State v. Davis

• Decision Date: 11 July 1935
• Docket Number: No. 33975.,33975.
• Citation: 84 S.W.2d 930
• Parties: THE STATE v. EDGAR L. DAVIS, Appellant.
• Court: Missouri Supreme Court

84 S.W.2d 930

THE STATE v. EDGAR L. DAVIS, Appellant.

No. 33975.

Supreme Court of Missouri.

Division Two, July 11, 1935.

Appeal from Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.

REVERSED AND REMANDED.

Ralph S. Latshaw, Geo. H. Jones and Sam Modica for appellant.

(1) There was insufficient evidence upon which to base a conviction. The verdict of the jury was against the evidence and there was an absence of substantial evidence upon which to base a conviction. State v. Bass, 157 S.W. 787, 251 Mo. 107; State v. Nagle, 32 S.W. (2d) 601, 326 Mo. 661; State v. Archer, 6 S.W. (2d) 914; State v. Goldstein, 225 S.W. 913; State v. Wheaton, 221 S.W. 28; State v. Edmundson, 218 S.W. 867; State v. Frisby, 204 S.W. 4; State v. Miller, 137 S.W. 890, 234 Mo. 588; State v. Johnson, 209 Mo. 357; State v. Gordon, 199 Mo. 597; State v. De Witt and Jones, 191 Mo. 58; State v. Francis, 199 Mo. 693; State v. Crabtree, 170 Mo. 657. (2) The purported dying declaration should not have been admitted in evidence. (a) Not made at time when deceased was conscious of immediate death or imminent dissolution. (b) Was not dying declaration of deceased but was summary of purported statements of deceased aided by suggestions of another. State v. Johnson, 118 Mo. 501, 24 S.W. 229; State v. Barnes, 204 S.W. 264; State v. Vest, 254 Mo. 468, 162 S.W. 615; State v. Colvin, 226 Mo. 482, 126 S.W. 448; State v. Parker, 172 Mo. 201, 72 S.W. 650; State v. Nocton, 121 Mo. 537, 26 S.W. 551; State v. Curtis, 70 Mo. 597; State v. Draper, 65 Mo. 335. (3) The assistant prosecuting attorney in his closing argument to the jury openly and flagrantly violated the rights of this defendant and thereby committed reversible error. State v. Pierson, 56 S.W. (2d) 120; State v. Flores, 55 S.W. (2d) 953; State v. Mathis, 18 S.W. (2d) 10; State v. Nicholson, 7 S.W. (2d) 379; State v. Taylor, 8 S.W. (2d) 37; State v. Jones, 268 S.W. 86, 306 Mo. 437; State v. Houston, 263 S.W. 225; State v. Snow, 252 S.W. 632; State v. Cole, 252 S.W. 701; State v. Connor, 252 S.W. 722; State v. Dengel, 248 S.W. 605; State v. Thompson, 238 S.W. 117; State v. Goodwin, 217 S.W. 267; State v. Isaacs, 187 S.W. 22; State v. Ackley, 183 S.W. 293; State v. Webb, 162 S.W. 628, 254 Mo. 414; State v. Wellman, 161 S.W. 800, 253 Mo. 302; State v. Hess, 144 S.W. 491, 240 Mo. 147; State v. Phillips, 135 S.W. 6, 233 Mo. 299; State v. Clapper, 203 Mo. 553, 102 S.W. 56; State v. Spivey, 191 Mo. 113, 90 S.W. 81; State v. Woolard, 111 Mo. 255, 20 S.W. 27; State v. Ulrich, 110 Mo. 365, 19 S.W. 656; State v. Jackson, 95 Mo. 654, 8 S.W. 749. (4) The State was allowed to improperly cross-examine defendant on matters not brought out in chief and to continually recall defendant to stand after various witnesses had testified and to inject false issues into the case to inflame the minds of the jury and to excite their passion and prejudice. Sec. 3692, R.S. 1929; State v. Pierson, 56 S.W. (2d) 124, 331 Mo. 636; State v. Nicholson, 7 S.W. (2d) 378; State v. Aurentz, 263 S.W. 181, 315 Mo. 242; State v. Lasson, 238 S.W. 101, 292 Mo. 155; State v. Culpepper, 238 S.W. 803, 293 Mo. 249; State v. Edelen, 231 S.W. 588, 288 Mo. 160; State v. Edmundson, 218 S.W. 867; State v. Bowman, 199 S.W. 164, 274 Mo. 494; State v. Barri, 199 S.W. 138; State v. Goodwin, 195 S.W. 729, 271 Mo. 73; State v. Santino, 186 S.W. 978; State v. Sharp, 135 S.W. 492, 233 Mo. 269; State v. Kyle, 177 Mo. 663; State v. Hathhorn, 166 Mo. 239; State v. Grant, 144 Mo. 64; State v. Porter, 75 Mo. 178; State v. McGraw, 74 Mo. 573. (5) The court erred in refusing to give defendant's Instruction 12. State v. Peak, 237 S.W. 470; State v. Gore, 237 S.W. 998; State v. Crone, 209 Mo. 328; State v. Hendricks, 172 Mo. 662; State v. McMullin, 170 Mo. 627; Secs. 3681, 3694, R.S. 1929; State v. Johnson, 6 S.W. (2d) 900; State v. Lambert, 300 S.W. 709, 318 Mo. 705; State v. London, 295 S.W. 549; State v. English, 274 S.W. 470, 308 Mo. 695; State v. Cantrell, 234 S.W. 802, 290 Mo. 232; State v. Starr, 148 S.W. 867, 244 Mo. 161; State v. Harris, 134 S.W. 536, 232 Mo. 317; State v. Lackey, 132 S.W. 602, 230 Mo. 707; State v. Palmer, 88 Mo. 568; State v. Branstetter, 65 Mo. 155; State v. Stonum, 62 Mo. 596; Hardy v. State, 7 Mo. 304.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.

(1) There was substantial evidence to support the verdict of second degree murder in this case. Sec. 3663 R.S. 1929; State v. Creighton, 52 S.W. (2d) 562; State v. Baublits, 27 S.W. (2d) 16, 324 Mo. 1207. (2) The dying declaration of deceased was properly admitted in evidence. State v. Anderson, 34 S.W. (2d) 26; State v. Evans, 28 S.W. 11, 124 Mo. 397; State v. Gore, 237 S.W. 996, 292 Mo. 173; State v. Nocton, 121 Mo. 550, 26 S.W. 551. (3) The court committed no error in refusing to give Instruction 12, which instruction related to the weight and value to be given a dying declaration admitted in evidence. Sec. 3681, R.S. 1929; State v. Morgan, 56 S.W. (2d) 387; State v. Chick, 221 S.W. 16, 282 Mo. 51. (4) The jury was properly qualified to pass on the guilt or innocence of this defendant. Sec. 8747, R.S. 1929; State v. Wilson, 230 Mo. 651, 132 S.W. 238; State v. Barr, 20 S.W. (2d) 600. (5) There is no proof that the verdict as rendered be a quotient punishment and not the result of deliberations. State v. Adams, 318 Mo. 712, 300 S.W. 742. (6) The argument of the prosecuting attorney contains no inflammatory statements, under the evidence of this case. State v. Kindred, 49 S.W. 850, 148 Mo. 270; State v. Rowe, 24 S.W. (2d) 1038, 324 Mo. 863; State v. Shawley, 67 S.W. (2d) 87; State v. Eaton, 292 S.W. 74, 316 Mo. 995; State v. Jones, 256 S.W. 791.

TIPTON, P.J.

In the Circuit Court of Jackson County, Missouri, the appellant was convicted of murder in the second degree for killing Paul Proctor and was sentenced to ten years' imprisonment in accordance with the verdict. The appellant admitted that on September 14, 1933, he shot Proctor who died four days later.

I. On September 15, 1933, the deceased made a statement which was introduced in evidence as his dying declaration. The admission of this statement was assigned as error. The statement is as follows:

"I, Paul Proctor, realizing the fact that I am mortally wounded and without hope of recovery, and in the immediate presence of death, do make this as my dying statement:

"At about 11:45 on the 14th of September in the morning I went to the office of Dr. Davis at 1125 Grand Avenue. I had been there before but he had never treated me. I met him through a job I had delivering circulars. By that I mean I had once gone there looking for a job delivering circulars.

"I went there on the occasion of this trouble for a chat and because I had a sore elbow that I thought he could help. I chatted with him for ten minutes. He looked at my elbow but did not treat it. He put something on it that I think was alcohol. He wanted $5 and I hadn't thought he would charge me anything. I had told him I was going to buy a suit of clothes and I had the money with me. I had showed him the bills and there was $23. I had opened the roll of bills while I was talking to him. I had a rubber hand around the money. I did not take my clothes off for the treatment, but rolled my sleeve up. I had been in to see about the suit with Louis Harris. I was almost at the steps when Dr. Davis shot me I swear I can't think of any reason why he shot me but I think he was just crazy. Everything I have told you is the truth. I had this money at home and kept it behind the mirror of the dresser in my room. There were three five dollar bills and eight one dollar bills — I counted it before I left home and I know there was $23. We had a pretty hot argument about the payment of the treatment. He said I would wish I had paid the $5 for the treatment.

                       "[Signed]        Paul Proctor
                       "X (His mark)
                "Witnessed September  15-1933 at 3:55
                     p.m
                   "R.A. Woodbury
                   "C.A. Lusk, Jr
                   "J.B. Rush."
                

This statement was objected to on the ground that at the time it was made there was not a sufficient showing that Paul Proctor realized that all hope of his recovery had passed and there was no possibility of his getting well.

This statement was taken by Roger C. Slaughter, an assistant prosecuting attorney of Jackson County, who later reduced it to writing and had it read to the deceased and signed by him that afternoon.

The testimony tended to show that the deceased had been told by Dr. Woodbury that he was going to die and deceased stated to Slaughter that he "knew he was going to die and that he wanted to tell his version of this story to clear it up." The deceased was very weak, it was hard for him to breathe and he could only speak a word or two at a time. After the statement was written, it was read to him and he said that there were one or two omissions that he wanted to add. These were added to the statement and it was signed by him with his mark, because he was so weak that the doctor did not want him to make the exertion necessary to write his name.

Four shots had penetrated his body, one lodging in his spine. Dr. Woodbury testified that he was very low at that time. There was no material change in his condition from the time he signed the statement until his death. After the statement was signed he stated on several occasions, "Won't they do something for me?"

The appellant contends that this statement shows that the deceased did not realize he was going to die, in other words, it shows that the deceased had not given up hope of recovery.

"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...