State v. Hughes

• Decision Date: 21 February 1939
• Docket Number: 35909
• Citation: 125 S.W.2d 66,344 Mo. 116
• Parties: The State v. Walter Hughes, Appellant
• Court: Missouri Supreme Court

125 S.W.2d 66

344 Mo. 116

The State v. Walter Hughes, Appellant

No. 35909

Supreme Court of Missouri

February 21, 1939

Appeal from St. Clair Circuit Court; Hon. C. A. Calvird Judge.

Reversed and remanded.

Ralph P. Johnson, Herman Pufahl, Ben L. Clardy and Edgar J. Keating for appellant.

(1) The trial court erred in admitting in evidence the written statement taken by the prosecuting attorney and signed by the deceased for the reason that there was no sufficient foundation laid for the introduction of the statement as a dying declaration by showing that the deceased made the statement in anticipation of impending dissolution and at a time when he had abandoned all hope of recovery. State v Flinn, 96 S.W.2d 506; State v. Richardson, 102 S.W.2d 653; State v. Kelleher, 225 Mo. 145; State v. Simmon, 50 Mo. 370. (2) The trial court erred in permitting the witness, Mrs. Maggie Harris, to testify over the objection of the defendant, to a statement made to her by the deceased while he was in the hospital at Humansville for the reason that there was no foundation for the admission of this statement as a dying declaration because the deceased was not shown to have abandoned all hope of recovery, and to have made the statement in anticipation of impending death. State v. Flinn, 96 S.W.2d 506; State v. Richardson, 102 S.W.2d 653; State v Simon, 50 Mo. 370. (3) The trial court erred in permitting the witness, Frank Sifers, to testify over the objection of the defendant to the statement of the deceased, which statement the State claimed was a dying declaration of the deceased for the reason that there was no foundation laid for the admission of this statement as a dying declaration by the showing that the deceased had abandoned all hope of recovery and had made the statement in anticipation of impending dissolution. Cases under point 1. (4) The trial court erred in permitting the witness, Cleve Wilson, to testify over the objection of the defendant to a conversation with the deceased on the night of the homicide in which the deceased stated that the appellant was the man who stabbed him. (5) The trial court erred in permitting the witness, Cleve Wilson, to testify over the objection of the defendant to a statement of the deceased made at the hospital at Humansville for the reason that there was no foundation laid for the admission of this statement as a dying declaration by the showing that the deceased had at the time abandoned all hope of recovery and was in anticipation of impending dissolution. See point 2. (6) The trial court erred in admitting in evidence over the objection of the defendant the decree of divorce in the case of Alvah Harris v. Lois Harris. (a) There was no ground for the admission of evidence of motive under the facts of this case. State v. Wheaton, 221 S.W. 26; State v. Concelia, 250 Mo. 411; State v. Bass, 251 Mo. 107. (b) The decree was irrelevant, was too remote to have any bearing on the issues of this case, concerned matters to which the appellant was not a party and was incompetent for any purpose. Frazier v. Commonwealth, 307 S.W. 13; Curtiss v. State, 110 S.E. 907; Powdrill v. State, 138 S.W. 114; State v. Kuehner, 93 Mo. 193. (7) The trial court erred in admitting in evidence over the objection of the defendant the motion to modify the decree of divorce of Alvah Harris from Lois Harris. (a) There was no ground for the admission of evidence of motive under the facts of this case. State v. Wheaton, 211 S.W. 26; State v. Concelia, 250 Mo. 411; State v. Bass, 251 Mo. 107. (b) The motion to modify was hearsay, was not made under oath, concerned facts to which the appellant was not a party and was incompetent for any purpose. Frazier v. Commonwealth, 207 S.W. 13; Curtiss v. State, 110 S.E. 907; Powdrill v. State, 138 S.W. 114; State v. Kuehner, 93 Mo. 193.

Roy McKittrick, Attorney General, and Arthur M. O'Keefe, Assistant Attorney General, for respondent.

(1) The court did not err in admitting the dying declarations of the deceased. Shepard v. United States, 78 L.Ed. 196, 290 U.S. 96; Wharton on Homicide (3 Ed.), p. 1003; State v. Simon, 50 Mo. 370; 1 Wharton's Criminal Evidence (11 Ed.), p. 859, sec. 533; State v. Gow, 235 Mo. 307, 138 S.W. 648; 2 Michie on Homicide, p. 1061, sec. 205; Wharton on Homicide, p. 1004, sec. 636; 1 Wharton's Criminal Evidence, p. 852, sec. 530; State v. Crone, 209 Mo. 316, 108 S.W. 555; State v. Zorn, 202 Mo. 12, 100 S.W. 591; State v. Bibbs, 186 S.W. 986; State v. Thomas, 180 S.W. 869; State v. Flinn, 96 S.W.2d 506; State v. Evans, 124 Mo. 397, 28 S.W. 8; State v. Garth, 164 Mo. 553; 65 S.W. 275; 104 A. L. R. 1319. (2) The admission of the divorce decree in the case, Alvah Harris v. Lois Harris, and the admission of the motion to modify the decree was not error. 30 C. J., p. 184, sec. 408; Binns v. State, 57 Ind. 46; Vaughn v. State, 144 So. 458; People v. Holloway, 28 Cal.App. 214, 151 P. 975; People v. McNeer, 57 P.2d 1018; Powdrill v. State, 138 S.W. 116. (3) Assignments not found in the motion for new trial present nothing for review. State v. Rodgers, 102 S.W.2d 566; State v. Whitener, 46 S.W.2d 579, 329 Mo. 838. (4) Cross-examination of the defendant's wife was proper. Sec. 3692, R. S. 1929; State v. Revard, 106 S.W.2d 906; State v. Hawley, 51 S.W.2d 77.

OPINION

Leedy, J.

Appellant was charged with murder in the first degree, in having stabbed and killed one Alvah J. Harris at the county of St. Clair. Tried in the circuit court of that county, he was found guilty of manslaughter and sentenced to a term of five years in the penitentiary, and he has appealed.

The sufficiency of the evidence to support the verdict has not been raised; nor, indeed, could a challenge thereof be sustained, if made. It is therefore unnecessary to set forth the evidence in any detail. The deceased, Alvah J. Harris, was about twenty-seven years of age at the time of his death. He had been married to Lois, the daughter of appellant, Walter Hughes. Their marriage had terminated in divorce, the decree going to the husband, and the custody of an infant son was divided equally between the parties, in alternating periods of two weeks each. Lois had remarried, but at the time in question was living at the home of her parents in the town of Collins. Harris, the deceased, lived across the street. It was his custom, during the periods when the child was in the care of its mother, to take a quart of milk daily to the home of appellant for the use of the child. It was in connection with such a delivery, at about 6 P. M., on January 19, 1937, which proved to be the final one, that the altercation in question arose, and out of which this prosecution grew.

The evidence on the part of the State tended to show that when Harris opened the door of the Hughes home, appellant ordered him out, and directed that he stay out, and ran at him with a knife; that Harris ran to the street, and was pursued by appellant who stabbed him several times with a knife. There were four cuts on his left side along the mid-line, about four inches under the arm, and a long, lacerated, jagged wound on deceased's head. The largest of the cuts was about an inch and a quarter to an inch and a half in length. The other three stab wounds were smaller. Although it was shown that immediately after the encounter Harris was in a condition of severe shock, and was bleeding profusely, the hemorrhages were external only, and none of the cuts penetrated the pleural cavity, and their nature was not such as to necessarily prove fatal. However, an infection set up and Harris died on January 23, four days later, as a result of said wounds.

On the part of appellant, it was shown that he was a man sixty-three years of age and in somewhat delicate health; that there had been unpleasantness between himself and deceased growing out of the marital difficulties mentioned; that he had previously ordered deceased out of the house on several occasions; that on the night in question, when Harris came to the door, after telling the latter to take the milk and go home, and informing him that if the baby needed any medical aid or milk, he would see that he got it, deceased applied a vile epithet to appellant, and invited him to go outside, saying, "I am going to knock your brains out;" that appellant believing he had to fight, either in the house or outside, followed deceased outdoors; mean-while the latter was cursing him. A lively altercation ensued out in the street in which appellant admitted that he got out his knife, and stabbed deceased, but contended that he acted in self-defense, and in the defense of his daughter whom Harris was menacing. Other pertinent facts will be stated in the course of the opinion in connection with the points to which they relate.

By contrasting the great variety of errors as alleged in the motion for a new trial with the points now relied on for a reversal, it will be seen that the appellate issues have been sharply reduced. As narrowed, they may be said to be limited to two general propositions, both bottomed on rulings of the trial court with respect to certain evidence admitted on the part of the State.

I. The first of appellant's complaints is that the several dying declarations of deceased, five in number, were improperly admitted in evidence over his objections and exceptions. It is the contention that there was no sufficient foundation laid for the introduction of any of the statements as dying declarations, in that it was not shown that they were made in anticipation of impending dissolution and at a time when the declarant had abandoned all hope of recovery. In view of the position taken by the State, it becomes unnecessary to relate even the substance of the several statements, or the circumstances attending...