State v. Hepperman

• Decision Date: 17 June 1942
• Docket Number: 37944
• Citation: 162 S.W.2d 878,349 Mo. 681
• Parties: The State v. Emma Hepperman, Appellant
• Court: Missouri Supreme Court

162 S.W.2d 878

349 Mo. 681

The State v. Emma Hepperman, Appellant

No. 37944

Supreme Court of Missouri

June 17, 1942

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Affirmed.

Roy McKittrick, Attorney General, and Olliver W Nolen, Assistant Attorney General, for respondent.

(1) The information charges murder in the first degree and is in proper form. Sec. 4376, R. S. 1939; State v. Wagner, 78 Mo. 644; State v. Hyde, 234 Mo. 200; State v Nesenhener, 164 Mo. 461; Commonwealth v. Stafford, 12 Cushing, 619; State v. Taylor, 190 S.W. 330; State v. Steen, 115 Mo. 474. (2) The verdict is in proper form. Sec. 4378, R. S. 1939; State v. Cropper, 327 Mo. 193, 36 S.W.2d 923; State v. Goodwin, 333 Mo. 168, 61 S.W.2d 960. (3) Points 4, 6, 17, 33, 34, 35, 36, 37 and 39, are too indefinite and have been declared by this court not subject to review. Sec. 4125, R. S. 1939; State v. Zoller, 1 S.W.2d 137; State v. Adams, 318 Mo. 712, 300 S.W. 738; State v. Kenyon, 126 S.W.2d 245; State v. Wright, 112 S.W.2d 571. (4) The demurrers were properly overruled. The record shows the venue was proved. State v. Smith, 222 S.W. 455; State v. Hyde, 234 Mo. 200; State v. David, 131 Mo. 380; State v. Everhardt, 316 Mo. 195; Kelly's Criminal Law, Sec. 472, p. 420; State v. Lease, 124 S.W.2d 1084. (5) Instructions 1, 4, and 7, properly declared the law of the case. The court did not err in refusing to give instructions K, I, G and F, offered by appellant. State v. David, 131 Mo. 380; State v. Hyde, 234 Mo. 200; State v. Taylor, 190 S.W. 330; State v. Rasco, 239 Mo. 535. (6) It was not an error to overrule the motion to suppress certain evidence, found in the home as alleged in the motion. State v. Rebasti, 267 S.W. 858; State v. Raines, 98 S.W.2d 580, 339 Mo. 884; State v. Askew, 56 S.W.2d 52, 331 Mo. 684; State v. Steeley, 33 S.W.2d 938. (7) Appellant's pleas in bar and abatement are wholly without merit and mere reference to it in the motion for a new trial will not suffice. Secs. 3893-3894, R. S. 1939; State v. Flannery, 263 Mo. 579; State v. Wear, 145 Mo. 162. (8) The court did not err in overruling appellant's motion for a continuance. The affidavit did not show due diligence. Sec. 4043, R. S. 1939; State v. Gadwood, 116 S.W.2d 42, 342 Mo. 466; State v. Walker, 110 S.W.2d 780; State v. Lonon, 56 S.W.2d 378, 331 Mo. 591; State v. Reynolds, 131 S.W.2d 552, 345 Mo. 79. (9) The testimony of Rosie Simpson relating to beer kept in the basement was proper because it was a part of the res gestae and was a circumstance in the case. Likewise, appellant's statements to Steve Hepperman and members of the State Highway Patrol, concerning faked robberies were properly admitted. State v. Thompson, 132 Mo. 301. (10) The specimens taken from deceased and examined by Sergeant Koch were properly traced and connected by the State. State v. Thompson, 132 Mo. 301; State v. Smith, 222 S.W. 455. (11) On motion of appellant the testimony relating to "Daisy Fly Tin" and the testimony of Clarence and Urban Schneider was stricken out by the court and the jury instructed to disregard the same. State v. Grant, 98 S.W.2d 761. (12) It was proper for the State to show that Ethel Hepperman was also poisoned and was ill at the same time as her father. State v. Hyde, 234 Mo. 200; State v. Thompson, 141 Mo. 408; State v. Ward, 337 Mo. 421, 85 S.W.2d 1. (13) The testimony relating to the appellant's request that Ethel Hepperman trace her signature for the purpose of signing a bond was a circumstance and part of the res gestae. It showed possible motive. State v. Shawley, 67 S.W.2d 74, 334 Mo. 352. (14) The hypothetical questions propounded to the physicians contained all of the necessary elements, and it was proper for them to give as their opinion that deceased died of arsenical poisoning. The physicians showed proper qualifications. State v. Everhart, 316 Mo. 195; State v. Hancock, 104 S.W.2d 241; State v. Douglas, 312 Mo. 373. (15) The evidence showed that deceased had written the letter and appellant had come to the home in response to the same and had brought the letter with her. It was not an error under Point 32 to admit the letter as it showed motive and was a part of the res gestae. State v. Shawley, 67 S.W.2d 74, 334 Mo. 352. (16) It is not necessary to prove motive in a first degree murder charge, but motive was proved in the instant case. State v. David, 131 Mo. 380; State v. Hyde, 234 Mo. 200. (17) The arguments of State's counsel were legitimate, and were conclusions based on the evidence. There were no motions made to discharge the jury by appellant's counsel. State v. Lynn, 23 S.W.2d 139; State v. Nichols, 39 S.W.2d 777. (18) The statement by deceased to the effect that he had been poisoned by appellant, was competent as a part of the res gestae. State v. Thompson, 132 Mo. 301. (19) The affidavits and allegations as to the jury reading newspapers and hearing radio broadcasts are not properly preserved for review in the motion for a new trial. State v. Ferguson, 133 S.W.2d 1023; State v. McGee, 83 S.W.2d 98, 336 Mo. 1082.

Leo A. Politte, L. J. McKim and H. K. Pellett for appellant.

(1) The evidence was insufficient to sustain the verdict. This is a substantial evidence case. State v. Dilley, 76 S.W.2d 1085; State v. Carpenter, 154 S.W.2d 81; State v. Tracy, 225 S.W. 1009; State v Richardson, 36 S.W.2d 944; State v. Pritchet, 39 S.W.2d 794; State v. Hyde, 136 S.W. 316. (2) Instruction 1 was erroneous because it authorized the jury to find the defendant guilty upon facts and circumstances instead of solely upon facts; it authorized conviction without finding the kind and nature of poison or how, where and when administered; without showing felonious intent. State v. Taylor, 133 S.W.2d 336; State v. Smith, 222 S.W. 455. (3) The court erred in giving to the jury Instruction 4 because it authorizes a conviction. "If you find from the facts and circumstances in the evidence that there is no other reasonable conclusion from them, then she is guilty, you will so find," and does not require the jury to find that the evidence is consistent with her guilt and absolutely inconsistent with every other reasonable hypothesis. State v. Conway, 154 S.W.2d 128; State v. Carpenter, 154 S.W.2d 81; State v. Allison, 51 S.W.2d 51, 85 A. L. R. 471; State v. Letz, 242 S.W. 681; State v. Moxley, 14 S.W. 969. (4) Instruction 4 is erroneous because it directs the jury to consider the probability of a witness' statement but fails to instruct the jury that it may also consider the improbability of a witness' statement or testimony. (5) The court failed to instruct the jury on all of the law in the case and erred in refusing Instruction K offered by defendant. State v. Salmon, 115 S.W. 1106, 216 Mo. 466; State v. Starr, 148 S.W. 862; State v. Majors, 237 S.W. 486; State v. Cantrell, 234 S.W. 800. (6) The court erred in refusing to give Instruction G offered by defendant, withdrawing from the jury's consideration evidence of threats made by defendant against Steve Hepperman, brother of deceased, because said remarks were directed against a party not charged to have been injured by defendant and having no connection with this case and is inflammatory and prejudicial. State v. Wolff, 87 S.W.2d 436; State v. Crabtree, 20 S.W. 7. (7) The court erred in refusing to give Instruction F offered by defendant, withdrawing from the jury's consideration evidence concerning London purple, because there is no evidence in this case that would justify the conclusion that deceased was poisoned with London purple, but there is much evidence to show that he could not have been poisoned by London purple. State v. Hyde, 136 S.W. 316. (8) The court failed to instruct on all of the law in the case and more particularly on the question of suicide. (9) The court erred in overruling defendant's motion to suppress evidence before the trial was commenced, and failing and refusing to conduct an inquiry into the merits of said motion to suppress evidence before ruling on the same. State v. Custer, 80 S.W.2d 176; State v. Hyde, 136 S.W. 316; State v. McAnnally, 259 S.W. 1042; State v. Jackson, 83 S.W.2d 87. (10) The court erred in admitting evidence State's Exhibits C and D and testimony in relation thereto because said exhibits were obtained from the home of defendant after her arrest, during her absence from said home, and without her consent. State v. Wright, 77 S.W.2d 459; State v. Watson, 44 S.W.2d 132; State v. McAnnally, 259 S.W. 1042. (11) The court erred in admitting testimony of witnesses Hagen, Barr and Steve Hepperman as to robberies occurring or suspected at the Anthony Hepperman home and complaints and statements purporting to have been made by deceased and defendant to the effect that she had been robbed and that the robberies were matters of her own invention. Such testimony was irrelevant and prejudicial, and did not tend to prove or disprove any of the issues in this case. State v. Buxton, 22 S.W.2d 635; State v. Lebo, 98 S.W.2d 695; State v. Hyde, 136 S.W. 316; State v. Austin, 234 S.W. 802; State v. Smith, 222 S.W. 455. (12) The court erred in admitting testimony concerning Daisy Fly Tin because, even though it was withdrawn, the prejudice remained. State v. Martin, 129 S.W. 887. (13) The court erred in admitting the testimony of witness Clarence Schneider and Urban Schneider, over the objection and exception of the defendant, made at the time the witnesses and their testimony was offered, and even though the court later by instruction withdrew their testimony the prejudice was nevertheless created against the defendant, and the action of the court in failing to keep such testimony from the jury was improper and prejudicial. State v. Hyde, 136 S.W. 316; State v. McAnnally, 259 S.W. 1042. (14) The court erred...