State v. Davis, No. 33975.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtTipton
Citation84 S.W.2d 930
PartiesTHE STATE v. EDGAR L. DAVIS, Appellant.
Docket NumberNo. 33975.
Decision Date11 July 1935
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

84 S.W.2d 931

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...

To continue reading

Request your trial
4 practice notes
  • State v. Woodard, No. KCD
    • United States
    • Missouri Court of Appeals
    • September 4, 1973
    ...hope of recovery has been abandoned.' State v. Custer, 336 Mo. 514, 80 S.W.2d 176, 177 (Mo.1935). See also State v. Davis, 337 Mo. 411, 84 S.W.2d 930 (1935) and State v. Proctor, 269 S.W.2d 624 (Mo.1954). Belief of 'impending death' and abandonment of 'hope of recovery', both of which are c......
  • State v. Vincent, No. 46849
    • United States
    • United States State Supreme Court of Missouri
    • March 9, 1959
    ...to show that such wounds were not the natural and ordinary consequences of defendant's intentional acts. See State v. Davis, 337 Mo. 411, 84 S.W.2d 930, 932; State v. Hogan, 352 Mo. 379, 177 S.W.2d 465. The answer of defendant, which were not stricken from the record after the objections we......
  • State v. Crow, No. 33997.
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1935
    ...30, l.c. 33, 322 Mo. 69.] A number of assignments of error in the motion for a new trial were not briefed by appellant. They have been 84 S.W.2d 930 examined and found to be without merit. One of these assignments challenges the sufficiency of the evidence to sustain a conviction. The facts......
  • State v. Woodard, No. KCD
    • United States
    • Missouri Court of Appeals
    • March 3, 1975
    ...death and has abandoned hope of recovery. State v. Custer, 336 Mo. 514, 80 S.W.2d 176, 177(1, 2) (1935); State v. Davis, 337 Mo. 411, 84 S.W.2d 930 (1935), and State v. Proctor, 269 S.W.2d 624 (Mo.1954). However, it is not necessary that declarant state that he is dying or that death immedi......
4 cases
  • State v. Woodard, No. KCD
    • United States
    • Missouri Court of Appeals
    • September 4, 1973
    ...hope of recovery has been abandoned.' State v. Custer, 336 Mo. 514, 80 S.W.2d 176, 177 (Mo.1935). See also State v. Davis, 337 Mo. 411, 84 S.W.2d 930 (1935) and State v. Proctor, 269 S.W.2d 624 (Mo.1954). Belief of 'impending death' and abandonment of 'hope of recovery', both of which are c......
  • State v. Vincent, No. 46849
    • United States
    • United States State Supreme Court of Missouri
    • March 9, 1959
    ...to show that such wounds were not the natural and ordinary consequences of defendant's intentional acts. See State v. Davis, 337 Mo. 411, 84 S.W.2d 930, 932; State v. Hogan, 352 Mo. 379, 177 S.W.2d 465. The answer of defendant, which were not stricken from the record after the objections we......
  • State v. Crow, No. 33997.
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1935
    ...30, l.c. 33, 322 Mo. 69.] A number of assignments of error in the motion for a new trial were not briefed by appellant. They have been 84 S.W.2d 930 examined and found to be without merit. One of these assignments challenges the sufficiency of the evidence to sustain a conviction. The facts......
  • State v. Woodard, No. KCD
    • United States
    • Missouri Court of Appeals
    • March 3, 1975
    ...death and has abandoned hope of recovery. State v. Custer, 336 Mo. 514, 80 S.W.2d 176, 177(1, 2) (1935); State v. Davis, 337 Mo. 411, 84 S.W.2d 930 (1935), and State v. Proctor, 269 S.W.2d 624 (Mo.1954). However, it is not necessary that declarant state that he is dying or that death immedi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT