State v. Flinn

• Decision Date: 20 August 1936
• Docket Number: No. 34741.,34741.
• Citation: 96 S.W.2d 506
• Parties: STATE v. FLINN.
• Court: Missouri Supreme Court

96 S.W.2d 506

STATE v. FLINN.

No. 34741.

Supreme Court of Missouri, Division No. 2.

August 20, 1936.

Appeal from Circuit Court, Andrew County; R. B. Bridgeman, Judge.

Eldon Flinn was convicted of manslaughter, and he appeals.

Affirmed.

Cross & Cross, of Savannah, and R. H. Musser, of Plattsburg, for appellant.

Roy McKittrick, Atty. Gen., and Covell R. Hewitt, Asst. Atty. Gen., for the State.

ELLISON, Judge.

The appellant was convicted of manslaughter in the circuit court of Andrew county on change of venue from De Kalb county, and his punishment assessed by a jury at nine years' imprisonment in the penitentiary for the killing of his brother-in-law, Emmet Horsman. He has filed no brief. The assignments in his motion for new trial complain of the trial court's failure to sustain objections to remarks made by the prosecuting attorney in his opening statement to the jury; of the admission and exclusion of evidence; of the giving of a certain instruction; and that the verdict was the result of passion and prejudice, was a quotient verdict, and was induced by remarks made by the trial judge.

The appellant and his wife, Laura, were married early in 1932. At that time she and her two brothers William and Emmet Horsman owned an 80-acre farm in De Kalb county upon which she and William resided. After they married, the appellant moved in with them, but the family relations were not happy, and in the fall William withdrew to the home of his brother Emmet in the same neighborhood, though he continued to farm the land that year and kept a team there.

On the morning of December 27, 1932, William and Emmett Horsman went to the farm. There had been a dispute over the ownership of some hogs penned up in the barn, William and Emmett claiming them and the appellant and his wife contending they were hers. William Horsman was in the barn currying a team of horses. Laura Flinn came to the barn door, the upper half of which was open, to pour some slop to the hogs. Emmet Horsman engaged her in conversation about the hogs. He, too, was standing outside the barn in front of the door. According to the testimony of William Horsman and certain dying declarations made by the deceased, the appellant, who was in the hogpen inside the barn partly concealed by the closed lower and the swung-back upper halves of the door, reached around with a pistol and shot Emmet in the back, under the right shoulder. He then stepped out, reached over the closed lower half of the door, and shot Emmet Horsman again in the breast as he lay on his back on the ground, saying, "I will shoot your damned liver out." The shot in the back severed the spinal cord and caused complete paralysis of the body below the breast. The bullet in the breast ranged downward passing through the abdominal cavity and punctured the intestines eight times, finally lodging in the hipbone. Pneumonia developed which resulted fatally three weeks later.

The defense was self-defense. The appellant did not testify about the facts. His counsel asked him only one question — whether he believed his own or his wife's life was in danger when he shot Emmet Horsman. The wife testified that on that occasion the deceased cursed and abused her and was threatening to strike first the appellant and then her with a club when the appellant shot him the first time. She could not remember about the second shot. It was also proven that the deceased had made an assault upon the appellant with a wrench the previous spring; that he had made threats against the appellant and had said he was going to force him to leave Laura and go away; and that he (deceased) had been warned not to come to the farm where she and appellant were living. Other facts will be stated in the course of the opinion, as necessary.

I. The first assignment in the motion for new trial deals with five statements made by the prosecuting attorney in the course of his opening statement to the jury. With reference to these generally it should be said that the state's attorney may outline the facts as he expects to prove them if he acts in good faith, although they are not followed up by proof, either because the evidence is excluded, or omitted. 16 C.J. § 2226, p. 890. The trial court has a wide discretion in determining whether the prosecuting attorney is acting in good faith, and necessarily must rely upon his good faith as the statement proceeds. State v. Lindsey, 333 Mo. 139, 144, 62 S.W.(2d) 420, 422; State v. Beaghler (Mo.Sup.Div.2) 18 S.W.(2d) 423, 427.

(a) The first remark complained of is this: At the very beginning of his statement the prosecuting attorney pointed out the appellant to the jury, and of the widow of the deceased said, "That lady over there behind Mr. Robinson is the widow of this murdered man." Appellant's counsel objected, saying if his defense was good at law the killing would be justifiable homicide, not murder. The court overruled the objection. We cannot think the appellant was prejudiced by the statement. In State v. Nasello, 325 Mo. 442, 467, 30 S.W.(2d) 132, 142, the prosecuting attorney in his opening statement referred to the defendant as a "bandit." The crime charged was commission of a homicide in the perpetration of a bank robbery. It was held not reversible error, and we rule likewise here.

(b) The prosecutor further said in the opening statement that at the time of the homicide the deceased Emmet Horsman and his wife were living on a certain farm, "together with their seven little children." Objection was made that the statement was clearly an appeal to prejudice and passion. The prosecutor retorted, "That is the fact though." Counsel for appellant insisted that the statement with reference to the seven children was not pertinent, and asked that counsel for the state be admonished and the jury discharged. The court ruled, "You may leave that out. Leave out the reference to the children in this, Mr. Hewitt." To the jury the court said, "Don't regard the reference to the children, gentlemen. Proceed." We think this was sufficient.

(c) The prosecutor further said the evidence would show that William Horsman "contributed most of the support for all three of them," meaning himself, his sister Laura, and her husband, the appellant, while the three were living together. He further said the evidence would show the appellant did not make any effort — here he was interrupted by an objection from appellant's counsel that the statement "Can't be competent." The prosecutor answered that he wanted to show the facts leading up to the day of the shooting. Appellant's counsel replied, "I know, but that is not a fact." The court ruled, "Proceed, go ahead." Then the prosecutor repeated his former statement, more elaborately, and added that while the appellant was living on the farm, in which he had no interest, he "never contributed one single iota to the support of that family." The court then interrupted, "Mr. Prosecutor, I am going to rule that that will not be competent, and the jury will be instructed to disregard that statement." Nevertheless, when it came to the appellant's side of the case, the issue was gone into elaborately by his wife, who testified that she owned a third of the farm and its produce, including the hogs, and that the family table was furnished from the farm, she doing the housekeeping. We find no error in all this as against the appellant.

(d) The prosecutor further declared, "The evidence will develop, though, beyond a reasonable doubt that from the time this man Flinn, this defendant, came there to that farm, he commenced causing trouble." On objection by appellant's counsel "to that kind of a statement," the court ruled, "Bring yourself down to the charge. That is too broad — the statement is too broad." Thus it appears the objection was sustained — if it was error. As a matter of fact, in the introduction of evidence both sides went extensively into the question of the bad feeling between the Horsman brothers and the Flinns — and as to where the blame should rest.

(e) The final assignment under this head complains of this statement of the prosecuting attorney: "The evidence will develop this defendant had hid in the barn waiting for Emmet Horsman and Bill Horsman to come around there. He shot him in the back, then when he was on the ground, paralyzed and couldn't move he shot him there the second time, and their plea is going to be self-defense." Counsel for appellant objected that the statement was argument, but was overruled by the court. The statement was argumentative, but appellant's counsel already had indicated there would be no denial of the killing and that the defense would be justifiable homicide. There was no prejudicial error in the court's ruling which calls for a reversal of the case.

II. The motion for new trial next assigns error in the admission of the dying declarations of Emmet Horsman on the ground that the evidence failed to show he was conscious of impending death and had no hope of recovery when he made them; and because his attending physician believed he would recover and had so advised him; and because the physician considered him irrational and incapable of making a statement. There were several dying declarations. The first was made by the deceased to his brother William Horsman immediately after the shooting; the second followed shortly afterward, to two neighbors, Irvin Dalbey and Joe Kearns, while the deceased still lay upon the ground where he fell after the shooting. The third was made later on the same day at a hospital in St. Joseph, to Messrs. Melvin Swepston and Ira J. Swope, St. Joseph police detectives, and Verne Campbell, sheriff of De Kalb county. All these, it will be remembered, were on December 27, 1932. On December 28 he made a statement to Robert P. Daniels, Sheriff Campbell, and Prosecutor Hewitt; another to Mr. Daniels and Oscar Warden on December 30, and still another to Mr. Daniels on January 15, 1933, two days before...