State v. Dipley

• Decision Date: 09 May 1912
• Citation: 147 S.W. 111,242 Mo. 461
• Parties: THE STATE v. WALTER S. DIPLEY and GOLDIE SMITH, Appellants
• Court: Missouri Supreme Court

147 S.W. 111

242 Mo. 461

THE STATE v. WALTER S. DIPLEY and GOLDIE SMITH, Appellants

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from Webster Circuit Court. -- Hon. C. H. Skinker, Judge.

Affirmed as to appellant Dipley; reversed as to appellant Goldie Smith.

W. H Rush, T. J. Delaney and Clay & Davis for appellants.

(1) Defendants' request to instruct on all of the law indicating in such request the particular points to be covered, is sufficient upon which to predicate error for non-instruction. Laws 1901, p. 140; State v Weatherman, 202 Mo. 611; State v. Bond, 191 Mo. 555; State v. Chenault, 212 Mo. 132; State v. Barnett, 203 Mo. 657. Where instructions have been asked by defendant which are improper in form, this so far brings the matter to the attention of the court that it becomes the duty of the court to then give proper instructions. State v. Hendricks, 172 Mo. 670; State v. Moore, 160 Mo. 443; State v. Hawthorne, 166 Mo. 229; State v. Barton, 214 Mo. 316. (2) The court erred in admitting in evidence the declaration of Ketchel, as follows: "They got me." This evidence was admitted as a dying declaration, as shown by the record disclosing the examination by the court. It was improperly admitted as a dying declaration; none of the conditions existed justifying the statement as a dying declaration. In truth it was not a statement of any fact, or especially of any act done by Goldie Smith, but a mere conclusion signifying nothing that imports guilt. It is not a statement of any fact of the res gestae. State v. Parker, 172 Mo. 191; State v. Elkins, 101 Mo. 344; State v. Birks, 199 Mo. 263; State v. Partlow, 90 Mo. 608; State v. Parker, 96 Mo. 382; State v. Chambers, 87 Mo. 406; State v. Simon, 50 Mo. 370; State v. Kellerher, 201 Mo. 614. Even if such testimony were admissible as a dying declaration, the court should have declared the law thereon. The direct positive request was made by defendants upon the court so to do. When such evidence is admitted, it should be weighed with great caution, and the jury should have been so instructed. State v. Horn, 204 Mo. 546; State v. Parks, 172 Mo. 191. The defendants requested the court to instruct on the law of dying declarations and the failure of the court to do so is error. This was done in a special request in writing. The failure of the court to so instruct was called to the attention of the court in the motion for a new trial, and exceptions to the action of the court were saved in the bill of exceptions. State v. Finley, 193 Mo. 202; State v. Cantlin, 118 Mo. 111; State v. Groves, 194 Mo. 452; State v. McGarver, 194 Mo. 717; State v. Bond, 191 Mo. 555; State v. Weatherman, 202 Mo. 6; State v. Chenault, 212 Mo. 132. (3) It is not sufficient to correctly state the law authorizing, on the producing of certain facts, a finding of guilt, or declaring a certain conclusion from the producing of certain facts. The other party is entitled to the converse proposition. Thus it is not sufficient to declare that if certain facts are found, the defendant is guilty. The converse should also be stated that unless certain facts are found, the defendant is not guilty. We were entitled to clear cut declarations on the law of threats, law of self-defense, law of good character, without the tailings which rob defendant of the force of such declarations. Harwood Co. v. Dent, 121 Mo.App. 108; State v. Shour, 196 Mo. 202; State v. Walker, 196 Mo. 73. (4) The instructions given by the court do not properly declare the law. Instruction 2 (a) does not explain or define the terms feloniously, wilfully, deliberately, etc.; (b) nor does it make reference to any other instruction by which these terms are defined; (c) it does not submit to the jury the question whether or not the defendant Dipley feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought shot deceased. State v. Emerich, 87 Mo. 110. Instruction 6 is erroneous in this: In addition to the use of the well understood terms "just cause, justification, extenuation or excuse," the further words are used "or sufficient reason." This term is not defined in any instruction. To a legal mind this might convey the same idea as the other clauses; but juries are not required to possess legal acumen, and the rights of a defendant are not to be jeopardized by putting up to them questions of construction. State v. Darah, 152 Mo. 532. This term leaves the jury to its own notions of what constitutes "sufficient reason." The use is not justified by precedent, and like all innovations is dangerous and likely to be misleading. Under such an instruction, the jury might well find there was "just cause or excuse" in a legal sense for the act of defendant Dipley, as those terms are defined by the court, and yet from their own personal views and opinions the reason for his conduct may not appear sufficient. To a layman, it must have a different meaning from the other terms, else why use it? What might appear to one mind as sufficient reason may not satisfy another; and where language used is susceptible of various meanings, the meaning intended should be defined. Instruction 10 does not correctly advise the jury how to weigh circumstantial evidence. It is not sufficient to advise the jury that "the evidence must be inconsistent with any reasonable theory of her innocence." It should have declared that such evidence must be strong enough "to exclude every reasonable hypothesis other than the guilt of defendant." Instruction 34 should have been given, as immorality does not impair the right of self-defense. This instruction tells the jury that the facts that Dipley was living in adultery and was a deserter did not impair his right of self-defense. Especially should this have been given for the State to be fair as prejudice naturally arose against defendants on account of the relations maintained.

Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.

(1) The discretion of the trial court in refusing to disqualify a sheriff on motion of either side will not be disturbed on appeal unless the proof clearly shows an abuse of the trial court's discretion in such ruling. State v. Leabo, 89 Mo. 252; State v. Mathews, 98 Mo. 121; State v. Hultz, 106 Mo. 51; State v. Lanahan, 144 Mo. 38; State v. Hunter, 181 Mo. 333. (2) The statement made by deceased was before any trouble arose between him and Dipley. It was competent to show in proof that Ketchel was in the habit of carrying the pistol for target practice. This refuted the theory of the defense that he was only carrying the pistol on the morning of the shooting, anticipating trouble with Dipley, for the alleged insult offered to appellant Smith on the afternoon prior thereto. This assignment is without merit and should be ruled against appellants. (3) The dying declaration was properly admitted in evidence. All the physical facts show Ketchel had received a mortal wound and that death was on him in less than an hour after he was shot. These facts speak louder than mere words of deceased. The law of dying declarations recognize such to be the rule. State v. Brown, 188 Mo. 460-62; State v. Kelleher, 201 Mo. 637; State v. Craig, 190 Mo. 338-41; State v. Nocton, 121 Mo. 549; State v. Kelleher, 224 Mo. 145; State v. Gow, 235 Mo. 326.

KENNISH, J. Ferriss, P. J., and Brown, J., concur.

OPINION

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 Spring-field, Missouri, 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 twenty-four and twenty-two 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 pre-arrangement, 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 represent themselves as husband and wife, and afterwards it was agreed that they should live in that relation and form it in fact as soon as Mrs. Smith was free to marry. After a short stay with their relatives they went to Springfield, representing themselves as husband and wife,...