State v. Dunn

• Decision Date: 09 December 1903
• Citation: 77 S.W. 848,179 Mo. 95
• Parties: STATE v. DUNN.
• Court: Missouri Supreme Court

77 S.W. 848

179 Mo. 95

STATE v. DUNN.

Supreme Court of Missouri, Division No. 2.

December 9, 1903.

HOMICIDE — INSANITY — EVIDENCE — UNCONTROLLABLE IMPULSE—EXPERTS—HYPOTHETICAL QUESTIONS—ARGUMENT OF COUNSEL.

1. Where, on a prosecution for murder, the evidence showed that deceased was sitting in a buggy, when defendant, standing in front of the buggy, discharged both barrels of a shotgun toward him, and that 11 shot were taken from the leg of deceased, and 10 from his breast, a contention that it was a physical impossibility for deceased to have been killed as claimed by the witnesses was without merit.

2. An expert witness may not be asked his opinion on a hypothesis including facts not shown by the evidence.

3. In stating a hypothetical question to an expert witness, it is competent for the examiner to assume as a fact a matter which has been testified to, though it was controverted by other witnesses.

4. On an issue as to the sanity of an accused, it is proper to include in a hypothetical question to a witness facts which have been testified to by the accused himself.

5. Where, on an issue as to the sanity of an accused, the trial court erroneously refused to permit a hypothetical question to defendant's expert to include facts testified to by defendant himself, but subsequently, during the examination of the expert, defendant's statements were included in the hypothetical question to the witness, the original error was cured.

6. Where, on a prosecution for murder, the defense was insanity, and the court excluded from a hypothetical question put to defendant's expert an assumption that there was no motive for the shooting, but there was substituted in the question an assumption that deceased and defendant were "close personal friends," the exclusion was not error.

7. On a prosecution for murder, where the defense was insanity, held, that the evidence showed no insanity such as constitutes a defense to crime, but merely an "uncontrollable impulse."

8. Where, on a prosecution for murder, a witness testified that defendant at the time of the crime staggered when he walked, and another witness stated that he was decidedly intoxicated, and there was evidence that he had taken three drinks that day, there was sufficient evidence to justify the jury in believing that he was more or less intoxicated.

9. On a prosecution for murder, it is not necessary to prove a motive.

10. Where, on a prosecution for murder, the defense was insanity, it was proper to refuse to receive evidence of a physician that defendant had told him some days prior to the crime that he believed himself going crazy.

11. On a prosecution for murder, the defense was insanity, and it was claimed by the defense that there was no motive. The state proved by various witnesses that a feeling of enmity had existed between the parties for more than a year, and a witness testified that defendant told him that he never wanted deceased to cross his path; and the witness was about to state the nature of the trouble, when the court ruled that he would not permit it to be shown further. Held, that it was not error for counsel for the state, in his argument to the jury, to say that there was some mysterious feeling of jealousy between the defendant and deceased, which, under the law, the state was not permitted to show.

12. In a criminal case, it was within the discretion of the court to permit counsel for the state to introduce evidence of which he had learned after the state had rested its case in chief.

13. On a prosecution for murder, evidence considered, and held sufficient to sustain murder in the first degree.

Appeal from Criminal Court, Buchanan County; B. J. Casteel, Judge.

Mark Dunn was convicted of murder in the first degree, and he appeals. Affirmed.

B. M. Lockwood and Myron S. Martin, for appellant. E. C. Crow and C. D. Corum, for the State.

GANTT, P. J.

This is an appeal from a conviction of murder in the first degree. The defendant was indicted in the criminal court of Buchanan county for the murder of Alfred M. Fenton on the 20th day of July, 1902. The indictment is sufficient and in the ordinary form. It is not questioned by defendant. The facts out of which this prosecution grew are, in substance, as follows:

On the night of the homicide the defendant was in Rushville, a town in Buchanan county. About 8 o'clock he was in conversation with Hally Conrad, Wez Yazel, Hally Chitwood, Luther Moberly, and perhaps other young men of that town, about 30 or 40 feet from Dr. Culver's drug store, in said village. Jeff Fenton, a brother of the deceased, was walking along the street, and, as he approached the above-mentioned group of young men, the defendant was swinging a 38 Colt's revolver on his finger, and, turning to Jeff Fenton, said: "Hold on a minute. Wait a minute and take a drink with me." Fenton replied that he did not care to take a drink, but the defendant insisted, and, to prevent trouble, Fenton drank with him. After so doing, defendant pulled Jeff Fenton by the shoulder, and told him he liked him and his brother Alf, and would die for them; that, although they had once had hard words, he had since worked for them, and was friendly to them now, and expected to remain so. Soon, however, this friendly tone changed, and he demanded to know of Jeff Fenton where his brother Alf was. Jeff attempted to excuse himself, saying he must go and take his wife and child home, to which defendant replied, "No you won't, G----d d----n you! you will never take them home again," and placed his hand in his shirt bosom and started to draw his pistol; but Moberly, a deputy sheriff, stepped in and said, "Consider yourself under arrest," and at the same time took defendant's pistol from him. He resisted the officer, and the latter called on Conrad to assist in arresting him. In attempting to subdue defendant, Moberly struck him with the revolver. They took him to a justice of the peace—Esquire Allison. The justice ordered him under arrest, and directed the officer to go after Jeff Fenton to make the complaint against defendant for disturbing the peace, and placed defendant in charge of Conrad and Merritt. They, however, released the defendant, who threatened to go home and get his gun and kill both Moberly and Jeff Fenton; that he would kill Moberly if it took him a thousand years. During the time they were at the house of Allison, the justice, defendant was very violent and abusive. Mrs. Allison begged him not to use such language, as her mother was old and infirm, and it would frighten her. At this time defendant had his trunk at the house of Mrs. Mary Stanton, where he stayed a portion of his time; and when Conrad released him he went to Mrs. Stanton's, got his shotgun, and left her house. Returning towards the business portion of the town, and carrying his gun in both hands, he met Charles Webb and Robert Page, and drew the gun on them and asked who they were; and, when they told him, he said, "All right; go on." Further on he halted Rev. Mr. Chapman, and demanded to know who he was, and, when he ascertained, said, "Oh, it's the preacher, is it?" and, asking to be excused, passed on down the street. After this he stopped Virgil Morrison about opposite the home of Luther Moberly, and thrust his gun in his face, but, when he discovered who it was, released him, saying: "I am hunting Luther Moberly or Jeff Fenton. I don't give a damn which one it is. I shall go and get them. I have got it in for them, and, by G---d! I am going to kill them"—and then started down the street. He also stopped other citizens in the same manner, and, when he found out who they were, said he was looking for Moberly or Jeff Fenton. Finally he came to where Jeff Fenton, Hally Chitwood, A. F. Shane, and others were standing. He went up to Jeff Fenton, working his gun, and said, "Who is that?" Fenton replied, "It is me, Mr. Dunn." Defendant then asked, "Jeff, have you got anything against me?" to which Fenton answered, "Nothing in the world, Mr. Dunn." After turning to the others, and finding out who they were, he said, "That is all right." About this time Alf Fenton, the deceased, Charles Sampson, and Cy Fisher drove up in a buggy. The defendant inquired of Jeff Fenton if that was not Alf's buggy, and Jeff said it looked like it. The defendant thereupon stepped out from the shade of the trees in which he was standing, and stopped the horse. He asked, "Is that you, Alf?" and Alf answered, "No," and started the horse; but the defendant stopped him again, whereupon Fisher and Sampson got out of the buggy. The defendant asked Alf Fenton who the parties were who had jumped out of the buggy, and he told him Fisher and Sampson. He then told them to get back, and Alf also requested them to do so, and they did so. The defendant then pointed his gun at Alf Fenton, placing the muzzle near to his face; and the latter caught the gun and attempted to push it away, whereupon defendant shot him twice, and Alf Fenton fell out of the buggy, and was heard to say, "Oh, you have killed me. What did you do it for?" Fisher had jumped from the buggy, and he knocked Dunn, the defendant, down. To his brother, Alf Fenton said: "Mark Dunn killed me, and I don't know what he done it for. Let me kill him before I die." The deputy sheriff, Moberly, came up, arrested defendant, and took him away. The defendant was not hurt but implored those around him not to kill him, saying he had killed Alf Fenton, but that Moberly was the cause of it. The deceased was unarmed at the time he was shot. There was an unloaded gun in the bottom of the buggy in which he, Fisher, and Sampson were riding. This gun had been obtained a little while before at the house of George Sanders, who testified it was not loaded at the time they got it, and Sampson testified they had not loaded it afterwards. The body of the deceased was searched immediately after the shooting, in the presence of a number of persons, and no...