State v. Dipley

• Decision Date: 09 May 1912
• Citation: 147 S.W. 111
• Parties: STATE v. DIPLEY et al.
• Court: Missouri Supreme Court

147 S.W. 111

STATE v. DIPLEY et al.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

1. CRIMINAL LAW (§ 814)—INSTRUCTIONS—CIRCUMSTANTIAL EVIDENCE.

Where in a prosecution for homicide direct evidence of decedent's dying declaration, "I guess they have got me," was introduced, an instruction that the evidence as to the guilt of one of the defendants was entirely circumstantial should not have been given.

2. HOMICIDE (§ 234)—EVIDENCE.

In a prosecution for homicide, evidence held insufficient to justify the inference that one of the defendants was in any manner involved, and such as to require the court to direct an acquittal as to her.

3. JURY (§ 67)—SHERIFF DRAWING JURY—DISQUALIFICATION—INDISCREET CONDUCT.

That the sheriff and certain of his friends accepted the invitation of a friend of decedent, who was much interested in the prosecution of defendants for homicide, to visit a moving picture show of a prize fight in which decedent had been one of the actors, and the sheriff testified that they paid their own expenses, in the absence of any testimony to show any attempt to influence the sheriff in his official conduct, was insufficient to disqualify him from acting in summoning the jury to try accused.

4. JURY (§ 129)—CHALLENGE—GROUNDS.

A mere general request that certain jurors "be excused and discharged from the panel" without disclosing to the court the specific grounds of disqualification is insufficient.

5. JURY (§ 110)—TALESMEN — EXAMINATION —ORDER.

An objection that the court permitted examination of certain talesmen before two others

whose names appeared earlier on the list was unsustainable where it was not made until after the jurors had been examined.

6. JURY (§ 136)—PEREMPTORY CHALLENGES— DEFENDANTS JOINTLY TRIED.

Under Rev. St. 1909, § 5224, providing that when several defendants are tried together they shall join in their challenges, two defendants jointly tried for murder were only entitled to 20 peremptory challenges together.

7. HOMICIDE (§ 160)—EVIDENCE—CARRYING WEAPON—PURPOSE.

It is competent to prove why accused was carrying a weapon at the time of the difficulty in order to negative criminal purpose.

8. CRIMINAL LAW (§ 419, 420)—EVIDENCE— HEARSAY.

It is not competent to prove why either defendant or deceased were carrying weapons at the time of the encounter by statements made by them when not under oath.

9. CRIMINAL LAW (§ 695)—EVIDENCE—OBJECTIONS.

A general objection to evidence of statements by deceased when not under oath, as to reason why he was carrying a weapon, was insufficient to require its exclusion as hearsay.

10. CRIMINAL LAW (§ 1169)—APPEAL—RULINGS ON EVIDENCE—PREJUDICE.

Where defendants on cross-examination of state's witness proved that decedent had been carrying a revolver and shot with it before the difficulty, they were not prejudiced by evidence of decedent's declarations as to why he had carried the weapon, offered on redirect examination, that he carried it for target shooting, being merely a statement of the matter brought out by defendants.

11. HOMICIDE (§ 219) — DYING DECLARATIONS—CREDIBILITY OF DECLARANT.

When a dying declaration is admitted in evidence, the declarant's credibility may be attacked and sustained as in the case of a living witness.

12. WITNESSES (§ 345)—IMPEACHMENT—CONVICTION OF OFFENSE.

A witness may be impeached by proving that he has been convicted of a criminal offense.

13. CRIMINAL LAW (§ 444)—FOREIGN COURT RECORDS—CERTIFICATION.

A purported transcript of the judgment showing decedent's conviction of an offense in another state under the hand and seal of the police judge, but not showing that the judge was ex officio clerk of his court, and not otherwise authenticated in accordance with the requirements of the state or federal statutes, was properly excluded.

14. HOMICIDE (§ 219)—DYING DECLARATION —CREDIBILITY—CHARACTER OF DECEASED.

Where in a prosecution for homicide evidence of decedent's dying declaration was admitted and defendants offered evidence to prove that decedent was a prize fighter and had assaulted defendant's alleged wife prior to the homicide, such proof constituted an attack on decedent's character which authorized the state to introduce evidence of his good moral character to support his credibility.

15. HOMICIDE (§ 203) — EVIDENCE — DYING DECLARATION.

Defendant shot deceased through the lung and blood immediately commenced flowing into the pleural cavity, making his breathing difficult. When wounded, deceased did not go out of the house to give the alarm, but ran to his bed and did not leave it until removed by others; his condition continually grew worse. He suffered great pain and groaned. He stated he could tell from his breathing that he was shot through the lungs and "I guess they have got me," and "Yes, he told me to put up my hands, and I did not do it, and he shot me." Held, that the declaration was admissible as a dying declaration.

16. CRIMINAL LAW (§ 741)—PROVINCE OF COURT — INSTRUCTIONS — DYING DECLARATION.

It is not proper to charge that a dying declaration either is or is not entitled to the same credibility as if the declarant had been examined under oath and was testifying in court.

17. CRIMINAL LAW (§ 806) — TRIAL — INSTRUCTIONS—DEFINITION OF WORDS.

The words "feloniously, willfully, deliberately," etc., having been properly defined in an instruction, it was not necessary that the court define them in each instruction in which they were used.

18. CRIMINAL LAW (§ 814)—INSTRUCTIONS—DEFINITION OF TERMS.

There having been no evidence of just cause or provocation sufficient to reduce the grade of the homicide from murder in the first degree, the court did not err in failing to define the words "without sufficient reason, cause, justification, or excuse" and "lawful provocation."

19. HOMICIDE (§ 300) — SELF-DEFENSE — INSTRUCTIONS—EVIDENCE.

Where defendant shot and killed deceased while at a breakfast table, and he claimed that an altercation arose as they sat down to breakfast, in which decedent threatened to shoot defendant whereupon defendant sprang for his gun and shot deceased as deceased was trying to draw a revolver, the evidence justified an instruction that, if defendant voluntarily invited the difficulty with a felonious intent to kill decedent or do him some great bodily harm, then he could not avail himself of the law of self-defense.

20. CRIMINAL LAW (§ 829) —TRIAL — REQUESTED CHARGE—INSTRUCTIONS GIVEN.

When correct instructions are given, it is not error to refuse others though they correctly state the law.

21. CRIMINAL LAW (§ 730)—APPEAL—PREJUDICE —REMARKS OF COUNSEL.

During the argument of counsel for the state he addressed a juror by name and stated that it was not the first time within the juror's knowledge that an unsuspecting victim was placed at a window or door where he could be shot, and that the juror knew of a case where a man was placed at a window and was foully assassinated. On objection the court said that the remarks were improper and admonished counsel to keep within the record. Held that, in view of the court's corrective action, the error was not prejudicial.

22. CRIMINAL LAW (§ 730)—APPEAL—PREJUDICE—REMARKS OF COUNSEL.

A statement of the state's attorney in argument that the eyes of the people of the county and of the United States were on the jury to see if they were going to do their duty and convict defendant was not prejudicial where the court admonished counsel that the remarks were improper and that he must keep within the records.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Walter S. Dipley and Goldie Smith were convicted of murder in the first degree, and they appeal. Reversed as to Goldie Smith, and affirmed as to Dipley.

W. H. Rush, T. J. Delaney, and Clay & Davis, for appellants. The Attorney General and John M. Atkinson, Ass't Atty. Gen., for the State.

KENNISH, J.

Upon an information charging murder in the first degree for the killing of Stanley Ketchel, appellants were tried and convicted of that offense at the January term, 1911, of the circuit court of Webster county, and were sentenced to imprisonment in the penitentiary for life. They appealed to this court.

The crime was charged to have been committed on the 15th day of October, 1910, at said county, by the shooting of Ketchel with a rifle in the hands of the appellant Walter Dipley. Appellant Goldie Smith was charged as an accessory before the fact. No point is made on this appeal as to the sufficiency of the information.

The evidence tended to prove the following facts: R. P. Dickerson, a resident of the city of Springfield, Mo., owned a ranch in Webster county, upon which he employed four or five men, including a foreman. Stanley Ketchel was a noted young pugilist from Michigan. He had been visiting his friend Dickerson in Springfield for about two months preceding the homicide. It was understood that Bailey, the foreman of the ranch, was to quit the services of Dickerson and that Ketchel was to succeed him as foreman. Appellants were then respectively 24 and 22 years of age; Dipley being the older. They had been brought up in Christian county, which adjoins Webster county. They had known each other as school children, but both had left their home county a number of years before. Dipley had lived in Jasper county and had entered the naval service of the United States government, while appellant Goldie Smith had also resided at a number of different places. She had been twice married, and was not divorced from her second husband. She had been leading a wayward life, and Dipley was a deserter from the navy. Without prearrangement, on the 11th day of September, 1910, both had returned to Christian county to visit relatives and were thrown together in driving from the railway station to the neighborhood where their relatives resided. After recognition and a renewal of their acquaintance, it was agreed on the drive that they should...