State v. Evans

• Decision Date: 12 February 1951
• Docket Number: No. 1,No. 42074,42074,1
• Citation: 237 S.W.2d 149
• Parties: STATE v. EVANS
• Court: Missouri Supreme Court

Page 149

237 S.W.2d 149

STATE v. EVANS.

No. 42074.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1951.

Rehearing Denied March 12, 1951.

Lincoln, Lincoln, Haseltine & Forehand, Harold T. Lincoln, Horace S. Haseltine, and Douglas W. Greene, all of Springfield, for appellant.

J. E. Taylor, Atty. Gen., Will F. Berry, Jr., Asst. Atty. Gen., for respondent.

CONKLING, Presiding Judge.

In the circuit court of Webster County the defendant-appellant was found guilty of assault with intent to kill one Carmen Rainey on purpose with malice aforethought. From the ensuing judgment of imprisonment in the penitentiary for a term of four years she has appealed.

From the record before us it appears that defendant lived in Springfield, Missouri; that on the night of October 19, 1949, she drove to Marshfield, Missouri, entered the Rainey Funeral Home (where Mrs. Rainey was sleeping) and there made an assault upon Mrs. Carmen Rainey with a flash light and a toy pistol. Carmen Rainey was severely beaten.

Defendant testified that since 1944 she had been 'keeping company' with Rex Rainey, the husband of Carmen Rainey; that Mrs. Rainey found out that defendant was 'dating' Mr. Rainey; that Rex Rainey and others had communicated to defendant certain threats made against defendant by Carmen Rainey; and that before the occasion in question Rex Rainey suggested to defendant that she go into the Rainey home in Marshfield during his absence and there secure a certain revolver with which Rex Rainey said his wife intended to kill defendant. That trip resulted in the instant assault.

Preparatory to making that trip to Marshfield defendant (at Rex Rainey's suggestion) secured some chloroform, phenobarbital tablets, a stomach pump, and placed red pepper in her shoes. Rex Rainey told defendant where in the house his wife would be sleeping and where the revolver could be found. Those above listed articles and some cotton, an empty cocacola bottle, a plastic table cloth and a jar of vaseline were carried to Marshfield by defendant in the car in a small zipper bag. Defendant testified that when she entered the Rainey home that night she took into the house only 'some chloroform and a toy revolver and some cotton' and the clothing she wore. She wore a pair of blue jeans (instead of a skirt) and had on a pair of rubber gloves. After defendant was in the house she poured some chloroform on the cotton.

Defendant testified that Carmen Rainey awoke before defendant could find the revolver. The two scuffled and the assault ensued. They were scuffling and fighting on the floor. Mrs. Rainey bit defendant's fingers. Defendant beat Mrs. Rainey on the head with the toy pistol and a flashlight. Blood flowed from each. Each sustained rather serious injuries. After Mrs. Rainey escaped defendant returned in the car to Springfield. Defendant testified as to what occurred in the house, as did Carmen Rainey.

About five o'clock the following morning defendant drove to the home of Joyce Schroeder in Springfield where she left the small zipper bag and its above noted contents and changed into some clothing of Miss Schroeder's. Defendant gave the zipper bag and her clothing to Miss Schroeder and asked her 'to put them away until she (defendant) came and got them, or told me what to do with them, or something.' The zipper bag, its contents, the clothing (including the jeans, claimed to have some blood spots thereon) were later turned over by Miss Schroeder to the police, and were introduced in evidence by the state in its case in chief.

Defendant first contends that the trial court committed reversible error in admitting into evidence the empty coca-cola bottle, some phenobarbital tablets, the stomach pump, the plastic table cloth, and the jar of vaseline. Those and other articles were in the zipper bag. This contention is founded upon defendant's argument from the record that while it is not denied that defendant took those items to Marshfield in the small zipper bag, there is no proof at all that those items were ever taken into the Rainey home.

About the detailed preparations made for the trip to Marshfield and her collecting 'this bizarre collection of items' defendant testified at great length. She testified, in part:

'Q. What did you do then, in preparation to go out and get the gun? A. Well, he (Rex Rainey) suggested how I go about getting it.

'Q. Well, did you follow those suggestions? A. Yes, I followed them right to the minute.

'Q. What did he suggest? A. He suggested I get some chloroform, and he also suggested some sleeping tablets.

'Q. Now, who produced those sleeping tablets? A. He did.

'Q. What else did he suggest? A. Well, he told me how to use them.' Rex Rainey also suggested defendant take a stomach pump and that she have red pepper in her hose. He told her where and how his wife would be sleeping, 'he (Rex) gave me a specific picture of the house so that I would know'. She secured cotton, a toy revolver, and rubber gloves. Under an assumed name defendant rented a car in Springfield to make the trip to Marshfield.

Defendant further testified: That Rex Rainey had given her the phenobarbital tablets, red pepper and cotton, and had told her to dissolve the tablets in the chloroform 'Q. Did he tell you how to use it? A. He said to use the stomach pump. * * *

'Q. Well, how, though? A. Well, I guess if you had a tube you could put it down some one's throat, I don't know.

'Q. Did he tell you to do that? A. Yes, sir.

'Q. Did he tell you to run (the rubber tube of) a stomach pump down her throat? A. Well, I think he did, yes.

'Q. Are you sure whether he did or not? A. Why, I am sure he did.

'Q. Did he tell you how many phenobarbital tablets to use? A. Well, he said to use about a dozen * * *

'Q. Now did Mr. Rainey talk to you about getting some vaseline? A. Yes, he told me to.

'Q. And did you get some vaseline? A. Yes, sir.

'Q. What was it to be used for? A. He told me to put it on the tube. * * *

'Q. You say you poured the chloroform on the cotton before you went into the room? A. Yes, sir. * * *

'Q. You testified that you intended to give it (chloroform) to her if she work up, I believe, is that right? A. Yes, to weaken her defense on me.'

The State may show in evidence the preparations made by an accused for the commission of a crime. State v. Miller, 357 Mo. 353, 208 S.W.2d 194. Articles showing motive, or malice, or intent, or knowledge or preparation, may be received in evidence if shown to be connected with the crime or with the accused. 22 C.J.S., Criminal Law, Sec. 709, page 1204, and cases there cited. Generally, demonstrative evidence such as articles which tend to establish the crime charged, or connect the accused with the offense, or explain the intention of accused, or give the jury a more accurate impression of the facts or throw any relevant light upon any material matter are admissible in evidence. State v. Shawley, 334 Mo. 352, 67 S.W.2d 74; 22 C.J.S., Criminal Law, Sec. 708, page 1202. Articles which serve to unfold or explain a crime are admissible in evidence if properly identified as having been had by the accused for that purpose. 22 C.J.S., Criminal Law Sec. 709, page 1203.

The record does not clearly show why the empty coca-cola bottle and the plastic table cloth were offered and admitted in evidence. But if it was error (which we do not rule) to admit those two articles into evidence, the admission of them clearly was not reversible error. There was nothing either lethal or inflammatory or prejudicial about them and their admission could not have been prejudicial to defendant.

Under the peculiar facts appearing in the record before us the collection, possession and taking to Marshfield of these widely varied and strikingly unusual articles to accomplish no more than the larceny of a revolver presents a situation the jury could have (and perhaps did) consider as fanciful. From all the circumstances the jury could well have found that the purpose of this nocturnal entry into the Rainey home by this defendant was something other than larceny. The elaborate preparations for this entry into Carmen Rainey's bedroom plainly revealed to the jury the extent of the scheme and plan the defendant had evolved to carry out some unlawful purpose upon her entry into the Rainey home. The jury had a right to believe that, ordinarily, a person intent upon only the larceny of a revolver does not accomplish that result with chloroform, sleeping tablets and a stomach pump. The jury had the further right to find and believe that those articles were indicative of intended violence upon a human being. We rule that under the instant circumstances the articles in question were admissible as showing both malice and intent. They were clearly connected with accused, connected the accused with the offense, tended to shed light upon her intention in going to the scene of the assault and served to explain and unfold her design and purpose. We have carefully examined State v. Smith, 357 Mo. 467, 209 S.W.2d 138, and State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, cited by defendant. They do not rule this case and the facts of those cases clearly distinguish them. The trial court did not err in admitting the exhibits in evidence.

It is next contended by defendant that the admission in evidence of the 'blue jeans', T shirt and sox which defendant had worn at Marshfield on October 19, 1949 was reversible error. With this contention we do not agree.

We have carefully read the transcript. No undue emphasis was placed on the offer or reception in evidence of these exhibits. Defendant's clothing was not...