State v. Bennett

• Citation: 87 S.W.2d 159
• Decision Date: 05 November 1935
• Docket Number: No. 34069.,34069.
• Parties: STATE v. BENNETT.
• Court: United States State Supreme Court of Missouri

87 S.W.2d 159

STATE v. BENNETT.

No. 34069.

Supreme Court of Missouri, Division No. 2.

November 5, 1935.

Appeal from Circuit Court, Barry County; Emory E. Smith, Judge.

Albert Bennett was convicted of manslaughter, and he appeals.

Affirmed.

J. S. Davis, Gene Frost, and Royle Ellis, all of Cassville, for appellant.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.

TIPTON, Presiding Judge.

In the circuit court of Barry county, Mo., the appellant was convicted of manslaughter and sentenced to two years' imprisonment in the State Penitentiary. He has duly appealed from the judgment of that court.

The appellant lived near Flat Creek, Barry county, Mo., with his family, which consisted of his wife, three sons, Dale, Doss, Doyle, the deceased, and a daughter. Dean Bennett. On the morning of June 24, 1933, the appellant, Mrs. Bennett, Dale, the deceased, and Wallace Foster were eating breakfast on the back porch of the house. It appears that the appellant had sold some of his hogs and a calf belonging to the deceased. The deceased asked the appellant for his part of the money, to which request the father stated that he had not cashed the check. An argument occurred, and the deceased told his father that he would get the money or "there would be hell to pay." The appellant ordered the deceased away from the table. The deceased then raised up with a case or table knife in his hand and began hitting at the appellant with the knife. The two clinched and fell from the porch. After the fall the appellant was on top of the deceased and began hitting him in the face with a rock.

Mrs. Bennett tried to stop the fight, but the appellant told her to get away; that he was going to kill him. The deceased said to the appellant, "Dad, if you will let me up I will leave and you can have the cows." The appellant then got up, obtained a hoe, and struck the deceased on the head near the ear. He was helped by his mother to a bed which was under a tree in the yard. Dr. Kerr was called and treated the deceased. The doctor found an injury to the left ear, and testified that in his opinion the skull was fractured. On June 26, or 27, the doctor saw the deceased at his office and found that he was in a bad condition. On June 30, he again saw deceased at his home and testified that in his opinion he had septic meningitis and was in a dying condition, and he died a day or two later. Dr. Kerr testified that there was a fluid oozing from the brain out through the skull and in his opinion death was caused by septic meningitis resulting from the injury to his skull.

The evidence on behalf of the appellant tended to show that Dr. Kerr's diagnosis was not correct, and also that the death of the deceased was not brought about as a result of the fight, but by the deceased's own misconduct regarding his health.

I. The appellant first contends that his demurrer to the evidence should have been sustained. On direct examination, Dr. Kerr testified that death was caused by septic meningitis which resulted from a skull fracture. The appellant contends that this testimony was completely impeached by his statements on cross-examination.

In the case of State v. Huff, 161 Mo. 459, loc. cit. 487, 61 S. W. 900, 908, 1104, we said: "Testimony completely impeached is no testimony at all, and rests on the same basis, in legal contemplation, as though no testimony had been introduced; And, when such a case occurs, relief will be granted by this court." We have followed this rule of law in the following cases: State v. Prendible, 165 Mo. 329, 353, 65 S. W. 559, 566; State v. Welton (Mo. Sup.) 225 S. W. 965, and State v. Liston, 315 Mo. 1305, 294 S. W. 45.

We do not believe Dr. Kerr's testimony comes within the above rule of law. The material parts of his cross-examination are as follows:

"Q. If this boy got better and happened to walk around and made the trip down to the creek down the steep bank came back and made the trip up this hill and up towards the school house, I will ask you if that alone might not set up infection to cause this meningitis? A. I don't know.

"Q. Don't you know, Doctor, that meningitis cannot get into the brain from an outside wound? A. I know it can when the skull is fractured.

"Q. You wouldn't tell this jury under oath that this meningitis got in through this boy's ear? A. I would testify it was my opinion. * * * Whether I would say that this meningitis went in through this boy's ear — that is a matter of opinion, I would have to express my opinion.

"Q. Answer it yes or no. A. I can't answer it yes or no.

"Q. So you don't know, do you? A. No.

"Q. So, Doctor, when you told the jury a while ago that the boy died of meningitis, you didn't know, did you? A. Yes, sir, I was expressing my opinion."

Reading Dr. Kerr's evidence as a whole, we are convinced that his testimony on cross-examination is consistent with that in his direct examination. His statements on cross-examination do not impeach his statement made on direct examination. It was his opinion that the deceased died from septic meningitis which was a direct result of the wound on deceased's head. He arrived at this conclusion from an examination of the wound, together with a history of the case. We think the weight of his testimony was for the jury.

The appellant contends the corpus delicti was not proved. In the case of State v. Payne, 331 Mo. 996, 56 S.W.(2d) 116, loc. cit. 118, we approved the rule as stated in Kelley's Criminal Law and Procedure (4th Ed.) art. 473, wherein the author stated: "In criminal homicide the corpus delicti consists of death of a human being and the criminal agency of another as the means thereof and it may be proved by circumstantial evidence." The proof of the criminal agency of the accused is not an essential element of the corpus delicti, although such agency must be shown in order that a conviction may be had. It is undisputed that the appellant struck the deceased over the head with a hoe and that he died July 4, 1933, about a week after the blow was struck. There is ample testimony that meningitis was the result of the wound on deceased's head. Certainly, there was substantial evidence of the corpus delicti and also proof that the acts of the appellant caused the death. A scalp wound that might result in a fatal infection should be as proximate a cause of death as a head wound at the same point that might crush the skull of the victim and produce mortal disorder in the brain.

We think the demurrer to the evidence was properly overruled.

II. Appellant contends that the trial court erred in excluding impeaching testimony offered by him.

On cross-examination Dr. Kerr was asked: "Q. I will ask you if you did not tell a group of men of a fox hunt that if this boy hadn't made a trip back up on a hill that this wound would not have amounted to anything? A. No, sir."

The appellant attempted to prove by several witnesses that Dr. Kerr had made a statement contradictory to this testimony, which was objected to on the ground that a proper foundation had not been laid to impeach this witness. The objection was sustained. The rule in regard to impeaching a witness on the ground of contradictory statements is that the attention of the witness must be called to the time, place, and circumstances, and the person to whom made. State v. Foye, 53 Mo. 336; Spohn v. Missouri Pacific R. Co., 116 Mo. 617, 22 S. W. 690. The objection was properly sustained for the reason that the question asked the witness did not include the person to whom such statement was made.

III. The appellant complains of the refusal of the court to give instructions A, B, C, and D. The assignment of error in appellant's motion for a new trial is as follows: "The court erred in refusing to give instructions A, B, C, D, offered by defendant." The above assignment is too general and presents nothing for review in this court. Section 3735, R. S. (Mo.) 1929 (Mo. St. Ann. § 3735, p. 3275).

IV. Complaint is made of the giving of instruction No. 5. The record shows that this instruction was given at the request of the appellant, and of course he is in no position to complain of the giving of it.

V. In his motion for a new trial appellant complains of the giving of instruction No. 2, defining "manslaughter."

The ground for this complaint is that this instruction did not define the hoe as being a dangerous and deadly weapon, nor did it require the jury to find that the wound was likely to produce death. The hoe had a handle about four feet long, and the blade "looked like it had been made out of an old plow blade," and the iron was about a quarter of an inch thick.

In the case of State v. Painter, 329 Mo. 314, 44 S.W.(2d) 79, loc. cit. 83, we said:

"In State v. Dunn, 221 Mo. 530, 120 S. W. 1179, 1182, the lethal weapon was a club described in the indictment and in the evidence as a heavy piece of wood, twenty-two inches long, three and a half inches wide, and one and three-fourths inches thick. The instructions assumed, as in this case, that it was a deadly weapon. In holding that the trial court did not err in assuming that the club in question was a deadly weapon, this court said: `No one of ordinary intelligence would hesitate for a moment in concluding that the club in question, in the manner in which it was used upon the deceased, was a dangerous and deadly weapon. As was said in Hamilton v. People, 113 Ill. [34] loc. cit. 38, 55 Am. Rep. 396, "such things as all persons of ordinary intelligence are presumed to know are not required to be...