State v. Dietz

• Decision Date: 20 June 1911
• Citation: 235 Mo. 332,138 S.W. 529
• Parties: STATE v. DIETZ.
• Court: Missouri Supreme Court

138 S.W. 529

235 Mo. 332

STATE v. DIETZ.

Supreme Court of Missouri, Division No. 2.

June 20, 1911.

1. CRIMINAL LAW (§ 823)—ADMISSIONS OF ACCUSED—INSTRUCTIONS.

An instruction that the statements of accused, who attempted suicide after fatally shooting his wife, must be considered together, and that the jury must consider under the evidence how much of the statements may be deemed worthy of belief, must be read with another instruction that, if accused did not understand what he was saying when he made the statements proved, the statements cannot be considered, and is not defective for failing to require the jury to find that accused understood the statements when made.

2. CRIMINAL LAW (§ 1163)—IMPROPER ARGUMENT OF COUNSEL.

Where the prosecuting attorney in his argument to the jury went outside of the limits allowed by law, and, after being called to order by the court, he repeated the offense instantly, and in the face of the court's ruling, the court, on appeal, must presume that the improper argument influenced the jury to the prejudice of accused who, though he might have been convicted without the argument, might have received a lighter punishment if the improper argument had not been made.

3. CRIMINAL LAW (§ 730)—IMPROPER ARGUMENT OF COUNSEL.

Ordinarily the error of the prosecuting attorney in going outside the limits allowed by law in his argument to the jury is not cause for reversal, where he is rebuked by the trial court.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Carl Dietz was convicted of murder in the second degree, and he appeals. Reversed and remanded.

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 Dietz, 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 he was sentenced to 25 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. Dietz. 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 Dietz went to town, and was gone more than an hour, and returned. In the meantime Mrs. Dietz had gone to the grocer's and paid a bill, and had come back. When Dietz returned Mrs. Crane was in the front yard, and Dietz 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. Dietz was lying down, and Dietz was lying with his feet against her face, and, when he came to, he kept kicking her until they moved him. She lived about 15 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 gun shots, and, when he got there, Dietz was lying with his feet against his wife's head; that Dietz, 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: "I am coroner of the county. I held the inquest over the deceased. There was a gun shot wound on left side of skull, near the median line, and about an inch or two above the base of the skull. The wound went inward and slightly down. Her hair about the wound was slightly powder burned, and there were powder burns on the left arm slightly below elbow on outside. I don't think the wound could have been self-inflicted."

Mr. Carmichael testified: When they got him in the front yard, he called for water.

John Anderson testified: "I am a grocer. That evening Dietz 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 he 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 1 or 2 o'clock the next morning after we had removed him downstairs 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: "I examined both wounds. Her wound was close to center of back of head, just a little above the hair line, right at the base of the skull. I removed the ball from the wound of Dietz at the police station. It penetrated the skull, and he lost between a teaspoonful and a tablespoonful of brain matter. There were no powder burns around the wound. From the course of the bullet, it could have been self-inflicted; but it couldn't have been self-inflicted without either singeing the hair or powder burning."

Dr. J. M. Winchester testified: "I treated Dietz at the police station. There was a gun shot 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 uptown, 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 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, `Don't you leave me. If you do, I will kill you. Let's go out on the porch and talk it over.' I went on...