State v. Hayes

• Decision Date: 06 August 1929
• Docket Number: 29507
• Citation: 19 S.W.2d 883,323 Mo. 578
• Parties: The State v. Louis Hayes, Appellant
• Court: Missouri Supreme Court

19 S.W.2d 883

323 Mo. 578

The State v. Louis Hayes, Appellant

No. 29507

Supreme Court of Missouri

August 6, 1929

Appeal from Ripley Circuit Court; Hon. E. P. Dorris, Judge.

Reversed and remanded.

Cope & Tedrick and D. B. Deem for appellant.

(1) The court erred in failing to rebuke Abington, attorney for the State, when, at the time Saltzman was offered as a character witness for the defendant, he remarked, "if you will call Cal Coolidge, Sam Baker, Fall and Doheny, then you will have all the politicians," said remark being highly prejudicial in view of the fact that Fall and Doheny were very much in disrepute at that time. (2) During the argument of the prosecuting attorney, he referred to "the six orphan children of the deceased;" to a woman who sat near him as "the wife of the deceased;" and when speaking of the testimony of Joe Hurt, one of the defendant's witnesses, said, "When Joe Hurt said he didn't tell him that he had quit bootlegging, he swore a lie." Mr. Abington, in his argument, related part of a conversation he had with Melvina Minton, one of the State's witnesses, wherein she said, "Mr. Abington I am Louis's wife's aunt, but I am going to tell the truth." All of the above remarks were outside the record, were prejudicial to the defendant, and the court erred in failing to rebuke the attorneys for making these statements. State v. Eudaly, 188 S.W. 110; State v. Isaacs, 187 S.W. 21; State v. Dozier, 177 S.W. 359; State v. Clapper, 203 Mo. 549; State v. Wigger, 196 Mo. 90; State v. Lockhart, 188 Mo. 427; State v. Ferguson, 152 Mo. 92; State v Lingle, 128 Mo. 528; State v. Woolard, 111 Mo 248; State v. Upton, 130 Mo.App. 316. (3) During the deliberations of the jury, two of the jurors left the jury room unaccompanied by any officer, and went downstairs into the toilet in the basement of the court house, and were gone several minutes. Later the deputy sheriff in charge of the jury permitted them all to leave the jury room and come into the court room to continue their deliberations, and the deputy sheriff remained with them during their deliberations and was present while they were voting on a verdict. This irregular conduct on the part of the jury and the officer in charge of it constitutes a reversible error. Secs. 4078, 4026, R. S. 1919; State v. Murray, 91 Mo. 95; State v. Witten, 100 Mo. 525; State v. Howland, 119 Mo. 419; State v. Steifel, 106 Mo. 129.

Stratton Shartel, Attorney-General, and A. M. Meyer, Assistant Attorney-General, for respondent.

(1) The first assignment in appellant's brief regarding a remark of counsel for the State is unsupported by any citation of authority, and to ask a reversal therefor is an unwarranted reflection upon the intelligence of the jury and of the learned trial court who should not be convicted of error for the rather pointless attempts at humor of counsel for the State. (2) Under his next assignment, appellant lists four alleged remarks of counsel for the State to the jury: (a) One concerning the "six orphan children of the deceased," the contention being that there was no evidence that deceased had any children. The remarks complained of are not preserved in the bill of exceptions and are therefore not for review. State v. McCorkendale, 300 S.W. 819; State v. Witham, 281 S.W. 35; State v. Strait, 279 S.W. 109; State v. Burlison, 285 S.W. 717. (b) The court said: "The objection will be sustained. Confine your argument strictly to the testimony in the case." This was a sufficient rebuke, especially in view of the fact that there was no request for further rebuke. There was no adverse ruling to which defendant could except. State v. Townsend, 289 S.W. 570; State v. Frost, 289 S.W. 898; State v. Baker, 175 S.W. 68; State v. McKinney, 254 Mo. 703. (c) The same observations and the same authorities apply equally to each of the other remarks complained of. The objections were sustained and the rebukes administered, the defendant's attorneys seeking to inject error by excepting to the refusal of the court to further reprimand when no further reprimand was requested. (3) It is admitted that during the deliberations two members of the jury went to the basement of the court house to answer the call of nature, and were gone only for the necessary time. This was not such misconduct as to constitute reversible error. Neither was the conduct of the deputy sheriff such as to warrant a reversal. It affirmatively appears that he did not discuss the case nor take part in the deliberations, and it affirmatively appears that the jurors who went to the basement did not see anyone else nor discuss the case. State v. Prince, 285 Mo. 328; State v. Shipley, 171 Mo. 544; State v. Spaugh, 200 Mo. 571; State v. Knight, 278 S.W. 1038.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

In an indictment filed in the Circuit Court of Butler County, defendant was charged with murder in the first degree for the killing of one Lester Mathis. A trial in Butler County resulted in a hung jury. A change of venue was then awarded to Ripley County, and a second trial also resulted in a hung jury. A third trial was had and the jury returned a verdict finding defendant guilty of murder in the second degree, and assessing his punishment at ten years' imprisonment in the penitentiary. From the judgment entered on the verdict, defendant appealed.

Defendant testified and admitted that he shot Lester Mathis, the deceased, with Mathis's automatic pistol, and killed him. The only witness for the State present at the occurrence was one Tom Goodman. He testified, in substance, that he roomed and boarded at defendant's home in Butler County. He said he worked for deceased and defendant both. On Friday, August 14, 1925, deceased and Goodman drove to defendant's home in deceased's Ford car, arriving there between two and three in the afternoon. Deceased sat on the porch, while Goodman entered the front door and went to his room for a change of clothing. Upon making the change, he left the house by way of the back door to the place where defendant was cutting wood, south of the house, close to the southeast corner, and which was about thirty feet from the front porch. From the porch to the front gate where the car was parked was about twenty-five steps. Goodman and defendant discussed Goodman's wages, amicably it seems, and defendant asked Goodman what deceased was going to do. Goodman then started for the car. As Goodman went by deceased, deceased asked him where his gun was, and he replied, "Hell, I don't know. I guess Louis [defendant] has it." Goodman went to the car and deceased turned to his left. As Goodman set his foot on the running board, he heard a pistol fire, and looked around and saw deceased stooped over, coming toward him, and defendant following with a pistol, and he then saw the smoke of a second shot. The second shot immediately followed the first. Goodman said he did not think he could have heard a common conversation, and he did not hear deceased say anything except what deceased said to him. After the second shot, deceased eased up to the steps of the porch, drew one breath after Goodman reached him, and died. Goodman did not see anyone present at the time of the killing except defendant and deceased.

The evidence for the State further develops that no weapon was found on deceased, not even a pocket knife. Two wounds appeared on the body of deceased, one entering about the seventh rib on the left side, ranging across and upward through the body and coming out about the fourth rib on the right side, a little under the armpit. The other wound entered about eight inches below the nape of the neck and about the middle of the spinal column, ranging upward and coming out about the second rib on the right-hand side. One shot passed through both lungs. Either of said wounds were sufficient to produce instant death.

The testimony for defendant tends to show that deceased was met by a witness on Monday before the Friday he was killed. He asked witness if he had a gun, and said that he had got mixed up with Louis Hayes's wife, and Louis was going to kill him. On cross-examination, said witness was asked if he was not in the bootlegging business, and he denied it. He was also asked if he did not tell the prosecuting attorney in his office that he was going to quit bootlegging, and he replied, "No."

The wife of defendant testified that, on Monday before the killing, deceased came in and asked where defendant was, and upon being told that he was out in the barn, deceased took hold of her and pulled her over toward him. Defendant saw him, spoke to him about it, and deceased apologized, saying that he would never be guilty of such conduct again, and left. Again on Wednesday, deceased came to the house. Defendant and his father were present, and his father left in the car with deceased to go to Poplar Bluff. During the day on Thursday, deceased again came to the house. Defendant was in the barn lot. Deceased asked where defendant was, and, upon being told, deceased grabbed witness and told her he was going to make her come across. He repeated that he was going to do so, and said that, if defendant said anything, he would get him. Defendant then appeared and witness told him what deceased had done. Defendant ordered deceased to leave and to stay away, but he replied that he would come back when he got ready, and that when he came again, it would be defendant's time to go. Deceased left. That same evening deceased returned while defendant was in Poplar Bluff. He found witness in the bedroom, and told her she would have to come across. He grabbed her and threw her across the bed, laying his gun down beside him. Upon announcing that she heard someone coming, deceased jumped up to shut the door, and...