State v. Jones

• Citation: 197 S.W. 156
• Decision Date: 16 July 1917
• Docket Number: No. 20,086.,20,086.
• Parties: STATE v. JONES.
• Court: United States State Supreme Court of Missouri

197 S.W. 156

STATE v. JONES.

No. 20,086.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Appeal from Circuit Court, Morgan County; J. G. Slate, Judge.

W. D. Jones was convicted of manslaughter in the second degree, and he appeals. Reversed and remanded.

Irwin & Haley, of Jefferson City, and Sid C. Roach, of Linn Creek, for appellant. Frank W. McAllister, Atty. Gen. (E. M. Connor, of Jefferson City, of counsel), for the State.

WHITE, C.

An information was filed in the circuit court of Morgan county on August 28, 1916, charging the appellant and one B. Frank Bowline with manslaughter in the second degree, under section 4458, R. S. 1909. A severance was granted, and on the trial of the appellant he was convicted, and his punishment assessed at a term of three years in the state penitentiary.

The evidence shows that the defendant Jones was a farmer, 33 years of age, living near Cooper, a station a few miles from Bagnell, in Miller county, but most of the time pursued the carpenter's trade in Bagnell and vicinity. Leona Vann, the woman in the case, at the time of the trial in December, 1916, was 19 years of age, and in 1914 and 1915 was living with her mother, who conducted a hotel at Bagnell. It appears, from letters of the defendant introduced in evidence, that he became very much infatuated with this Leona Vann while working at his carpenter's trade at Bagnell, although he had a family living at Cooper. A criminal intimacy ensued between Jones and Leona Vann, which resulted, some time in May, 1916, in a visit of the two to the codefendant Bowline, who was a doctor at Versailles, in Morgan county, and the alleged performance by him of a criminal operation, causing the death of an unborn child. The defendant claimed that the service performed by Bowline was entirely proper and usual.

Much contradictory evidence occurs in the record. It includes two flatly contradictory written statements made at different times by Leona Vann, one in which she incriminated Bowline and Jones, and another in which she exculpated them, and many other statements of hers, made to different witnesses, which are at variance with her testimony in the case. It also includes contradictory statements made by defendant, and evidence of witnesses which tended to impeach his character for veracity. It includes the testimony of expert physicians regarding the probable effects of the alleged acts of Dr. Bowline, and the probable cause of the results which ensued.

I. On the court's own motion the following instruction was given to the jury:

"In this case, as in all criminal cases, the law presumes the innocence and not the guilt of the defendant, and this presumption of innocence attends him throughout the trial and at its close entitled him to acquittal, unless, viewing the evidence as a whole, the jury have a reasonable doubt as to defendant's guilt, as defined in the next instruction."

That is to say, if the jury had a reasonable doubt of his guilt, this presumption of innocence was denied him. The muddling of this instruction by using the word "unless," instead of "provided," or some word of similar import, was probably an oversight. Appellant's objection to it was not preserved in his motion for new trial; but attention is called to it, so that the mistake may not occur on another trial.

II. In the progress of the trial many objections to the rulings of the judge in admitting evidence were registered. This applies particularly to the cross-examination of defendant himself, much of which was claimed to be outside the scope of his chief examination. The defendant in chief admitted his illicit relations with the girl, and testified that she claimed another man was the father of her unborn child. This testimony left it open for the state to inquire particularly concerning the continuance of the relations between defendant and the girl for the purpose of showing the extent and nature of his concern in her condition. His testimony had been offered in chief as tending to show an absence of motive for the crime; it then became competent for the state, without violating his right under section 5242, R. S. 1909, to cross-examine him along the same line for the purpose of showing motive. State v. Ivy, 192 S. W. 733, and cases cited.

However, at one point in the cross-examination, the trial judge himself took it up in a manner to indicate that the prosecutor was not developing facts against defendant as fast as he ought to do, and carried on the examination with great vigor and to such length that four typewritten pages were necessary to transcribe his questions and the answers to them. This cross-examination related mainly to a failure of defendant to employ some other physician than Dr. Bowline. Many others were mentioned by name, and the examination indicated an attempt to discredit defendant in a general way for visiting Bowline. No evidence was offered by the state to reflect upon the professional standing of Bowline; he was not even cross-examined when he testified. Any cross-examination of defendant, for the purpose of making him explain why he did not employ such and such a physician, was not only outside his examination in chief but irrelevant to any issue in the case.

But the principal harm of the proceeding was the fact that the judge himself cross-examined, not tactfully,...