State v. Baxter

• Decision Date: 07 July 1939
• Docket Number: 36436
• Citation: 130 S.W.2d 584,344 Mo. 1034
• Parties: The State v. Isom Baxter, Appellant
• Court: Missouri Supreme Court

130 S.W.2d 584

344 Mo. 1034

The State v. Isom Baxter, Appellant

No. 36436

Supreme Court of Missouri

July 7, 1939

Appeal from New Madrid Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

Corbett & Peal for appellant.

(1) The court erred in admitting, over the objections and exceptions of the defendant the alleged dying declaration of Leroy Johnson as testified to by the witness, Charley Hurley, the evidence showing that at the time Leroy Johnson gave the purported dying declaration that he had not abandoned all hope of recovery, and having expressed such hope in his only coherent statement made to Dr. Speer, his attending physician, in the statement, "Pray that I may live," such purported dying declaration was not entitled to be clothed with the sanctity of an oath, and therefore was nothing more than mere hearsay testimony and inadmissible in evidence. State v. Turlington, 102 Mo. 656; State v. Colvin, 226 Mo. 481; State v Johnson, 118 Mo. 491; State v. Peak, 292 Mo 249; State v. Dominique, 30 Mo. 585; State v. Simon, 50 Mo. 370. (2) The court erred in giving of its own motion Instructions 1 to 8, inclusive, because there was not sufficient, competent and credible evidence in the case on which to predicate said instructions, and erred in failing to instruct the jury that the State had failed to make out a case as requested by the defendant at the close of all the evidence in the case. If, as we have seen, the alleged dying declaration testified to by the witness Hurley was incompetent, then there was no sufficient evidence to submit the case to the jury and the Instructions 1 to 8 inclusive, should not have been given and defendant's instruction in the nature of a demurrer to the evidence should have been given, and this is an error which can be corrected on appeal. State v. Johnson, 118 Mo. 504; State v. Simon, 50 Mo. 375. (3) The court erred in refusing defendant's Instruction B, in which the defendant requested the court to instruct the jury that under the law of the case the jury could not consider the alleged dying declaration of Leroy Johnson testified to by Charley Hurley. Charley Hurley would not say whether Leroy Johnson, before making the statement in the purported dying declaration, expressed any hope of recovery, and Dr. Speer testified that Leroy Johnson was in a dying condition and incapable of making a coherent statement during the time that he is supposed to have talked to Charley Hurley, and that the only statement Leroy Johnson made that indicated he was conscious, was "Pray that I may live." State v. Johnson, 118 Mo. 491; State v. Peak, 292 Mo. 249; State v. Dominique, 30 Mo. 585; State v. Simon, 50 Mo. 370; State v. Turlington, 102 Mo. 656; State v. Colvin, 226 Mo. 481. (4) The court erred in overruling the defendant's oral motion to strike out the evidence of Charley Hurley as to the alleged dying declaration testified to by him as having been made by Leroy Johnson, after it had appeared in evidence on the part of Dr. Speer that Leroy Johnson was in a dying condition, unconscious and incapable of making a coherent statement, and erred in refusing to instruct the jury to disregard the same. State v. Johnson, 118 Mo. 491; State v. Peak, 192 Mo. 249; State v. Dominique, 30 Mo. 585; State v. Simon, 50 Mo. 370; State v. Turlington, 102 Mo. 656; State v. Colvin, 226 Mo. 481.

Roy McKittrick, Attorney General, and Lawrence L. Bradley , Assistant Attorney General, for respondent.

(1) The court did not err in admitting the dying declarations. State v. Flinn, 96 S.W.2d 506; State v. Custer, 80 S.W.2d 176, 336 Mo. 514; State v. Kelleher, 100 S.W. 470, 201 Mo. 614. (2) The court did not err in admitting excerpts from the transcript of the testimony of witnesses taken at the preliminary hearing. State v. Kernek, 7 S.W.2d 432; Secs. 3480, 3489, Mo. Stat. Ann., pp. 3115, 3118; State v. Diller, 170 Mo. 1. (3) Assignment 4 of the motion for new trial is insufficient to preserve anything for review. State v. Kaner, 93 S.W.2d 671, 338 Mo. 972. (4) The court did not err in refusing to sustain the motion for new trial on the basis of any affidavits filed impeaching the witness, Charles Hurley. State v. Vinson, 107 S.W.2d 16; State v. Taylor, 18 S.W.2d 474, 323 Mo. 15; State v. Hohensee, 62 S.W.2d 436, 333 Mo. 161; State v. McPhearson, 92 S.W.2d 129; State v. Grant, 98 S.W.2d 761. (5) The information is sufficient and in proper form. State v. Frazier, 98 S.W.2d 707, 339 Mo. 966; State v. Long, 253 S.W. 729; State v. Bacey, 267 S.W. 809.

OPINION

Ellison, P. J.

The appellant was convicted of manslaughter in the Circuit Court of New Madrid County, on change of venue from Pemiscot County, for stabbing and killing Leroy Johnson, a young man about twenty-one years old. The punishment assessed by the jury was two years' imprisonment in the penitentiary. The assignments of error in his brief all face toward one proposition -- that an alleged dying declaration of the deceased, testified to by a witness named Charles Hurley, was improperly admitted in evidence because there was not a sufficient showing that it was made in view of impending death. It is urged that eliminating the dying declaration the State failed to make a case for the jury; and that the trial court erred in refusing to sustain his motion for a new trial on the ground of newly discovered evidence, this being disclosed by the affidavits of three witnesses tending to impeach Hurley's testimony concerning the dying declaration.

The homicide was committed on Christmas Eve, 1936, at a dance hall in Pemiscot County. The deceased Johnson and Howard Sigert, a son-in-law of the appellant, had engaged in a fight. Appellant seized Sigert's arms from behind and there was some testimony that another man held Johnson, thereby separating them. The testimony for the defense was that Johnson either was not thus restrained by the other man or that he freed himself -- at any rate that he advanced toward Sigert and struck him while Sigert's arms were being held by appellant. Some of the people cried "turn him loose," whereupon appellant released Sigert who started forward to resume the fight. The State's evidence from several witnesses was that without any such threatening demonstration and assault on the part of Johnson, appellant released Sigert saying "Get him, Howard." Sigert lunged toward Johnson with an opened pocket knife in his hand according to some of the witnesses, with a beer bottle according to others, and without anything except his doubled fist according to still others.

He struck Johnson who fell into a small booth alcove or recess in the wall where the view was obscured because it was poorly lighted and some beer cases were stored there. Sigert followed Johnson into the booth and stabbed him several times, coming out with the bloody knife in his hand. The attending physician, Dr. A. J. Speer of Deering found Johnson had ten stab wounds in the left side of the chest, both anterior and posterior. These bled profusely. The location and nature of the wounds were such as to warrant an inference that they were made by one person with a pocket knife. Four of them were fatal. Two penetrated close to the spine, one was in the region of the kidney, and three entered the lung permitting air to pass out in breathing. There was nothing to indicate the wounded man had been drinking intoxicants. The doctor stayed with the patient 15 or 20 minutes and told the family there was no hope of recover. He was then taken to a hospital in Blytheville, Arkansas, where he died in about five or six hours.

One witness for the State, Doyne Huey, said appellant also went into the booth, or rather that he saw appellant coming out of one end of the booth with Sigert whereas Johnson came out the other end, staggering. This was the only testimony from a third party witness putting appellant at the exact spot where the fatal stabbing occured. Several witnesses impeached Huey by testifying he was not in the dance hall when the assault was committed but in an adjoining room where he could not have seen it. The appellant declared he did not go into the booth during the fight and in this was corroborated by two or three witnesses. His general reputation for peace and as a law-abiding citizen was attested by several witnesses. No witness saw the appellant actually participating in the fight. So, unless the jury were entitled to draw the inference that appellant took part in the fight from the testimony that he released his restraining hold on Howard Sigert, who did the actual stabbing, and said "Go get him, Howard," coupled with the testimony of the witness Huey that he saw appellant come out of the booth with Sigert just after the stabbing -- unless this evidence was sufficient, we say, it was vital to the State's case that further proof connecting appellant with the fatal assault be furnished by the deceased Johnson's alleged dying declaration. Was the evidence sufficient to justify the introduction of the latter?

Bearing on that point the same State's witness, Doyne Huey testified he assisted Johnson out of the dance hall and as they had about reached the door Mrs. Baxter, appellant's wife, kicked Johnson. This witness said he walked part way with Johnson toward the latter's home when Johnson "said he was dying and told me to lay him down and get a doctor." Being asked again what Johnson said, the witness quoted him: "I am dying, they have killed me." Johnson did not say who "they" were, and did not specifically accuse appellant. The witness left to get a conveyance, and as he was departing saw some boys pick up Johnson and carry him to his home, which was about one-fourth mile from the dance hall. This was about midnight. Another witness, Odie Goodman, speaking of the time when...