State v. Bozarth

• Decision Date: 14 November 1962
• Docket Number: No. 49171,No. 1,49171,1
• Citation: 361 S.W.2d 819
• Parties: STATE of Missouri, Respondent, v. John A. BOZARTH, Appellant
• Court: Missouri Supreme Court

Page 819

361 S.W.2d 819

STATE of Missouri, Respondent, v. John A. BOZARTH, Appellant.

No. 49171.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1962.

Taken as submitted by appellant.

Thomas F. Eagleton, Atty. Gen., James W. Steele, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

DALTON, Presiding Judge.

Defendant was charged with murder in the first degree in an information filed in the Circuit Court of Daviess County on October 23, 1959. Thereafter, the cause went on change of venue to Caldwell County, where, after change of judge, the cause was tried to a jury before Honorable Frank D. Connett of the Fifth Judicial Circuit, sitting as special judge. On June 29, 1961, the jury returned a verdict finding defendant guilty of manslaughter, but was unable to agree on the punishment. Thereafter the court assessed defendant's punishment at ten years' imprisonment, and he was committed to the Department of Corrections at Jefferson City, Missouri. Defendant has appealed, but has not favored us with a brief, hence we shall examine such assignments of his motion for a new trial as are sufficient to meet the requirements of Supreme Court Rule No. 27.20, V.A.M.R.

Defendant offered a motion for judgment of acquittal at the close of all the evidence, which motion was overruled. While the action of the court in this regard is not assigned as error in the motion for a new trial, a brief statement of the evidence is essential to an understanding of certain assignments of error contained in the motion for a new trial.

Defendant was charged with the murder of Millard F. Cain on August 12, 1959, in Daviess County. It was the State's theory that defendant suspected Cain of having stolen a shotgun from him; that he induced Cain to visit defendant's cabin for a drink of wine and there beat him with a hammer. The injuries sustained, however, did not result in death until August 16, 1959. The State waived the death penalty.

On August 12, 1959, defendant was living in a cabin on the west side of Highway 69 at the east edge of Pattonsburg, Missouri. He had rented the cabin from one Warford about August 1 of that year. The cabin in question was one of a group of four or five small cabins known as the Elms cabins. These cabins, apparently in bad repair, had been rented in connection with a service station, which was no longer in operation. Defendant's cabin consisted of two rooms, a closet and a 'cubbyhole' that was formerly built for, or used as, a shower stall. Entrance to the cabin was from the north into a large room, with a smaller room immediately south, and to the left of the south room was a smaller room, or closet, which measured five or six feet by four feet, and to the east of this was the small 'cubbyhole.' Some evidence showed it to be only about two feet wide. On the date mentioned defendant was fifty-nine years of age, five feet eleven inches tall and weighed approximately 160 pounds. In the past he had worked at various types of labor, but was then working for the MFA, hauling cobs. He was in the habit of drinking wine to excess and, after his character was in issue, the State showed that his reputation for turbulence and violence was bad.

The deceased, referred to as Millard 'Petey' Cain, was sixty-nine years of age, about five feet six inches tall and weighed approximately 135 to 140 pounds. He was a farm laborer and fisherman and was referred to as 'an alcoholic and wino' and also as 'one of the town drunks.' There was evidence that frequently, when drunk, he would go to the Elms cabins and 'sleep it off.'

On the issue of motive, the State's evidence showed that defendant stated he had caught 'Petey' Cain pilfering around in his cabin a week or so prior to the date in question; that Cain 'had stole a shotgun off him and he was laying for him to catch him in there.' He said the shotgun belonged to Warford's son. Defendant also testified that he had run into 'Petey' Cain on August 11, 1959, about 100 yards down the highway from Lambert's Liquor Store. It was clear from defendant's evidence that defendant suspected Cain of the theft, since defendant testified as follows: 'Q What happened then? A He said: 'Where are you going?' and I said, 'Home'. Q Was there any other conversation? A We got on down there and he said: 'I heard you had a gun stolen', and I said, 'How did you know?', and he said: 'Norman said he thought he heard you talking about it up in front of Grahams', and I said: 'I want to find it if I can.' He said: 'There has been a lot of stuff stolen', and I said: 'Yes, and I don't want no one laying around there drinking like it has been, because I have the whole place rented now.' Q You wanted him to stay away? A Yes.'

The record also shows that defendant had borrowed the hammer used in the beating from a Mr. Shipers, who worked for the MFA, and that he had borrowed it on Friday before the killing on Wednesday. Defendant told Robert Smith (defendant's witness) that Cain had been around, and he wouldn't say that Cain stole the shotgun, but 'he wasn't above stealing it' and that he (defendant) would have to pay $125 to Lyle Warford. On the date in question, August 12, 1959, one Walker took defendant to Lambert's Liquor Store about dark. Lambert testified that he sold defendant a pint of wine from his liquor store. He said defendant arrived at the store about nine o'clock and stayed at the store until closing time, about 10 p. m. At that time defendant was not intoxicated and appeared to be in a normal condition. He did not open the wine while at Lambert's place. The store is located on Highway 69, a quarter of a mile north of Pattonsburg. The defendant left on foot.

Woodrow Morris, the operator of a service station on Highway 69 about one block north of the Elms cabins, saw the defendant and Cain together at about five minutes past ten on the night of Wednesday, August 12, 1959. They were going south on foot. There was a street light by Morris' place of business that lighted the area so that he could see both of them plainly in the lighted area. The two men were coming down the road together from north of his place. He had first seen them across the highway and about 200 feet or so north. After they came closer he saw it was defendant and Cain. Cain was on Morris' side of the highway going south and defendant stayed on the east side going south. They walked down as far as the front of Morris' place and past there to the intersection and Cain stopped at the intersection and lit a cigarette. They were then only a block from the Elms cabins. The only conversation they had was when defendant asked Cain if he had had a drink and Cain said 'No', 'I've quit--clear quit.' Defendant kept walking and then asked the same question again and got the same answer. After they passed, defendant walked across the highway to Cain and they walked on together on the west side of the street, going south in the direction of the Elms cabins. Morris observed nothing after that except the light in the defendant's cabin, but he did not know defendant lived there at that time. The witness had never seen defendant and Cain together on any previous occasion. Defendant was half way down the block to the south when Cain met up with him. The city park takes up nearly all of the block, except what is occupied by these old cabins and an old filling station. A Mr. Woodring, who was mowing in the city park, saw Mr. Cain about 9:30 p. m. coming from a westerly direction, going east, and waved at him. He appeared normal.

Cain's son also testified that, on the evening of August 12, 1959, Cain left the son's residence about 10 p. m. It was then dark. His father had been drinking but was not drunk, only about half intoxicated. Defendant's cabin was about one block from the home of Cain's son. When Cain left, he went down the alley and through the park in the direction of the Elms cabins. In addition to hunting and fishing, and doing farm work, the deceased also drew a small pension.

At approximately 10:15 to 10:30 on the night of August 12, 1959, defendant went to the home of Sam Graham and requested that he call an undertaker as there was a dead man in his cabin. Mr. Graham called Dr. Baumgardner, Coroner of Daviess County. Dr. Baumgardner proceeded to the Elms cabin where he found the defendant and defendant showed him where Millard 'Petey' Cain was lying. Cain was unconscious, but alive. Dr. Baumgardner then left Cain and defendant, and went and called the marshal and an undertaker. They all arrived back at the cabin at approximately the same time, and Cain was removed to the Noll Memorial Hospital at Bethany, Missouri, by ambulance. Defendant was left alone in the cabin. Baumgardner and the city marshall, Ladd, found Cain lying on his back, with his head in the northwest corner of the shower stall and his legs and feet extending out into the closet. There was nothing in his hands. There was no box in the 'cubbyhole' or closet where Cain was lying. It was most difficult to remove the body from the shower stall or 'cubbyhole' due to the smallness of the space and the cramped position of the body. Cain's head was very bloody, his injuries were very recent, and there was much blood on the floor and walls of the room that 'takes you into the little closet.' At the time the body was removed from the shower stall, Dr. Baumgardner did not notice anything in the place from which Cain's body was removed; however, he saw a box of dynamite sitting alongside of a suitcase at another place in the cabin. Mr. Robertson, the undertaker, did not see anything on the floor of the shower stall when Cain was removed. At the time the undertaker, coroner and the city marshal were removing Cain from the cabin, the defendant showed them the hammer in question and they observed blood on it. Subsequently the sheriff was called and went to the cabin and found defendant, who picked up the hammer and said, 'This is the hammer.' It was a claw hammer....