State v. Cade

• Decision Date: 20 December 1930
• Docket Number: No. 30670.,30670.
• Citation: 34 S.W.2d 82
• Parties: THE STATE v. EDGAR E. CADE, Appellant.
• Court: Missouri Supreme Court

34 S.W.2d 82

THE STATE v. EDGAR E. CADE, Appellant.

No. 30670.

Supreme Court of Missouri, Division Two.

December 20, 1930.

Appeal from DeKalb Circuit Court. — Hon. Guy B. Park, Judge.

AFFIRMED.

E.G. Robison and J.J. Robison for appellant.

(1) There is no substantial evidence to support the verdict, and the same is against the law under the evidence. Every fact testified to is as compatible and consistent with the defendant's innocence as with his guilt. The presumption of innocence is not to be overcome by even strong suspicion or strong probabilities of guilt, but in order to justify a conviction the evidence must be positive, convincing, establishing the defendant's guilt beyond a reasonable doubt. State v. Jones. 106 Mo. 313; State v. Crabtree, 170 Mo. 657; State v. Francis, 199 Mo. 693; State v. Joy, 225 S.W. 494. (2) Instructions A and B should have been given. Authorities, supra. (3) Instruction C properly declared the law of innocence and how long it continued, and the kind and character of evidence that was required before the jury could find the defendant guilty; it properly declared the law of suspicion and probability of defendant's guilt, and the law of the quantum of evidence required before the jury was authorized to convict. No other instruction given covered this feature of the case, or embraced the principles announced by it. Defendant was entitled to have this instruction given. The burden of proof never shifts from the State to the defendant. 3 Bishop's Cr. Pro. (2 Ed.) 1588. The correctness of this instruction has been recognized by this court for many years. State v. Talbott, 73 Mo. 354; State v. Burlingame, 146 Mo. 207; State v. Newland, 285 S.W. 402; State v. Walser, 1 S.W. (2d) 151. (4) The court erred in refusing to give Instructions D and 11. Both instructions deal with certain phases of the right of self-defense. Both properly declare the law. Where the defendant claims that he acted in self-defense, it is important that the jury be told that the defendant has a right to act on appearances, that is, what was the actions and attitude of the deceased, and it is important that the jury be plainly told what force the defendant had a right to use in repelling an assault of the deceased, or protecting himself from great bodily harm. 30 C.J. 58, sec. 229; 1 Michie, Homicide, 374; 13 R.C.L. 816, sec. 120; State v. Berkley, 109 Mo. 676, 92 Mo. 41; State v. Eaton, 75 Mo. 591; State v. Sloan, 47 Mo. 604; State v. Starr, 38 Mo. 270; State v. Smith, 125 Mo. 2; State v. Hollingsworth, 156 Mo. 178; State v. Darling, 202 Mo. 163. (5) The court erred in the giving of Instruction 1. The evidence was not sufficient to warrant the court in submitting to the jury the question of the defendant being guilty of murder in the first degree. There was no evidence that the shooting was done deliberately in the sense that was necessary to constitute murder in the first degree. State v. Snow, 238 S.W. 1070; State v. Young, 119 Mo. 524; State v. Minor, 193 Mo. 609; State v. Kyles, 153 S.W. 1047; State v. Kotovsky, 74 Mo. 249. Deliberation is only exercised in a "cool state of the blood, while premeditation may be either in that state of the blood, or in a heat of passion." State v. Speyer, 182 Mo. 77, 204 Mo. 552. (6) Instruction on manslaughter does not correctly declare the law of manslaughter. State v. Gore, 237 S.W. 996; State v. Hart, 274 S.W. 386; State v. Bradford, 24 S.W. (2d) 995. (a) The given instruction did not tell the jury that it was an intentional killing without deliberation. (b) It was also necessary to define "provocation," or declare there was none. It was necessary to define "justifiable homicide" and "excusable homicide." State v. Gore, 237 S.W. 997; State v. Strong, 153 Mo. 555; State v. Reed, 154 Mo. 129; State v. Skaggs, 159 Mo. 581; State v. Sneed, 91 Mo. 559. What is "heat of passion or reasonable provocation," that will reduce the grade of homicide from murder to manslaughter? The one given by the court, wherein, no attempt was made to define any of the terms "heat of passion," "reasonable provocation" was error. State v. Gieseke, 209 Mo. 341. The calling of the defendant the vile name shown in the record was contemporaneous with the assault, both were one act, and this was sufficient provocation, or lawful and reasonable provocation. State v. Fletcher, 190 S.W. 322. (7) The court erred in permitting the witness Anna Dice to testify to the physical condition of Mrs. Cade, at time she was at the Dice home. This evidence had nothing whatever to do with the guilt or innocence of the defendant, but was prejudicial, for the reason that it permitted the jury to draw unwarranted inferences. The jury could infer from this evidence that Mrs. Cade had actually witnessed the shooting of Kenneth, and was excited over it. This was especially prejudicial inasmuch as Mrs. Cade was not a competent witness in the case. (8) The court erred in permitting the State to examine the defendant about the key to the automobile, and defendant's refusal to give it to them. The key was the property of the defendant. The alleged conversation about the keys could not be part of res gestae. Carl Herman, a witness, testified that the defendant said that, "He, the defendant would take Kenneth to the hospital himself." This was in connection with the talk about the keys, and at the same time.

Stratton Shartel, Attorney-General, and G.C. Weatherby, Assistant Attorney-General, for respondent.

(1) If there is any substantial evidence of deliberation in a case of homicide it is proper to submit a first degree murder instruction. Deliberation need not be proved by direct evidence, but may be established by circumstances sufficiently evidencing its existence. State v. Snow, 293 Mo. 149. All substantial testimony offered by the State and tending to implicate the accused should be taken as true, and every legitimate inference that may be drawn from it indulged. State v. Henke, 313 Mo. 627. (2) The court submitted the crime of manslaughter by proper instruction. State v. Glass, 318 Mo. 618; State v. Lucas, 316 Mo. 912; State v. Gore, 237 S.W. 996; State v. Hicks, 3 S.W. (2d) 234; State v. Carey & Kerr, 313 Mo. 447; State v. Allister, 295 S.W. 757; State v. Bradford, 224 S.W. (2d) 996. (a) Justifiable homicide was defined. Excusable homicide was not. It was not necessary. State v. Hart, 309 Mo. 84. The same would be true as to the term "reasonable provocation." State v. Glenn, 262 S.W. 1030. (3) The refusal of Instruction C requested by defendant was not error. The instruction covered "presumption of innocence." This was covered by State's Instruction 16. It is not error to refuse an instruction covering matter properly submitted in a given instruction. State v. Miller, 307 Mo. 365; State v. Benson, 8 S.W. (2d) 49; State v. Vanvelkenberg, 299 S.W. 125. (a) It was not error to refuse Instructions 11 and D. These instructions covered the subject of self-defense. This defense was correctly submitted by the State's instructions. Cases supra. (b) The court did not err in refusing Instruction E. It pertains again to self-defense which was fully and correctly submitted by given instructions. Same cases. (4) The court was right in permitting the defendant to be cross-examined concerning his movements immediately following the shooting. Conceding only for the sake of argument the matter complained of was not touched upon in chief, the examination was not prejudicial to defendant. State v. Kelley, 284 S.W. 801; State v. Dalrymple, 270 S.W. 675.

WHITE, J.

The appeal is from a conviction, January 28, 1930, of murder in the first degree, and sentence to life imprisonment. The defendant was charged with murdering one Kenneth Hermann, December 31, 1929.

Defendant Cade at the time was forty-one years old. A few years before the incident he had married Nina Hermann, who had three children: Carl, nineteen years old; Kenneth, seventeen, and Albert, twelve. The defendant's father, eighty years of age, lived with the family at the time of the homicide.

On December 31, 1929, Kenneth Hermann was not well, ate no breakfast and did not go to school. Carl went to school as usual. About 2:30 in the afternoon of that day Mrs. Cade appeared at the house of one Anna Dice, about a quarter of a mile from the Cade home. She was very much excited and carried a rifle which belonged to her son Carl. Conversation which occurred between her and Mrs. Dice was not admitted. A short time afterward Carl Hermann at school received a message from his mother, and immediately went home. On his way he went by the home of Fred Warner and took Warner with him. He found Edgar Cade and Cade's father in the west room of the house, passed on through into the southeast room where he found his brother Kenneth still alive, but unconscious, with a bullet through his head. A doctor was called about 4:15 and examined the wound. On his advice the wounded boy was started to the hospital at St. Joseph and died on the way there. There was no eye-witness to the shooting except the defendant. All the facts in relation to the character of the crime must be gathered from circumstances and the defendant's own story.

I. The court instructed the jury on murder in the first degree, directing that if they found the defendant guilty of murder in the first degree they should assess his punishment at life imprisonment. Why the judge excluded the death Murder in penalty from the consideration of the jury does First Degree. not appear. The appellant assigns error to that instruction on the ground that the evidence did not authorize such an instruction. Where there is no witness to a homicide murder in the second degree is presumed in the absence of evidence to show the crime was of a different character. Murder in the first degree, however, may be shown by circumstantial evidence. [State v. Lucas, 316 Mo. l.c. 912; State v. Walker, 98 Mo. 107; State v. Grant, 76 Mo. 236.] Premeditation,...