State v. Eaton

• Decision Date: 25 September 1941
• Docket Number: 37748
• Citation: State v. Eaton, 154 S.W.2d 767 (Mo. 1941)
• Parties: STATE v. EATON
• Court: Missouri Supreme Court

154 S.W.2d 767

STATE v. EATON

No. 37748

Supreme Court of Missouri, Second Division

September 25, 1941

Rehearing Denied October 25, 1941.

Waldo Edwards, of Macon, for appellant.

Roy McKittrick, Atty. Gen., and Olliver W. Nolen, Asst. Atty Gen., for respondent.

OPINION

TIPTON, Presiding Judge.

In the Circuit Court of Shelby County, Missouri, the appellant was convicted of murder in the first degree for killing Ethel Dingle on March 8, 1940, and was sentenced to life imprisonment in the state penitentiary. The defense offered was insanity. The only question appellant raises on this appeal is that the trial court erred in failing to instruct on murder in the second degree.

The essential facts to determine this question are as follows: The appellant and deceased were reared in the same neighborhood and had 'gone together' for many years. Appellant went to the state of Oregon and, while he was there, deceased married; later the appellant moved to the state of Illinois, and while living there attended an old-settler reunion in Shelby County, where he again met the deceased, who had been divorced; from this time on, he had gone with deceased over the objection of her parents; in January, 1940, she wrote appellant that they should not correspond with one another, nor should they go together any more.

On March 8, 1940, appellant drove from Palmyra to Shelbyville, and went to the schoolhouse early in the afternoon to talk with deceased, who told appellant that she did not want to see him any more; he left the schoolhouse and returned when school was out; about this time the deceased and Mrs. Keith, another school teacher, were getting into deceased's automobile when appellant inquired of deceased, 'Are you going out home?' to which she replied, 'I will talk to you here.' She then got out of her automobile and went toward the one in which the appellant was sitting; he got out of his car and picking up a shotgun from the seat, killed deceased with it. Just before the appellant was arrested next morning, he shot himself and was taken to a hospital in Mexico, Missouri. While there, he made the following confession, which was introduced in evidence by the state: 'I drove from Hot Springs, Arkansas, to Palmyra, Thursday night. I stayed there and went to Shelbyville on Friday, drove to the schoolhouse early in the afternoon and talked to Ethel in the hall of the school. I asked her to see her after school. She did not want to see me. I left and returned when school was out. I wanted her to come sit in the car with me so we could get our trouble corrected. She said, 'I don't want to go with you.' That must have enraged me. After that I hardly remember anything.'

It is on the basis of the statement contained in this confession that appellant contends he is entitled to an instruction on murder in the second degree.

'* * * The fundamental distinction between murder in the first degree and murder in the second degree is that deliberation is an essential element of murder in the first degree, but when deliberation is lacking the crime is murder in the second degree at law. State v. Liolios, 285 Mo. 1, 225 S.W. 941. 'Opprobrious epithets, insulting gestures, and the like are held to constitute just provocation in this state; and, where the passion or excitement of mind is produced by such provocation to the extent that it materially interferes with the judgment and reason, an act done at once, under its immediate influence, cannot, in law, be said to be done deliberately, and the actor cannot in law be said to be in a cool state of the blood.' State v. Bulling, 105 Mo. 204, loc. cit. 221, 15 S.W. 367, loc. cit. 371.' State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595, loc. cit. 597.

The question as to what would constitute such provocation was asked and answered by this court in the case of State v Kotovsky, 74 Mo. 247, loc. cit. 250, in the following language: '* * * What is such a provocation? An insult to a person, either by accusing him or a member of his immediate family of some infamous act, opprobrious words, or indecent gestures, which convey imputations of criminal baseness against a person or his family, sufficient to arouse in a man of ordinary pride and...