State v. Evans

• Decision Date: 22 November 1939
• Docket Number: 36715
• Parties: The State v. James Evans, Appellant
• Court: Missouri Supreme Court

133 S.W.2d 389

345 Mo. 398

The State v. James Evans, Appellant

No. 36715

Supreme Court of Missouri

November 22, 1939

Appeal from Laclede Circuit Court; Hon. W. E. Barton Judge.

Affirmed.

Phil M. Donnelly and J. Andy Zenge, Jr., for appellant.

(1) The court erred in excluding testimony of defense witnesses to the effect that defendant was insane and did not know or could not tell right from wrong. Moore v. Moore, 67 Mo. 196; State v. Erb, 74 Mo. 205; Appleby v Brock, 76 Mo. 317; State v. Bryant, 93 Mo. 299; State v. Speyer, 194 Mo. 468; State v Murphy, 90 S.W.2d 111; Conn. Mut. Life Ins. Co. v. Lathrop, 28 L.Ed. 538; Kelley's Criminal Law & Procedure (4 Ed.), p. 36, sec. 40; Cambest v. McComas Hydro El. Co., 239 S.W. 486; State v. Porter, 213 Mo. 64. (2) The court erred in refusing to give Instruction A on behalf of the defendant. State v. Miller, 255 S.W. 915. (3) The court erred in refusing to give Instruction B on behalf of the defendant. State v. Miller, 225 S.W. 915. (4) The court erred in refusing to give Instruction C on behalf of the defendant. State v. Schaefer, 116 Mo. 110; State v. Liolios, 252 S.W. 622; Kelley's Criminal Law & Procedure (4 Ed.), p. 38, sec. 41. (5) The court erred in giving Instruction 3 on behalf of the State. Sec. 3681, R. S. 1929. (6) The court erred in giving Instruction 4 on behalf of the State. State v. Vaughn, 200 Mo. 22; 16 C. J., pp. 1046, 1047, sec. 2486. (7) The court erred in giving Instruction 5 on behalf of the State.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) Appellant's assignment of error one is not specific enough to preserve anything for review. State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Hohensee, 62 S.W.2d 436, 333 Mo. 161; State v. Todd, 116 S.W. 113; State v. Barbata, 80 S.W.2d 865, 336 Mo. 362; In re Bearden, 86 S.W.2d 585; State v. George, 173 S.W. 1072, 263 Mo. 577; State v. McCann, 47 S.W.2d 95, 329 Mo. 748. (2) The court did not err in refusing to give defendant's requested Instructions A, B, and C. State v. Nasello, 30 S.W.2d 132, 325 Mo. 442; State v. Jenkins, 37 S.W.2d 433, 327 Mo. 326; State v. Davis, 58 S.W.2d 305. (3) The court did not err in giving Instruction 3. State v. Nasello, 30 S.W.2d 132, 325 Mo. 442. (4) The court did not err in giving Instruction N. State v. Duestrow, 137 Mo. 69, 38 S.W. 554, 39 S.W. 266; State v. Barbata, 80 S.W.2d 865, 336 Mo. 370; State v. Pogels, 92 Mo. 315, 4 S.W. 931; State v. Sharp, 233 Mo. 293. (5) The court did not err in giving Instruction 5. State v. Duestrow, 137 Mo. 73, 38 S.W. 554, 39 S.W. 266. (6) The court did not err in allowing the verdict to stand and the verdict was not based on bias and prejudice. State v. McGee, 83 S.W.2d 98, 339 Mo. 1066; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066; State v. Golden, 51 S.W.2d 91, 330 Mo. 784; State v. Shawley, 67 S.W.2d 74, 334 Mo. 352. (7) The trial court did not err in refusing to grant a new trial on account of prejudicial argument of the prosecuting attorney. State v. Napoli, 44 S.W.2d 57; State v. Arnett, 92 S.W. 897, 338 Mo. 907; State v. Lynn, 23 S.W.2d 139; State v. Trout, 116 S.W.2d 103. (8) The court did not err in allowing the introduction of the written statement of the defendant. State v. Richardson, 102 S.W.2d 653, 340 Mo. 680; State v. Rowland, 79 S.W.2d 1050, 336 Mo. 563, 102 A. L. R. 601; State v. Hoskins, 36 S.W.2d 909, 327 Mo. 313; State v. McGuire, 39 S.W.2d 523, 327 Mo. 1176.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Appellant, defendant below and whom we shall call defendant, was convicted in the Circuit Court of Laclede County of murder in the second degree, for the killing of one Manuel Noble, sentenced, pursuant to the verdict of the jury to ten years' imprisonment in the penitentiary, and has appealed. The homicide is virtually admitted -- at least it is shown by all the evidence, is not denied and may be taken as an established fact. The only defense offered was the alleged insanity or mental incapacity of the defendant.

The defendant, at the time of the homicide, was a man thirty to thirty-five years of age, living with his father, Jack Evans, at the latter's home, a two room house or cabin. The father was not at home at the time of the homicide. On Sunday, September 4, 1938, defendant, James (or "Jim") Evans, Manuel Noble (the deceased), and several other young men were at the Evans' home. In the forenoon defendant and Noble engaged in a friendly wrestling match. Defendant was thrown and his head or scalp was cut by coming in contact with a rock or some object on the ground. He at the time manifested no ill feeling because of this episode, nor did Noble. Later Noble engaged in wrestling with others present and perhaps there were other wrestling contests between others present, but there was no manifestation of ill will or ill temper between or among any of those present. Later in the day, Noble, who was lying on the ground, suggested -- it seems jocularly -- that they ought to "tin can" a dog that was playing around in the yard, and have some fun. (We understand from the record that "tin canning" meant tying a tin can to the dog's tail.) When Noble made this suggestion, defendant, who was then "squatted" on his heels some eight or ten feet from Noble, leaped forward, without saying anything, sprang upon Noble and at once began stabbing Noble with a knife. He stabbed Noble several times before he could be "pulled off" by those present. Noble died the next day from the wounds so received. It does not appear that anything had been said or done by anyone present calculated to arouse resentment except the suggestion of Noble that they "tin can" the dog. It is not clearly shown whether the dog belonged to defendant or to his young nephew. It seems, however, that defendant was fond of the dog, whether it actually belonged to him or not. The dog was of no particular breeding or commercial value. In this connection we are reminded of the words of a Missouri song -- (We quote from memory).

"Makes no difference if he is a hound, You gotta quit kickin' my dog around."

There was evidence from both the State's and the defendant's sides tending to show that the defendant was a person of inferior mental capacity. He was classified as a moron by doctors, testifying both on behalf of the State and the defendant. He was characterized by most of the witnesses as "not bright," and we think the evidence as a whole justifies the conclusion that he was of somewhat subnormal mentality. Yet we think there was sufficient substantial evidence to sustain the finding which the jury made, as shown by its verdict, that he knew right from wrong -- knew that the act he was committing was wrong -- in short that he was sane within the meaning of the law so as to be responsible in a criminal prosecution for such act. See for discussion of this proposition, State v. Duestrow, 137 Mo. 44, 38 S.W. 554. The principal instruction on insanity is substantially the same as instructions given and by this court approved in State v. Duestrow, supra, q. v. [See, also, on this point State v. Barbata, 336 Mo. 362, 80 S.W.2d 865; State v. Pagels, 92 Mo. 300, 4 S.W. 931.] There is, however, one paragraph in the instruction on insanity which we do not find in the instruction given on that subject in the Duestrow case. It reads:

"And in this connection you are further instructed that excitement or frenzy arising from passion of anger, hatred or revenge, no matter how furious, if not the result of a diseased mind, do not constitute legal insanity, and the jury should not confuse excitement, anger or wrath, or acts done under the influence of either or both for the purpose of revenge, with actual insanity, such as is recognized by law."

The criticism of this portion of the instruction is that it refers to excitement or frenzy, arising from passion of (or?) anger, hatred or revenge . . . if not the result of a diseased mind . . .", etc. The complaint seems to be twofold, viz.: -- First, that there was evidence tending to show that defendant's mental condition was due not to a diseased mind but to an undeveloped mind, and that the instruction was therefore inaccurate and confusing; second, that there was no evidence of "anger, hatred or revenge."

As to the first contention: In addition to the main instruction on insanity the court gave, at the request of the State, the following instruction, No. 5. (We quote it in full because, while it also refers to voluntary drunkenness, that subject must be referred to hereinafter.) It reads:

"If you believe and find from the evidence, that the defendant from any cause whatsoever, had become insane and irresponsible, in law, as explained in the foregoing instructions, and that he was so insane and irresponsible at the time of the killing, by reason of any mental disease or disorder arising from any cause whatsoever, then you will find the defendant not guilty, although you may believe that the defendant killed Manuel Noble while he was intoxicated or drunk.

"'Drunkenness' is a species of insanity and is attended with a temporary loss of reason and power of self-control; drunkenness, however, is voluntary, brought on by the act of the party, while insanity proper is an affliction of Providence, for which the party affected is not responsible.

"Such insanity is a full and complete defense to a criminal charge drunkenness is none; therefore, if you believe from the evidence that the defendant, James Evans, alias Jim Evans, voluntarily made himself intoxicated, and while so intoxicated, killed Manuel Noble in a fit of drunkenness or temporary insanity, which was the result of that intoxication, then he is responsible in law for such killing and...