State v. Bennett

• Decision Date: 25 May 1928
• Docket Number: No. 28745.,28745.
• Citation: 6 S.W.2d 881
• Parties: STATE v. BENNETT.
• Court: Missouri Supreme Court

6 S.W.2d 881

STATE v. BENNETT.

No. 28745.

Supreme Court of Missouri, Division No. 2.

May 25, 1928.

Appeal from Circuit Court, Ripley County; Charles L. Ferguson, Judge.

J. W. Bennett was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Cope & Tedrick, of Poplar Bluff, for appellant.

North T. Gentry, Atty. Gen., and Hibbard C. Whitehill, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

On June 28, 1927, an information was filed in the circuit court of Ripley county, charging the appellant, J. W. Bennett, and George Williamson and Cecil Atchison with murder in the first degree in that on or about June 6, 1926, at said county, they had feloniously, etc., placed a deadly drug and poisonous substance known as "Rough on Rats," containing arsenic and other deadly drugs and poisons unknown to informant, in Ernest Van Patton's food, and caused the same to be administered to him and taken into his body, with intent to kill and murder the said Ernest Van Patton; that said Ernest Van Patton thereby became mortally sick of said poisons and died on said day. Bennett entered a plea of not guilty, was granted a severance, and on a trial to a jury a verdict was returned on November 18, 1927, finding him guilty of murder in the first degree as charged in the information, and assessing his punishment at imprisonment for life. He was sentenced accordingly and appealed.

It is insisted by the state that there is no record entry of the filing of defendant's bill of exceptions, and that it cannot be considered, citing section 4102, Laws of Missouri, 1925, p. 199; State v. Kaiser (Mo. Sup.) 300 S. W. 716; State v. Hall, 312 Mo. 425, 446, 279 S. W. 102; and other cases. They have no application.

Exceptions may be taken and bills of exceptions may be filed in criminal prosecutions in the same manner as provided by law in civil cases. Section 4039, R. S. 1919. Section 1460 provides that bills of exceptions in civil cases may be filed with the clerk of the court in vacation, if filed at any time before the appellant shall be required by the rules of the appellate courts, respectively, to serve his abstract of the record. It has been held that a bill filed after the term at which an action was tried will be considered, even though the record fails to show leave was granted to file it after the term. State ex rel. Conkling v. Sweaney, 270 Mo. 685, 195 S. W. 714; Forsythe v. Shryack-Thom Grocery Co., 283 Mo. 49, 223 S. W. 39, 10 A. L. R. 711. There is no merit in the contention.

Ernest Van Patton and his brother, Frank Van Patton, were old men, and lived by themselves in a house in the woods off the public highway, about 2 miles west of Briar Creek post office, which is about 9 miles west of Doniphan, the county seat of Ripley county. They had not been seen at the post office for 10 or 12 days when, on June 8, 1926, Henry Wheeler and another went to the Van Patton house. They found the body of Ernest Van Patton about 150 yards west of the house behind a log, partly decayed and torn up; his feet and hands had been eaten off. They found a human skull, leg bone, and some human hair about 30 steps from the house. They also found a man's working pantaloons in the kitchen, with $4 in the pockets. Frank Van Patton had not been seen nor heard of at the time of the trial.

When the defendant was arrested and committed to jail, he asserted his innocence. The evidence for the state is that on May 6, 1927, defendant made a voluntary statement to Joe Cochrane and others, which was taken down in shorthand, typewritten, read to defendant, and signed by him by his mark, attested by several witnesses, and sworn to before a notary public. In this he stated, in substance, that he and George Williamson and Cecil Atchison, on or about June 5, 1926, went to the Van Patton house to put poison in the food. The Van Pattons were out, and he and Williamson went into the house, and he saw Williamson put "Rough on Rats" in the flour and a saucer of ground coffee. They thought the Van Pattons had $1,500 or $2,000 hidden around the house and they would get the money after the poison took effect. After three days they went to the house and found Ernest on the east porch, dead, and Frank, dead, 150 or 200 yards west of the house in the woods. They searched the house, but found no money.

The defendant testified that he made no statement about poisoning the Van Pattons; that he did not go with Williamson or Atchison or any one else to the Van Pattons' house with rat poison or put it in their flour or coffee, nor did he see any one do it; that he was present at the Van Patton house at the inquest; that he was arrested by Joe Cochrane, and while in jail he signed by his mark some papers that Cochrane told him was a bond for his release; that he had no knowledge of the cause of Ernest Van Patton's or Frank Van Patton's death; that Cochrane came to the jail four or five times and tried to get him to say that George Williamson put poison in the Van Pattons' grub.

The court admitted the confession in evidence over the objection and exception of the defendant.

There was proof that "Rough on Rats" contains arsenic, an active poison; that one-half a grain of arsenic will kill. There was evidence for the defendant that his general reputation as a peaceable and law-abiding man was good. At the conclusion of the case the defendant tendered a demurrer to the evidence, which was overruled.

It is insisted that there was no evidence to support a conviction except defendant's uncorroborated extrajudicial confession, and that before this was admissible it was incumbent upon the state to prove the corpus delicti and that it failed to do so.

"It is a settled rule of criminal procedure that testimony of a confession of the crime charged, made...