State v. Custer

• Decision Date: 05 March 1935
• Docket Number: No. 33967.,33967.
• Citation: 80 S.W.2d 176
• Parties: THE STATE v. T.E. CUSTER, Appellant.
• Court: Missouri Supreme Court

80 S.W.2d 176

THE STATE v. T.E. CUSTER, Appellant.

No. 33967.

Supreme Court of Missouri, Division 2.

March 5, 1935.

Appeal from Stone Circuit Court. — Hon. Robert L. Gideon, Judge.

REVERSED AND REMANDED.

G.W. Thornberry for appellant.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in admitting the dying declaration of the deceased, Costlow. State v. Gow, 235 Mo. 307; State v. Crone, 209 Mo. 316; State v. Hostetter, 222 S.W. 750; State v. Barnes, 204 S.W. 264; State v. Kelleher, 201 Mo. 614; State v. Elkins, 101 Mo. 344; State v. Dipley, 242 Mo. 461; State v. Turlington, 102 Mo. 642; State v. Evans, 124 Mo. 397; State v. Wilks, 213 S.W. 118; State v. Anderson, 34 S.W. (2d) 25; State v. Taylor, 51 S.W. (2d) 1003; State v. Morgan, 56 S.W. (2d) 385. (2) The court did not err in giving Instruction 12 for the State. State v. Sexton, 147 Mo. 103; State v. Gow, 235 Mo. 307; State v. Crone, 209 Mo. 316; State v. Hostetter, 222 S.W. 750.

COOLEY, C.

Charged by information with murder in the first degree for the killing of E.C. Costlow defendant was tried, convicted of murder in the second degree, sentenced to ten years' imprisonment in accordance with the verdict and has appealed.

At the time of the homicide the defendant, a man about eighty years of age, lived with his elderly and partially blind wife on a small farm, which they did not own. They were in poor circumstances financially and it appears were occupying the house rather by sufferance of the owner than by right. A short time previously Costlow had leased the premises from the owner. Defendant claimed and introduced some evidence tending to show that Costlow had agreed to let him occupy the house, for a time not definitely shown but apparently at least for such reasonable time as would enable him to make arrangements to move, which arrangements he was making. Costlow lived about a quarter of a mile from the place in question. The State's evidence tends to prove that on the morning of April 1, 1933, Costlow, with his younger brother Carl, aged about fourteen, went in a wagon to the place where defendant lived; that defendant's cow was in the potato patch and Costlow drove her out and through a gap in the fence into the road; that as Costlow was coming back toward his wagon the defendant went to his woodpile and got his double-barreled shotgun which had been there partially concealed under some wood, and shot Costlow twice; that at the first shot Costlow screamed and fell, then got up and was shot again; that there were no words between defendant and Costlow prior to the shooting. The State's principal witness was deceased's brother Carl, who was present when the homicide occurred. The State's evidence makes a case of murder.

Defendant's evidence tended to show that there had been disagreement and some verbal clashes between him and Costlow after Costlow had leased the premises and prior to the day of the shooting; that Costlow had threatened forcibly to eject him and his wife from the premises "throw them out;" that on the occasion in question Costlow repeated his former threats and that when the shots were fired Costlow was advancing toward him in a threatening manner with, as he thought, something in his hand, and he fired in self-defense. Further facts will he stated in connection with points upon which they bear.

I. Appellant has filed no brief. In his motion for new trial he complains of certain alleged errors at the trial. First it is contended that the court erred in admitting the alleged dying declaration of the deceased because not sufficiently shown to have been made in belief of impending death.

Costlow was shot at about nine o'clock in the morning. He was taken to his home and a doctor was called. The doctor testified that when he arrived Costlow was suffering severely; that there were a good many shot holes in his side, the muscles in his arm and leg were "pretty full of shot," there was bleeding in the muscles and the leg was "swollen up pretty bad." "And there were shot in his abdomen, on his hip; and he was in a state of shock when I got there. That is the shock was bad; and he was weak, sweating, pulse very bad; temperature away down below normal from the hemorrhage." It appears the hemorrhage was mostly internal. He testified that deceased's wounds were dangerous and likely to produce death; that the wounds in the leg were such that it was a fifty-fifty chance they alone would cause death; that he "used antiseptics on him, got him cleaned up, dressed and fixed up comfortably," and gave him a hypodermic to ease the pain and bring him out of the shock. It does not appear whether or not he informed Costlow of the seriousness of his condition. He left about noon and did not again see Costlow.

About two o'clock that afternoon the sheriff, Seth Tuttle, came to see Costlow. When called as a witness Tuttle was first examined before the court in the absence of the jury and testified: "He spoke to me; said `Hello, Seth.' And I said `How are you?' And he said `He got me; I am all in.' I said `Are you suffering much?' and he said, yes that he was;" that Costlow then made a statement as to how the shooting happened. He testified that Costlow said nothing to him as to whether he expected to die or had hopes of recovery — nothing along that line except what is above set out. The jury was then recalled and the above testimony together with Costlow's statement as to the circumstances of the shooting was detailed to the jury. The statement corroborated the testimony of Carl Costlow, contradicted the defendant's testimony tending to show self-defense, and tended to show a killing under circumstances constituting murder. Costlow died about four o'clock the morning after he was shot, some fourteen hours after making the statement testified to by Tuttle.

[1] A dying declaration, in order to be admissible as such, must have been made in the belief on the part of the declarant of impending death, after hope of recovery has been abandoned. Whether or not it was so made is a question to be determined by the court as a preliminary question in the absence of the jury before it is admitted in evidence. In so determining the declarant's state of mind, the circumstances under which the statement was made may and should be considered and it is the impression of almost immediate death and not the rapid succession of death that determines the admissibility of the statement. [State v. Anderson (Mo.), 34 S.W. (2d) 25, and cases cited; State v. Barnes (Mo.), 204 S.W. 264, and cases cited.] In State v. Kelleher, 201 Mo. 614, 100 S.W. 470, the deceased, soon after he was shot, said: "I am a croppy, I am a dead one; there ain't nothing to it." At the hospital when his dying declaration was about to be taken he said that it was all off with him. The court held the statements, taken in connection with the attending circumstances, the condition of the wound and the declarant's state of mind from the first, sufficient to show that the declaration was made under the impression of almost immediate dissolution.

In State v. Dipley, 242 Mo. 461, 147 S.W. 111, the deceased was shot through the lung, causing the pleural cavity to fill with blood. When wounded he ran to his bed and did not leave it until removed by others. He was suffering much pain which the doctors were unable to relieve. He said he could tell from his breathing that he was shot through the lung and repeatedly stated: "I guess they have got me." It was held that his statements, in connection with all the circumstances, were sufficient to show that he believed he was fatally wounded and was conscious of the near approach of death, and that his dying declaration was properly admitted.

In the instant case the State's evidence was that deceased fell when he was shot and had to be carried to his home. When the doctor arrived he was suffering severely and was in a very bad condition. The doctor's ministrations failed to relieve his suffering, as witness the statement to Tuttle that he was then still suffering greatly. His expression: "He got me; I am all in," must be interpreted in the light of the circumstances and his condition at the time the words were spoken. While the evidence offered in this case as foundation for the admission of the dying declaration does not seem to us quite as strong as in the cases above cited and others which we have examined, we are inclined to think it was sufficient to justify admission of the declaration in evidence.

[2] II. Complaint is made of the following instruction, No. 12, on the subject of dying declaration, given by the court at the request of the State:

"The Court instructs the Jury that if you believe and find from the evidence that E.C. Costlow, a short time before he died, made any statement relating to the assault alleged to have been made upon him on the 1st day of April, 1933, as to the parties who made said assault and the manner in which said assault was made, you will take and consider such statement as the dying declaration of the said E.C. Costlow; but because it is a dying declaration you are not necessarily bound to believe it, but you will give it that weight which you think it ought to have, when considered in connection with all the other facts and circumstances in evidence." (Italics ours.)

At the time of admitting the declaration in evidence the court indicated that the jury would ultimately be permitted to determine for themselves whether they believed it to have been made in the belief on the part of the declarant that he was about to die. But the quoted instruction, the only one given on that subject, in effect withdrew that question from the jury's consideration. It tells the jury peremptorily that if they find that the statement in question was made they will take and consider it as the dying declaration of the deceased, thus precluding the jury from considering,...