State v. Deitz
| Decision Date | 20 June 1911 |
| Citation | 138 S.W. 529,235 Mo. 332 |
| Parties | THE STATE v. CARL DEITZ, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Henry L. Bright, Judge.
Reversed and remanded.
A. F Gonder and Walden & Mathews for appellant.
(1) Instruction 9 is bad. The evidence showed that statements made by defendant were made while defendant was delirious from the wound in his head, and under such circumstances it was erroneous to instruct the jury that statements by defendant against himself are presumed to be true. The instruction should have been qualified to require the jury to find that the defendant was in a condition of mind that he understood the statements when made. State v. Webb, 216 Mo. 391. (2) Instruction 17 is erroneous. It tells the jury that the defendant is entitled to the benefits of what he said in his own behalf, but required the jury to consider such statements with caution. As the defendant testified in this case this instruction might easily be construed to comment on defendant's testimony offered at the trial and tell the jury to receive them with caution, making it prejudicial to defendant. (3) The remarks of State's counsel were highly prejudicial and were a comment on the defendant's failure to testify to particular facts, which constituted reversible error, and the court permitted the attorney to repeat his remarks three times without rebuke of any kind. State v. James, 216 Mo. 202; State v Graves, 95 Mo. 510; State v. Elmer, 115 Mo 401; State v. Raulamb, 121 Mo. 137; State v. Quinn, 174 Mo. 688; State v. Miles, 199 Mo. 552; State v. Spiva, 191 Mo. 87; State v. Woodward, 191 Mo. 617. The abusive and improper remarks of the prosecuting attorney, and the failure of the court to rebuke the attorney when his attention was called to the same, were highly prejudicial to defendant, and reversible error. State v. Bobest, 131 Mo. 338; State v. Jackson, 95 Mo. 623; State v. Nerich, 110 Mo. 350; State v. Fisher, 124 Mo. 460; State v. Upton, 130 Mo. 316; State v. James, 216 Mo. 394; State v. Clapper, 203 Mo. 549. The prosecuting officers, even in the heat of debate, ought not to forget that they owe a duty to the defendant as well as to the State; to the State, to fairly prosecute and endeavor to secure conviction by all proper and legitimate methods; to the defendant, to refrain from doing and saying aught which the highest sense of professional honor will not sanction. State v. Pagels, 92 Mo. 300; State v. Pushon, 33 Mo. 44. If the prosecuting attorney is permitted by the trial court, in spite of the objections from the defendant, to address improper remarks to the jury, the Supreme Court will reverse the judgment. State v. Johnson, 76 Mo. 121. Mere personal abuse of the prisoner is not to be tolerated in any tribunal that calls itself a court of justice. State v. Yound, 99 Mo. 666.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) Instruction 9 is a full, fair and complete instruction upon statements made by appellant instructing the jury how to consider such statements. State v. Coleman, 186 Mo. 160; State v. Henderson, 186 Mo. 473. (2) Instruction 17 is a correct instruction defining the rules under which the jury should consider the statements and conversations of the defendant. See authorities cited under point one. (3) Appellant testified that on the evening of the homicide he was at the store twice looking for his wife. It is true that he did not deny saying what the clerk stated he said at the store on his last visit there. The court sustained the objection. No harm can be predicated upon this remark of the attorney.
On September 14, 1909, an information was filed in the circuit court of Jasper county, charging the defendant with murder in the first degree in having shot and murdered his wife, Josephine Deitz, on August 14, 1909, in the city of Joplin. On February 5, 1910, defendant was put upon his trial, and on February 9, 1910, he was convicted by the jury of murder in the second degree and was sentenced to twenty-five years in the penitentiary. In due time he perfected his appeal to this court.
The defendant had been jealous of the attentions of other men to his wife. They lived with Mrs. Crane, the mother of Mrs. Deitz. The evidence of Mrs. Crane is that the three took supper together, and that defendant and his wife quarreled, when the mother went into the yard and Deitz went to town and was gone more than an hour and returned. In the meantime Mrs. Deitz had gone to the grocer's and paid a bill and had come back. When Deitz returned Mrs. Crane was in the front yard, and Deitz and his wife went on the back porch. Mrs. Crane heard the wife scream and heard the two shots. When the second shot was fired, Mrs. Crane was half through the dining room and saw the flash.
Mrs. Deitz was lying down, and Deitz was lying with his feet against her face, and when he came to he kept kicking her until they moved him. She lived about fifteen minutes. Mrs. Crane testified to threats by defendant that he would kill his wife and himself. Before he left, after supper, he gave his wife money to pay the grocer's bill.
Mr. Williams testified that he lived in the adjoining house and heard a woman scream and then the gunshots, and when he got there Deitz was lying with his feet against his wife's head. That Deitz, when he came to, said, "Where is my wife, bring her to me; she drove me to it and made me do it." When they picked them up, the revolver was lying under the side of her shoulder.
Dr. Baird testified:
Mr. Carmichael testified: When they got him in the front yard he called for water.
John Anderson testified: I am a grocer. That evening Deitz asked me if his wife had been in yet. I told him no, and he went out. Then his wife came in and paid her bill and after she was gone, he came in again and asked if she had been there. I told him yes and that she had paid her bill and he said, "All right," and turned around and said, "By God, I will find her," or, "Damn her, I will get her."
Clarence Kier, deputy sheriff, testified: After defendant was arrested he said he did the shooting. He had the wound in the side of his head at the time and the brains were oozing out. He was in a semiconscious state. He wasn't natural. I could see he wasn't natural, couldn't articulate plain. He was in a paralyzed state. He recognized me and some others. I talked with him as late as one or two o'clock the next morning after we had removed him down stairs from the doctor's office and he then said he was sorry he didn't get the bullet wound lower in his head, and that he was sorry he did what he did; that was shortly after the shooting, after midnight. On the next day he was not in his right mind.
Dr. Winchester, for defendant, testified:
Dr. J. M. Winchester testified: I treated Deitz at the police station. There was a gunshot wound on right side in which the bullet had gone through the skin and bored just beneath, seemed like it had just cut a curve in the bone and just creased the end of the brain and the bullet was lying at the upper edge of the skull, and of course there was a good deal of blood there. He lost a little bit of brain tissue. There were no powder-burns.
The defendant testified: After quitting work I went home, took a bath, went up town, was gone an hour, went back home and had supper. I got $ 15.25 in wages and gave my wife $ 13 to pay grocery bill. I went to the grocery to look for her, before supper and after supper. The first time she had not been there. The last time, she had been there and paid the bill. When I got home my wife's mother was in front yard. I went in the house and talked with my wife. I told her I was going to leave her. We had had several quarrels and couldn't get along. We was mismated, our marriage was a failure. I said wasn't there a man out here to-day? She says why? and I says, "This evening when I came home from work wasn't there a cigarette butt in the cuspidor?" and she says, "No," and after other quarreling I started to leave her and she said, I went on the porch, she then came out. We quarreled and she told me she had been intimate with a man, a banker, and I told her if she was as bad as that I can't live with you any longer and I started to rise and she shot me.
The instructions were in the usual form and beyond criticism, except as hereafter shown. The following were among the instructions:
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