222 S.W. 1014; State v. Burgess, 259 Mo. 383. (4) The court erred in excluding the testimony of the witnesses, Joseph E. Reece, Guy R. Mercer and Roy Mayes, experts, and defendant's offer of proof of the testimony of said witnesses as to the experiments made by them in shooting with a pistol, duplicate in kind and character and shooting qualities as the one used by Loren Baublits on the occasion in question, at a distance and elevation the same as that shown by the defendant to be the distance and elevation at which the third shot, in question here, was fired, all other conditions being the same as at the time of the firing of the third shot. State v. Bass, 251 Mo. 120; Riggs v. Railroad, 216 Mo. 304; Griggs v. Ry. Co., 228 S.W. (Mo.) 512; Holzmer v. Ry. Co., 261 Mo. 379, 411. (5) The court erred in giving to the jury Instruction 4a, relating to and commenting on statements alleged to have been made by the defendant after the alleged offense, for the reason that said instruction is an unwarranted comment on the evidence. It singles out and gives undue prominence to the testimony of the witnesses for the State, Allen Lofton, Guy A. Johnson, Gordon Burchett, John Rasco and Lowell Campbell, and assumes that their testimony was true. It authorizes the conviction of defendant on a presumption of law. It reflects upon and belittles the testimony of the defendant and any parts of the statements testified to by the witnesses that would be favorable to the defendant. It imports verity to any statement proven against defendant. (6) The court erred in giving Instruction 10. (a) It ignores the defense of accident, which in this instruction should have come under the term "excusable homicide," the definition of which as set out in this instruction is so imperfect and misleading as to be wholly insufficient and prejudicial error. State v. Hall, 7 S.W. (2d) 1005; State v. Hersh, 296 S.W. 435; State v. Ball, 262 S.W. 1046; State v. Cole, 304 Mo. 105; State v. Edelen, 228 Mo. 160; State v. Shields, 246 S.W. 936; State v. Murphy, 292 Mo. 275; State v. Finkelstein, 269 Mo. 612; State v. Evans, 183 S.W. (Mo.) 1066. (b) It is based on simple negligence and directs a verdict against defendant for manslaughter while the information charges only an intentional killing. Proof and a verdict of guilty based on negligence, is erroneous and prejudicial error against defendant on the information. (c) It is erroneous in that it incorrectly defines culpable negligence as applicable to this case, leaving out the element of criminal, intent. It defines manslaughter and purports to define criminal or culpable negligence and then directs a verdict of guilty against defendant based only on defendant knowingly, negligently and carelessly shooting in the direction of and hitting deceased. The instruction permits a verdict of guilty against defendant based on simple negligence and carelessness without requiring criminal or culpable negligence. Sec. 3234, R.S. 1919; Sec. 22, Art. 2, Mo. Const.; State v. Lockwood, 119 Mo. 463; State v. Hancock, 7 S.W. (2d) 273; State v. Hinton, 299 Mo. 507; 253 S.W. 723; State v. Jamerson, 252 S.W. 685; State v. Bowman, 247 S.W. 146; State v. Barnes, 281 Mo. 514, 220 S.W. 848; State v. Burgess, 268 Mo. 417; State v. Wade, 267 Mo. 256; State v. Timeus, 232 Mo. 177.

Stratton Shartel, Attorney-General, and A.M. Meyer, Assistant Attorney-General, for respondent; L. Cunningham of Counsel.

(1) The verdict is in proper form and in accordance with the charge embraced in the information. State v. Emery, 78 Mo. 77; State v. Beckham, 267 S.W. 817; State v. Renfro, 279 S.W. 702; State v. Scheufler, 285 S.W. 419. (2) The instruction given in regard to culpable negligence correctly states the law. State v. Emery, 78 Mo. 77; State v. Weisman, 256 S.W. 740; State v. Pauly, 267 S.W. 799; State v. Millin, 300 S.W. 694. (3) The evidence of the number of children in the family of the deceased was merely preliminary, and even if erroneous, could not have prejudiced the rights of the appellant nor contributed to his conviction or punishment. The defendant in a criminal case may surround himself and exhibit all the members of his family to the jury which, no doubt, in some instances, may at least influence the severity of the punishment. (4) It was immaterial whether the deceased had a 1928 hunting license or not. The appellant made no claim that he had informed or attempted to inform the deceased that he desired to inspect his hunting license, or that he was attempting to arrest him. The exclusion of what the deceased may have said to Ira Munsey some two weeks before the fatal shooting, could not be erroneous. The appellant made no claim of self-defense, and where the accused does not rely on self-defense, neither communicated nor uncommunicated threats are admissible. State v. Ilgenfritz, 263 Mo. 615. The evidence was not admissible to impeach Allen Lofton because upon an immaterial matter, and for the further reason that it was not a statement made by the witness Lofton. (5) The theory of the appellant seems to be that although he intentionally shot at and towards the deceased because of the great distance between them, it was an accident that he hit and killed him. The appellant testified in his own behalf that he intentionally pulled the trigger and fired the revolver. The question in this case was how the pistol did shoot, not how a similar pistol would shoot in some experiments conducted by experts or non-experts. The result of the firing of the shot was the death of the deceased, and no light could be thrown upon the result by the opinion of experts of what results might occur in experiments conducted by them. The evidence of purported experts offered by the appellant was properly excluded, even under the authority of State v. Bass, 251 Mo. 107, cited by the appellant. (6) Instruction 4a follows a long line of precedents. State v. Adams, 289 S.W. 948; State v. Johnson, 316 Mo. 86, 289 S.W. 847; State v. Hamilton, 304 Mo. 19, 263 S.W. 127; State v. Haynes, 262 S.W. 1034; State v. Davis, 268 S.W. 44. (7) Instruction 10 is in approved form and correctly declares the law applicable to the case under the evidence of the appellant. The evidence shows that the offense committed was murder in the second degree unless it be reduced to manslaughter by the testimony of the defendant himself, and his testimony authorizes the instruction on culpable negligence, that he intentionally pulled the trigger and fired the pistol in the direction in which the deceased was going. The intentional firing of the shot was sufficient to make the crime manslaughter, although the appellant had no intention of hitting the deceased. State v. Yates, 256 S.W. 809, 301 Mo. 255. The instruction follows that given in: State v. Weisman, 256 S.W. 740; State v. Haines, 160 Mo. 555; State v. Millin, 300 S.W. 694; State v. Pauly, 267 S.W. 799.

DAVIS, C.

Defendant was charged with killing Henry Burchett on January 22, 1928, in Nodaway County. He was afforded a preliminary hearing and waived it. Thereupon the prosecuting attorney filed an information in the circuit court charging him with murder in the second degree. After a continuance given him, defendant was granted, upon application, a change of venue. The cause was sent to Gentry County for trial. On a trial there to a jury he was convicted of manslaughter and his punishment assessed at seven years in the penitentiary. The trial court overruled his motion...