State v. Cole

• Decision Date: 03 June 1919
• Docket Number: No. 21336.,21336.
• Parties: STATE v. COLE.
• Court: Missouri Supreme Court

213 S.W. 110

STATE v. COLE.

No. 21336.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from Circuit Court, Newton County; Charles L. Henson, Judge.

John Cole was convicted of murder in the second degree, and appeals. Reversed and remanded for new trial.

M. E. Benton and Horace Ruark, both of Neosho, for appellant.

Frank W. McAllister, Atty. Gen., and Thomas J. Cole, Sp. Asst. Atty. Gen., for the State.

FARIS, J.

Defendant, charged in an information with murder in the second degree, for that he had shot and killed one George Kincannon, was upon his trial found guilty, and his punishment assessed by the trial jury at imprisonment in the state penitentiary for a term of ten years. From this conviction and the resulting sentence bottomed thereon, he has, in the usual way, appealed.

Some of the facts attending the homicide are necessary to be stated in order to understand some of the points made by defendant for reversal. Such facts run briefly thus: Defendant and defendant's wife prior to the homicide in question, which occurred about 8 o'clock in the evening of July 26, 1917, had beome estranged and were living apart from each other. The wife of defendant was at the residence of one George Corker, a brotherin-law, in Granby, Newton county, Mo. Defendant had come to visit his wife at the residence of this brother-in-law, with a view of patching up strained relations and of again living with her. While defendant was sitting in the yard of the residence of Corker in conversation with his wife, deceased Kincannon and one Ralph Lucas came up in an automobile and took Lulu McCaslin, the sister of defendant's wife, for an automobile ride. Deceased and this sister-in-law of defendant were gone upon this ride some 30 minutes or more. Upon their return, deceased and Lulu McCaslin got out of the car, and deceased was in the act of bidding her good night. At this moment defendant, who had been theretofore sitting, as stated, in the yard, came out to the car and asked deceased who was in the car with him. Deceased replied that the person was still in the car, and that defendant could look for himself and see. Defendant then struck a match, looked into the car, inferably saw and recognized Lucas, and thereupon walked back to Kincannon and said, "I thought it was that ____ in the first place," applying to Ralph Lucas a profane and vilely opprobrious epithet. Defendant then slapped deceased with his right hand and drew his revolver with his left hand. Upon this, Lulu McCaslin ran to the house, which was some 30 feet from the street where the car was, and told her sister what was transpiring, and afterwards, almost immediately, ran back to the car and begged deceased not to have any trouble there. During all of this time, or at least when the witness left and when she "came back, defendant was standing some 2½ or 3 feet from deceased, who was holding his hands at his sides. Inferentially, also, during the interval while Lulu McCaslin was going to and returning from the house, defendant had his pistol drawn. Ralph Lucas had in the meantime alighted from the car and was standing near defendant. Almost instantly after Lulu McCaslin had interfered in the manner stated and requested that no trouble occur, defendant fired on deceased. At the first shot the McCaslin woman turned and ran toward the house, calling to Lucas to run also, which he did. Deceased fell at the first shot, and thereupon defendant ran after Lucas and fired at least four shots at him. Both Kincannon and Lucas were instantly killed. There were two shots in the body of deceased, one through the chest, or breast, and the other in his head. Precisely when the second shot was fired by defendant into the body of deceased—that is, whether it was fired while deceased was falling or after he was down and helpless, and after defendant had shot and killed Lucas—is not clear from the evidence.

No weapons of any sort were found on the bodies of either deceased or Lucas, except a small pocketknife, which was found in the pocket of Lucas.

Upon the trial defendant sought to justify himself by a plea of self-defense. The testimony upon which this plea was bottomed came largely, and as to the actual events of the homicide wholly, from defendant himself. Upon this defendant said that he shot both men in self-defense; that they had cursed him at the time of the homicide and threatened him, and had attempted to make him leave the place; that they had started together to assault him, deceased apparently reaching for a weapon and Lucas holding his hand behind him in such wise as to create the apprehension that he had a weapon—defendant says "something"—therein; and that in this situation he shot and killed them both.

There was much evidence in the case on the part of defendant touching threats which had been made by Kincannon against defendant, and it was shown that on one occasion deceased, while in company with defendant's wife, had shot at two boys, believing that one of them was defendant. There was some testimony in the case tending to prove that deceased had been sustaining with the wife of defendant illicit sexual relations. This is clearly the underlying motive in the case.

It was shown by defendant that his reputation for peace and quietude in the community prior to the shooting had been good.

The reputation for chastity of Lulu McCaslin, who was the only eyewitness of the actual shooting, and who was the chief and strongest witness for the state, was shown to be bad. Besides this, there was much proof in the case of contradictory statements made by her, as well as of statements indicating her prejudice against defendant, and of her desire that he be convicted.

Other facts will become necessary to an understanding of the points up for judgment; but in the view we take of the case a statement of those facts, which are apposite to and which explain these points, can be best made in connection with the discussion thereof.

I. Numerous alleged errors are urged upon our attention. These we take in the order in which they are set down in the brief of defendant's learned counsel.

Imprimis, it is urged that it was error for the court to permit the state to introduce evidence of the fact that defendant some 8 years before had either been guilty of illicit carnal knowledge of a female under the age of 18 years, or that he had been guilty of seduction under promise of marriage. This contention is bottomed upon the fact that the state, over and against defendant's objections and exceptions, was permitted to show that before defendant married a child had been born to the woman who became his wife, of which he was the putative father. This was error.

The question whether defendant had married a 17 year old girl shortly after she had given birth to a child of which defendant was the father was wholly irrelevant and afield from any issue as to whether 7 or 8 years thereafter he had shot and killed the deceased Kincannon under such circumstances as to constitute either murder or self-defense. If such testimony was offered to prove—and this point is nebulous—that defendant had been guilty of other crimes, so as to affect his credibility as a witness, the answer is that he had never been convicted therefor, and so till conviction [State v. Blitz, 171 Mo. 530, 71 S. W. 1027] the alleged fact of guilt could not be proved against him, even to affect his credibility as a witness. It is impossible to understand upon what theory the state deemed testimony of this character to be admissible. It is urged here by the state that in effect the defendant waived the error herein urged by testifying in answer to a direct question by his counsel, that before his marriage he and his wife "did wrong." In this contention the state loses sight of the fact that, long before defendant so testified, the state had, over his strenuous objections and exceptions,...