State v. Bolhofner

• Decision Date: 07 May 1935
• Citation: 82 S.W.2d 894,336 Mo. 1155
• Parties: The State v. Walter A. Bolhofner, Appellant
• Court: Missouri Supreme Court

82 S.W.2d 894

336 Mo. 1155

The State v. Walter A. Bolhofner, Appellant

Supreme Court of Missouri

May 7, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Arthur H Bader, Judge.

Reversed and remanded.

Cullen Fauntleroy & Edwards for appellant.

(1) The court erred in permitting the State to prove the general reputation of the deceased for peace and quiet in rebuttal. No attack whatever had been made upon the reputation of deceased, and "error of this sort has always been held to be reversible error." State v. Ross, 178 S.W. 478; State v. Harris, 76 Mo. 364; State v Lee, 66 Mo. 165; State v. Dixon, 190 S.W. 291; State v. Reed, 250 Mo. 379; Holt v. State, 249 S.W. 484. (2) The court erred in refusing to permit the defendant to testify that he had been informed that defendant intended to attack. This was material and relevant evidence of vital importance and its exclusion constitutes reversible error. State v. Evans, 33 W.Va. 426, 10 S.E. 792; Lamb v. Galland, 44 Cal. 609; Jones v. Townsend, 21 Fla. 431, 58 Am. St. Rep. 676; 1 Wigmore on Evidence (2 Ed.) 518, sec. 247; Smith v. Whittier, 95 Cal. 279, 30 P. 529; People v. Shea, 8 Cal. 538. (3) The court erred in giving Instruction 5, second part of Instruction 1 and Instruction 4, by all of which instructions the jury were advised that certain vital presumptions existed as a matter of law. State v. Nybarger, 255 Mo. 291; State v. McGuire, 327 Mo. 1176; State v. Bodoz, 39 S.W. 784; Haycraft v. Grigsby, 88 Mo.App. 362; State v. Galbraith, 50 S.W.2d 1036; State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Cole, 304 Mo. 116, 263 S.W. 207; Mockowik v. Railroad Co., 196 Mo. 571.

Roy McKittrick, Attorney General, Wm. Orr Sawyers and John W. Hoffman, Jr., Assistant Attorneys General, for respondent.

(1) The court committed no error in admitting evidence over the objection and exception of defendant as to the reputation of deceased for peace and quietude, assigned as error in points 5, 6 and 7 of motion for new trial, and point 1 of appellant's brief. State v. Woodward, 90 S.W. 90, 191 Mo. 632. (2) The court did not err in excluding offer of proof by defendant on the witness stand, that defendant's wife had communicated defendant's charge of her adultery with deceased to deceased, at which time deceased communicated a threat against defendant to her, which threat she later communicated to defendant. Assigned as error in point 8 of the motion for new trial and point 2 of appellant's brief. 16 C. J., p. 622, sec. 1233; State v. Burns, 213 S.W. 116, 278 Mo. 441; State v. Pace, 190 S.W. 17; State v. Bobbitt, 146 S.W. 799, 242 Mo. 293; State v. Wilson, 157 S.W. 313, 250 Mo. 330. (3) Instruction 4 dealing with presumption arising from use of a deadly weapon, was properly given, assigned as error in point 10 of motion for new trial and point 3 of appellant's brief. State v. Hart, 274 S.W. 387, 309 Mo. 77. (4) Assignment of error as to giving of Instruction 1, not raised on motion for new trial and raised for the first time in appellant's brief by point 3, is not properly before this court for review. State v. Taylor, 8 S.W.2d 35, 320 Mo. 417.

OPINION

Leedy, J.

Appellant was charged by indictment with murder in the second degree in having shot and killed one Emil Probst in the city of St. Louis on September 3, 1931. The jury found him guilty of manslaughter, and by its verdict assessed his punishment at imprisonment in the penitentiary for a term of eight years. From the judgment rendered thereon, after unsuccessful motion for new trial, he has appealed.

Appellant is a married man, and at the time of the trial was forty-nine years of age, and had five children whose ages ranged from three to twenty-four years. It appears that sometime prior to the homicide Mrs. and Mrs. Bolhofner had separated, and in September, 1930, appellant was living, apart from his family, at 2615 Potomac in the city of St. Louis. Thereafter, and in the following December, his wife and children moved to that address, he having taken up an abode elsewhere. The flat mentioned was owned by the mother and father of the deceased, with whom he lived in the upper, or second story flat known as 2615a Potomac. The deceased was unmarried, and at the time of his death was twenty-seven years of age, six feet tall, and weighed about two hundred and ten pounds. We infer that the Bolhofners were not acquainted with deceased, Emil Probst, prior to the time appellant first rented the premises mentioned, which was in September, 1930. Appellant visited his estranged wife and their children at the Potomac Avenue address with some degree of regularity -- perhaps once or twice a week, and it was on one of such visits that this tragedy occurred.

On the day in question, appellant arrived at his wife's apartment about 11:45 o'clock, A. M., had lunch and supper there, and visited with his wife and children until about eight o'clock, P. M. Appellant had previously charged his wife with having improper relations with deceased, and such accusations had been communicated to the latter, who stoutly denied them. Appellant testified to a state of facts, the details of which we need not relate, but which, if believed, were abundantly sufficient to sustain his charges. It was for the purpose of discussing these alleged relations, or at least appellant's charges with respect thereto, that deceased, his mother (Mrs. Lena Probst), Mrs. Bolhofner and appellant, at about eight o'clock, P. M., went to the workshop of deceased in the basement of the Potomac Avenue address on the occasion in question. That the meeting was arranged at the direction of deceased, and that appellant went there at the express invitation of deceased, communicated through his mother, Mrs. Lena Probst, is not controverted. As to what transpired in connection with the ensuing altercation, there were two conflicting accounts -- one narrated by Mrs. Lena Probst, and the other by appellant.

For the purpose of disposing of the questions raised on this appeal, it is sufficient to say that testimony on behalf of defendant tended to show self-defense; that deceased applied vile epithets to appellant, and the latter shot twice for the purpose of frightening deceased, and shot the third and fatal shot only when deceased was reaching for a pistol in his hip pocket.

I. Error is assigned in the giving of three instructions, namely, "the second part of Instruction No. 1," and Nos. 4 and 5.

(A) Instruction No. 1 submitted the hypothesis of murder in the second degree, and the particular portion complained of reads as follows:

"SECOND. The Court further instructs you that if you find from the evidence that the defendant, Walter A. Bolhofner, intentionally killed the deceased by shooting him with a pistol in the manner set forth in the foregoing instructions, and that such pistol was a deadly weapon, then the law presumes that such killing was murder in the second degree, in the absence of proof to the contrary, and it devolves upon the defendant to meet or repel that presumption, unless such presumption is met or repelled by the evidence introduced on behalf of the State."

Appellant argues that as the homicide was witnessed by eyewitnesses, there is no room for any presumption that the offense was murder in the second degree, and that it was error to instruct that such a presumption existed as a matter of law. It was undoubtedly error to give the instruction. A counterpart of it was under consideration in State v. Burns, 278 Mo. 441, 213 S.W. 114, and it was there held: "This instruction regarding presumption of guilt in trial for murder in the second degree is never permissible when the evidence shows what the facts are as it did in this case. [Citing cases.]" But the learned Attorney General takes the position that the point was not preserved by the motion for new trial, and is, therefore, not properly before us. However that may be, we think the instruction, although erroneous, was harmless, and this because the conviction was not had thereunder, but for a lesser offense. [State v. Ashbrook (Mo.), 11 S.W.2d 1037.]

(B) As to Instruction No. 4, which told the jury that one "who willfully, that is, intentionally, uses upon another at some vital part, a deadly weapon, as a pistol, must in the absence of qualifying facts, be presumed to know that the effect is likely to be death; and knowing this, must be presumed to intend death, which is the probable and ordinary consequence of such an act." The complaint respecting the instruction as stated in the motion for new trial is as follows: "The Court erred in giving to the jury instruction number four (4) dealing with the presumption arising from the use of a deadly weapon. The defendant testified in his own behalf that he did not intend to kill deceased." We hold the statement of this ground for new trial, based on said instruction, is not in compliance with the statute requiring the alleged errors to be "set forth in detail and with particularity" (Sec. 3735, R. S. 1929, sec. 3735, 4 Mo. Stat. Ann., p. 3275) and is, therefore, not before us for review.

(C) The same defect inheres in the motion with reference to complaints leveled against Instruction No. 5, touching defendant's extrajudicial statements. Since the trial of this case in the circuit court, we have had occasion to re-examine the question of the propriety of giving similar instructions, and upon another trial the court will doubtless conform to those rulings. [See State v. Duncan, 336 Mo. 600, 80 S.W.2d 147; State v. Johnson, 333 Mo. 1008, 63 S.W.2d 1000; State v. Dollarhide, 333 Mo. 1087, 63 S.W.2d 998.]

II. In rebuttal, the State, over the objections and exceptions of defendant introduced witnesses to show the good reputation of deceased for peace and...