State v. Eaton

• Decision Date: 10 June 1946
• Docket Number: 39775
• Citation: State v. Eaton, 195 S.W.2d 457, 355 Mo. 164 (Mo. 1946)
• Parties: State v. James G. Eaton, Appellant
• Court: Missouri Supreme Court

195 S.W.2d 457

355 Mo. 164

State v. James G. Eaton, Appellant

No. 39775

Supreme Court of Missouri

June 10, 1946

Rehearing Denied July 8, 1946.

Appeal from Buchanan Circuit Court; Hon. Maurice Hoffman Judge.

Affirmed.

J V. Gaddy and Waldo P. Goff for appellant.

(1) It has been held by a long line of authorities in this State that it was reversible error to permit the exhibition of clothing worn by the deceased at the time of the homicide when the corpus delicti had been established or had been admitted where the character and nature of the wounds were not in question, where the identity of the deceased was not in question, and unless it did tend to prove some fact in issue it could only be offered for the purpose of inflaming the minds of the jury. State v. Porter, 276 Mo. 387; State v. Creed, 299 Mo. 307, 252 S.W. 678; State v. Rennison, 306 Mo. 473, 267 S.W. 850; State v. Pearson, 270 S.W. 347; State v. Clough, 327 Mo. 700, 38 S.W.2d 39; State v. Sterling, 72 S.W.2d 70; State v. Long, 80 S.W.2d 154. (2) Instruction 7 has been criticised many times by this court and is held to be error where it was objected to by the court at the time of the trial or in the motion for new trial. The last two paragraphs of this instruction took from the defendant the right to act on appearances and permitted the jury to say, many months after the controversy was over, whether the defendant had actual reason to believe that he was in danger at the time of the shooting. State v. Banks, 258 Mo. 479; State v. Darling, 202 Mo. 150.

J. E. Taylor, Attorney General, and J. Martin Anderson, Assistant Attorney General, for respondent.

(1) The court did not err in permitting the introduction and exhibition of State's Exhibit G, the coat worn by the deceased at the time of the homicide. State v. Shawley, 67 S.W.2d 74, 334 Mo. 352; State v. Lewis, 137 S.W.2d 465; State v. Porter, 207 S.W. 774, 276 Mo. 387; Chapa v. State, 191 S.W.2d 729. (2) The court did not err in giving Instruction 7. State v. Gee, 85 Mo. 647; State v. Parker, 17 S.W. 180, 106 Mo. 217; State v. Greaves, 147 S.W. 973, 243 Mo. 540; State v. Revard, 106 S.W.2d 906, 341 Mo. 170.

OPINION

Hyde, P.J.

Defendant was found guilty of murder in the second degree and sentenced to eighteen years in the penitentiary. On his appeal defendant raises only two points: The introduction in evidence and exhibition to the jury of an army overcoat worn by the deceased, William Van Ross, at the time he was shot by defendant; and the giving of Instruction No. 7 covering self-defense.

Defendant and Harold Simmonds had an argument with Andrew Hawkins, a colored man, at the Harlem Club in St. Joseph, during which Hawkins drew a gun on Simmonds. After visiting other places and taking several drinks of whiskey, they went back. According to the State's evidence, Simmonds said: "I am looking for that nigger Hawkins . . . him or any other nigger"; and defendant said: "yes, we came after a nigger". (Another witness testified that Simmonds said: "We came to kill him . . . If we can't find him any nigger will do"; and that defendant said: "that is right".) Deceased, a discharged negro veteran still in uniform, was at the tavern bar. He said: "I can't stand that; you don't want to use them words in here"; and ran over, grabbed Simmonds as he was putting his hand in his pocket, and pinned his arms down by his side. Deceased was facing Simmonds with his back toward defendant who was about eight feet away. (One witness said 15 or 20 feet.) Defendant drew a pistol and shot several times. The first shots went into the wall but two bullets went into deceased's back. The State's witnesses saw no weapon of any kind in deceased's hand and there is no evidence that any was found after he was killed. One witness said that defendant told deceased to turn Simmonds loose and said: "If you don't turn him loose I am going to shoot you".

After the eyewitnesses to the shooting testified, the State offered in evidence the overcoat worn at the time by deceased. The following occurred:

"Judge Gaddy: The Prosecuting Attorney is now exhibiting a soldier's overcoat with blood on it in the presence of the jury. It can be offered for no other purpose than that of prejudicing the jury in this case, and is inadmissible for any purpose, and the exhibiting of the coat in court is for the purpose of inflaming the minds of the jury and for that purpose only.

"Mr. Sherman: I am not necessarily exhibiting it to the jury. I am offering it for the purpose of identification and the coat will be substantial evidence to verify previous evidence that the bullets went through this coat in the back of the deceased.

"The Court: The objection will be overruled." (Exception saved.)

The coat was received in evidence over the same objection, after being identified by the undertaker who removed deceased's body from the tavern. The undertaker said that the holes in the overcoat were in line with fresh wounds which he found in deceased's back. Thereafter, two physicians also testified about the location of these wounds.

Defendant's evidence (defendant and Simmonds) was that deceased struck at defendant with a knife; that defendant slid down the bar away from him; that deceased was about to strike again when Simmonds seized his right hand with his left; that Simmonds put his right hand in his pocket to get his knife and deceased grabbed his right hand holding it in his pocket. While they were thus holding each other and Simmonds was yelling and screaming, defendant shot to scare deceased and cause him to let go of Simmonds, but that when he would not do so he shot him. Defendant was crippled and walked with a cane. He said he thought he had no chance if deceased got the best of Simmonds, and "was scared to death, afraid he was going to cut my head off or something." Simmonds made a statement to the police on the day of the shooting in which he said he did not know that deceased had a knife and that he did not see anything in his hand. However, at the trial Simmonds explained this statement by saying that he made it while under the influence of liquor and did not know what he said.

Defendant relies on State v. Long, 336 Mo. 630, 80 S.W.2d 154 in which we held it improper to exhibit clothing to the jury, saying: "The bloody clothing worn by the deceased could not in any manner have aided the jury in arriving at a verdict. They would not tend to connect the accused with the crime, prove the identity of the deceased, or show the nature of the wound." However, in that case there was no issue of self-defense and defendant denied that he inflicted the wounds from which deceased therein died. In that case, the state relied upon circumstantial evidence to prove that defendant therein committed the murder and this court held it insufficient. In this case, the location of the bullet holes in the overcoat tended to corroborate the state's witnesses to the effect that deceased was not attacking defendant and thus was relevant upon the issue of self-defense. [State v. Lewis (Mo. Sup.), 137 S.W.2d 465; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74 and cases cited.] Defendant's contention was that everything, which the state claimed about the wounds and deceased's position at the time he was shot, had been admitted as in the Long case. However, defendant was asked on cross-examination about deceased's position and "where was he facing?" He answered: "I don't know. I am sliding on that bar and reaching for that gun and shooting and thinking. The...