State v. Ilgenfritz

• Decision Date: 23 February 1915
• Parties: THE STATE v. ED. F. ILGENFRITZ and LOTTIE DAVIS, Appellants
• Court: Missouri Supreme Court

173 S.W. 1041

263 Mo. 615

THE STATE v. ED. F. ILGENFRITZ and LOTTIE DAVIS, Appellants

Supreme Court of Missouri, Second Division

February 23, 1915

Appeal from Adair Circuit Court. -- Hon. Nat M. Shelton, Judge.

Reversed and remanded.

J. A Cooley for appellants.

(1) Defendants' demurrer should have been sustained. Neither at the close of the State's case nor at the close of the whole case, was there evidence sufficient to justify submitting the case to the jury, nor to sustain a verdict against either defendant. The verdict is the result of passion and prejudice of the jury, and should be set aside the judgment reversed and defendants discharged. State v Francis, 199 Mo. 671. (2) Reversible error was committed in excluding the evidence of Ex-sheriff Williams to the effect that deceased had just before threatened to kill his wife and himself. The threat to kill himself, had there been no mention of his wife, should have been admitted in view of his act in borrowing the pistol with which he was killed, and his conduct and statements at the house as testified to by Mrs. Davis and her children. State v. Fitzgerald, 130 Mo. 432. And in view of the defense offered and the facts testified to by Mrs. Davis and the children, the borrowing of the pistol, going to the house late at night obviously for some unlawful purpose, the testimony of the Danes family as well as the Davises as to what transpired there and the stress laid by the State on Mrs. Davis's failure to give an immediate alarm, the threat of Davis to kill his wife as well as himself was clearly admissible and its exclusion reversible error. It tended to characterize and explain his presence and purpose there and show that the fear which actuated her in failing to go out were well founded. State v. Elkins, 63 Mo. 164. (3) The clothes offered by the State were not sufficiently identified, or shown to be in the same condition, if defendant's clothes, as when they were in his possession; they were shown not to be the clothes he had on when arrested, and so far as there was any evidence on the subject it showed they were not worn by him the night of the alleged homicide. There was no sufficient foundation laid for their introduction, nor for the evidence of Dr. Deason as to alleged bloodstains, and Dr. Deason's qualification was not shown.

John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.

(1) The evidence justified giving an instruction on murder in the second degree. State v. Andrews, 76 Mo. 101. (2) The court did not err in sustaining objections to proof of alleged statements of deceased, not made at time of the shooting in question, tending to show that deceased contemplated suicide. These alleged statements were not accompanied by any attempt, at the time, to carry them into execution; and, therefore, were hearsay and inadmissible for any purpose. State v. Baurle, 145 Mo. 25; State v. Punshon, 133 Mo. 52; State v. Punshon, 124 Mo. 457; State v. Terry, 172 Mo. 218; State v. Fitzgerald, 130 Mo. 432; State v. Curtis, 70 Mo. 597; 1 Greenleaf on Evidence (14 Ed.), sec. 102; State v. Wilson, 250 Mo. 329. (3) The testimony tending to prove an alleged statement made by deceased, a day or two before the shooting, that he intended to kill his wife was properly excluded. There was no pretense of self-defense in this case. The defendants denied the killing; therefore, this testimony was the baldest hearsay, not binding on the State, and not admissible for any purpose. See cases last cited. (4) The court properly admitted in evidence the pants and shirt proven to have been worn by defendant Ilgenfritz before the killing, and which he afterward had with him in jail. There was blood upon the weatherboarding on the house, where deceased was shot, up as high as the fifth board. There were stains upon the pants that were proven to be human bloodstains. These facts were sufficient to warrant the introduction of the pants in evidence, and also the testimony of Dr. Deason as to the character of stains upon same. State v. Neal, 178 Mo. 63; State v. Sherouk, 78 Conn. 718; State v. Roszcyniala, 125 Wis. 414; State v. Neufeld, 165 N.Y. 431; People v. Anthony, 146 Cal. 124; State v. Henry, 51 W.Va. 283. (5) Defendant's demurrer to the evidence was properly overruled. The evidence amply supports the verdict. State v. Baurle, 145 Mo. 1; State v. Concelia, 250 Mo. 411; State v. Rumfelt, 228 Mo. 446; State v. Rasco, 239 Mo. 335; State v. Barrington, 198 Mo. 23. While the evidence is largely circumstantial, it is ample to prove the two things necessary to uphold the verdict, i. e.: First, the corpus delicti, the criminal act; and, second, the defendant's guilty agency in the criminal act. (a) To justify a conviction on circumstantial evidence alone, the circumstances should be consistent with each other and with the guilt of the defendant. State v. Maxey, 102 Mo. 374; State v. Hendricks, 172 Mo. 654; 4 Elliott on Evidence, sec. 2709. The circumstances of this case fully meet these requirements; besides, there was direct testimony connecting defendants with the crime. (b) If there is any evidence to support the verdict, then it is the right of the jury to pass upon: First, the weight of the evidence. State v. Baurle, 145 Mo. 1; State v. Shelton, 223 Mo. 141; State v. Devorss, 221 Mo. 477; State v. Sassman, 214 Mo. 477; State v. McDowell, 214 Mo. 343. Second, the credibility of witness. State v. Devorss, 221 Mo. 447; State v. Sassman, 214 Mo. 738; State v. McDowell, 214 Mo. 343; State v. Wolley, 215 Mo. 687; State v. Baurle, 145 Mo. 23. Third, to determine conflict in the evidence. State v. Baurle, 145 Mo. 23; State v. Devorss, 221 Mo. 477; State v. Sharp, 233 Mo. 298.

WILLIAMS, C. Roy, C., concurs.

OPINION

WILLIAMS, C.

Under an indictment charging them jointly with the murder of Jacob W. Davis, defendants were tried in the circuit court of Adair county and found guilty of murder in the second degree. The punishment of defendant Ilgenfritz was assessed at fifteen years and that of defendant Lottie Davis at ten years. Defendants duly perfected an appeal to this court. The evidence on the part of the State tended to establish the following facts: The dead body of Jacob W. Davis, who, prior to his death, was the husband of defendant Lottie Davis, was first discovered about 6:30 a. m., on Sunday, October 27 1912, on the ground, a few feet in the rear of the house in which defendant Lottie Davis and her five daughters then lived in the city of Kirksville, Missouri. The house was a four-room cottage, fronting east, having one front and one rear door. Deceased's body was found lying on its left side in a north-and-south position; the feet near a brick walk at the rear door, and the head toward the south. Underneath the body was a thirty-eight-caliber pistol containing two discharged and three loaded cartridges and between his body and the house was a leather walking stick with a steel rod through the middle. A tub was located between the body and the house. Just north of the brick walk or platform was found a man's light colored hat. The band in the hat contained the initials of the defendant Ilgenfritz. Deceased had been seen wearing this hat a few days prior to the tragedy; one witness saying that he understood that deceased and defendant had traded hats some time prior to the tragedy. A black mark caused by powder burn or smoke was discovered on the under side of the rim of the hat. One strip of weather-boarding on the south side of the house was chipped or split, and there were spots of blood on the weather-boarding, beginning on the fifth board from the foundation and extending down to the ground. There was a bullet hole, caused by a thirty-eight-caliber ball, in the head of the deceased. The bullet entered about an inch and a half above the right ear, passed entirely through the brain and skull and lodged under the skin about two inches above and about three-quarters of an inch in front of the left ear. The skin around the left eye was blackened. The revolver found under the body of the deceased was identified as the property of one C. D. Stott, a citizen of Kirksville, and shown to have been loaned by said Stott to the deceased on the afternoon preceding the homicide. At the time of the tragedy, deceased and his wife, because of domestic troubles, were living apart; the deceased making his home with a daughter by his first wife. The house in which Mrs. Davis lived, which for convenience will be hereinafter referred to as the Davis home, was located about seventy-five feet west of the Wabash railroad tracks which run north-and-south at this point. One hundred and seventy-five feet south of the Davis home was the home of Mrs. Danes and her three children. The ground between the Davis home and the Danes home was open and unoccupied. The Davis home was in the southwest part of the city and in going to and coming from the main part of town the people of this section frequently used the railroad right of way as a footpath, coming down the railroad tracks to a place in front of the Danes home where there was a gap in the fence and a path led into the road which ran north-and-south in front of the two houses. Defendant Mrs. Davis and defendant Ilgenfritz appeared to be very intimate and friendly in their association with each other. Ilgenfritz had been seen by neighbors to go into the Davis home on different occasions and sometimes as often as two or three times a day. One witness testified that he saw defendant go into the Davis home about six o'clock on the evening of the homicide. Ilgenfritz and Mrs. Davis were also seen together at different places of amusement and on some occasions the husband of Mrs. Davis accompanied them. On one occasion, at night,...