State v. Holland

• Decision Date: 05 November 1945
• Docket Number: 39581
• Citation: 189 S.W.2d 989,354 Mo. 527
• Parties: State v. Edgar Holland, Appellant
• Court: Missouri Supreme Court

189 S.W.2d 989

354 Mo. 527

State v. Edgar Holland, Appellant

No. 39581

Supreme Court of Missouri

November 5, 1945

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed.

Fred F. Wesner for appellant; John L. Sullivan of counsel.

(1) The court erred in admitting the testimony of John Ryan, Recorder of Deeds of Pettis County, Missouri, with reference to State's Exhibit No. 1 and erred in admitting and allowing State's Exhibit No. 1 to remain in evidence for consideration of the jury. State v. Bass, 157 S.W 782; State v. Hughes, 125 S.W.2d 66; State v Joy, 285 S.W. 489. (2) The court erred in admitting in evidence for consideration of the jury the testimony of Bryan Howe, Circuit Clerk of Pettis County, Missouri, with regard to the filing of a divorce suit by Mattie Mollie Holland on September 15, 1943, which suit was dismissed November 17, 1943, by plaintiff, Mattie Mollie Holland, and the parties were reconciled and lived together thereafter. This evidence did not establish motive and was prejudicial. State v. Bass, 157 S.W. 782. (3) There was no evidence of estrangement between appellant and his wife in April, 1944. State v. Woods, 204 S.W. 21. (4) The court erred in failing and refusing to give and sustain appellant's requested Instructions A and B in the nature of a demurrer to the evidence because under the law the evidence wholly failed to prove venue in Pettis County, Missouri, and failed to establish and fix the jurisdiction of the Circuit Court of Pettis County, Missouri, to put appellant upon trial on the charge made against him in the information. 23 C.J.S., sec. 914, pp. 166, 169, 173, 174, 175; State v. Burns, 48 Mo. 438; State v. King, 111 Mo. 576; 16 C.J., sec. 1573. (5) The court erred in failing and refusing to give and sustain appellant's requested Instruction A in the nature of a demurrer to the evidence at the close of the State's case and erred in failing and refusing to give and sustain appellant's requested Instruction B in the nature of a demurrer to the evidence, when it was reoffered and requested at the close of the whole case. The evidence does not sustain the charge made in the Information against the appellant. State v. Bowman, 243 S.W. 110, 294 Mo. 245; State v. Singleton, 243 S.W. 147; State v. Francis, 98 S.W. 11, 199 Mo. 671; State v. Richardson, 36 S.W.2d 944. (6) The evidence wholly fails to establish any criminal agency on the part of appellant with the corpus delicti. State v. Bowman, 243 S.W. 110. (7) The evidence does not exclude every reasonable theory of innocence and establish the guilt of appellant beyond a reasonable doubt, to the exclusion of every reasonable hypothesis of innocence. Suspicion however strong cannot support a conviction. State v. Pritchett, 39 S.W.2d 794; State v. Tracy, 225 S.W. 1009; State v. Buckley, 274 S.W. 74; State v. McMurphy, 25 S.W.2d 79; State v. Archer, 6 S.W.2d 912; State v. Wolf, 87 S.W. 2d 436. (8) The court erred in failing to instruct the jury upon all the law of the case and particularly the court erred in failing to instruct the jury upon the law of murder in the second degree. There was no eyewitness to the act of killing and it was mandatory upon the court to instruct the jury on the law of murder in the second degree. Secs. 4070, 4378, R.S. 1939; State v. Kyles, 153 S.W. 1047, 247 Mo. 640; State v. Young, 199 Mo. 495; State v. Henke, 285 S.W. 392, 310 Mo. 495; State v. Minor, 193 Mo. 507; State v. Richmond, 12 S.W.2d 34. (9) Deliberation and premeditation are essential elements of murder in the first degree, unless committed in the manner otherwise specifically named in Sec. 4376, R.S. 1939. State v. Jackson, 130 S.W.2d 595, 344 Mo. 1055; State v. Conway, 171 S.W.2d 677, 351 Mo. 126. (10) The burden is on the State to prove deliberation and premeditation so as to make a killing murder in the first degree. State v. Talbott, 73 Mo. 347; State v. Lane, 64 Mo. 319; State v. Kyles, 153 S.W. 1047, 247 Mo. 640. (11) Deliberation and premeditation are never presumed. State v. Lane, 64 Mo. 319. (12) Presumption of second degree murder arises from intentional killing with deadly weapon, unless proof establishes other degree or excusable or justifiable killing. State v. Eason, 18 S.W.2d 71; State v. Hogan, 177 S.W.2d 465; State v. Miller, 143 S.W.2d 241. (13) Where there is no witness to a killing, murder in the second degree is presumed in the absence of evidence establishing other degree or justifiable killing. State v. Cade, 34 S.W.2d 82; State v. McCracken, 108 S.W.2d 372; State v. Snow, 238 S.W. 1069; State v. Wampler, 58 S.W.2d 266; 30 C.J., sec. 641, p. 396; 41 C.J.S., sec. 389, p. 202. (14) The court should instruct on all questions of law arising in the case which are necessary for the jury's information in rendering a verdict. State v. Stanton, 68 S.W.2d 811; State v. Hershon, 329 Mo. 469, 45 S.W.2d 60; 41 C.J., sec. 389, p. 201.

J. E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.

(1) The court did not err in admitting the testimony of John Ryan, Recorder of Deeds of Pettis County, Missouri, with reference to State's Exhibit No. 1, and in admitting and allowing State's Exhibit No. 1 to remain in evidence for consideration of the jury. State v. Davit, 343 Mo. 1151, 125 S.W.2d 47; State v. Lassieur, 242 S.W. 900; State v. Crone, 209 Mo. 316, 108 S.W. 555; State v. Baldwin, 317 Mo. 759, 297 S.W. 10. (2) The court did not err in admitting in evidence for consideration of the jury the testimony of Bryan Howe, Circuit Clerk of Pettis County, Missouri, with regard to the filing of a divorce suit by Mattie Mollie Holland against appellant. State v. Woods, 274 Mo. 610, 204 S.W. 21; 40 C.J.S., sec. 228, p. 1159; State v. Bass, 251 Mo. 107, 157 S.W. 782; See also cases cited by respondent under (1). (3) The court did not err in refusing to give Instructions A and B in the nature of a demurrer, because the State did prove venue. State v. Gow, 235 Mo. 307, 138 S.W. 648; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Burns, 48 Mo. 438; 16 C.J.S., sec. 1573; 23 C.J.S., sec. 914. (4) The court did not err in refusing to give Instruction A at close of State's case. Demurrer waived by presenting evidence on part of defendant. State v. Barr, 336 Mo. 300, 78 S.W.2d 104; State v. Lebo, 339 Mo. 960, 98 S.W.2d 695; State v. Kelly, 107 S.W.2d 19. (5) The court did not err in refusing to give defendant's Instruction B in the nature of a demurrer at the close of the whole case. The evidence was sufficient. State v. Dickson, 78 Mo. 438; State v. Harris, 324 Mo. 223, 22 S.W.2d 802; State v. Martin, 349 Mo. 639, 162 S.W.2d 847; State v. Taylor, 347 Mo. 607, 148 S.W.2d 802; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74. (6) Mutilation, destruction and concealment of body to avert suspicion. State v. Aitkens, 179 S.W.2d 84; 23 C.J.S., sec. 907, p. 146. (7) Facts and circumstances not controverted or explained by defendant. State v. Musick, 101 Mo. 260, 14 S.W. 212; State v. Good, 132 Mo. 114, 33 S.W. 790. (8) False statements of defendant as to the whereabouts of deceased. State v. Dickson, 78 Mo. 438; State v. Harris, 324 Mo. 223, 22 S.W.2d 802; State v. Brown, 168 Mo. 449, 68 S.W. 568. (9) Prior threats. State v. Grant, 79 Mo. 113; State v. Dickson, 78 Mo. 438. (10) Blood stains. 23 C.J.S., sec. 876, p. 92; State v. Dickson, 78 Mo. 438. (11) Defendant's failure to claim and bury body of deceased is circumstance for jury's consideration. State v. Myers, 198 Mo. 225, 94 S.W. 242; State v. Glasscock, 232 Mo. 278, 134 S.W. 549. (12) The court did not err in failing to give instruction on second degree murder. State v. Dickson, 78 Mo. 438; State v. Page, 130 S.W.2d 520; State v. Rasco, 239 Mo. 535, 114 S.W. 449; State v. Duestrow, 137 Mo. 44, 38 S.W. 554; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245.

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

OPINION

WESTHUES

Appellant, Edgar Holland, was convicted in the circuit court of Pettis county, Missouri, of murder in the first degree and sentenced to life imprisonment. An appeal was duly perfected.

The victim of the alleged murder was the wife of appellant. At the trial of the case, as on this appeal, the principal contention of appellant was, and is, that the evidence was insufficient to sustain a conviction. The evidence introduced was all circumstantial. Because of the points briefed a full statement of the evidence will be required. It disclosed the following facts: On Sunday, April 16, 1944, the body of a woman was found in the Lake of the Ozarks a short distance north and east of the Glaize bridge spanning the lake on highway 54 in Camden county, Missouri. The exact point where the body was found was at the foot of lake road 15, being the old roadway of highway 54 before Bagnell Dam was built causing the lake to form and resulting in the building of the Glaize bridge. The head and right leg of the body had been severed and were never found. The officers, that is the coroner and sheriff of Camden county, took the body to a funeral establishment in Camdenton. This body was later identified as that of Mrs. Fairfax, the mother-in-law of appellant. On Monday morning, April 17, another headless body of a woman was found a short distance down stream from the point where the first body was found. It was also taken to the funeral establishment at Camdenton. This body was later identified as that of Mrs. Holland appellant's wife. Both bodies were practically nude when found. The one found on Monday was clad with a pair of step-ins and hose on the right leg. A few articles of clothing were found at the water's edge. These will be referred to later. Both women had been shot with a shotgun. The first woman found had been shot twice and the second either two...