State v. LaMance

• Decision Date: 25 September 1941
• Docket Number: No. 37467.,37467.
• Citation: 154 S.W.2d 110
• Parties: THE STATE v. WILLIAM F. LAMANCE, Appellant.
• Court: Missouri Supreme Court

154 S.W.2d 110 THE STATE
v.
WILLIAM F. LAMANCE, Appellant. No. 37467. Supreme Court of Missouri. Division Two, September 25, 1941.

[154 S.W.2d 111]

Appeal from Chariton Circuit Court. — Hon. James S. Rooney, Special Judge.

REVERSED AND REMANDED.

[154 S.W.2d 112]

Harry K. West for appellant.

(1) The Circuit Court of Linn County, Missouri, erred in overruling defendant's plea in abatement and motion to quash the information because the defendant was never accorded a preliminary hearing upon the charges in said information before a justice of the peace. Secs. 13945, 13946, R.S. 1939; Secs. 12268, 12269, R.S. 1929, Laws 1935, p. 210; Sec. 2137, R.S. 1929; Sec. 3893, R.S. 1939; Laws 1931, p. 203; Heather v. Palmyra, 276 S.W. 872, 311 Mo. 32; State v. Kenyon, 126 S.W. (2d) 345, 343 Mo. 1168; 34 C.J., sec. 832, pp. 526-527; Gray v. Clement, 286 Mo. 100; State ex rel. Drew v. Trimble, 306 Mo. 657; Russell v. Grant, 122 Mo. 161; McDermott v. Gray, 198 Mo. 266; State v. Baker, 285 S.W. 416; Ex parte Snyder, 64 Mo. 58; State ex inf. v. Toliver, 315 Mo. 737, 287 S.W. 312; Ayres v. Lattimer, 57 Mo. App. 78; State ex rel. McCutcheon v. Cooley, 12 S.W. (2d) 466, 321 Mo. 786; State v. McKinley, 11 S.W. (2d) 115; 34 C.J., sec. 834, pp. 528-529. (2) Likewise the Circuit Court of Chariton County, Missouri erred in overruling defendant's plea in abatement and motion to quash the information. Authorities under Point (1); State v. Tull, 62 S.W. (2d) 389, 333 Mo. 152. (3) The court erred in overruling defendant's motion to suppress the evidence of the witness Koch and in overruling defendant's objections thereto concerning blood spots and stains found in the LaMance home and analyzed by the witness. Sec. 11, Art. II, Mo. Const.; Secs. 44a, 46, Art. IV, Mo. Const.; Secs. 8358, 8362, R.S. 1939, Laws 1931, p. 230; State ex rel. v. McDowell, 334 Mo. 653; State v. Steeley, 33 S.W. (2d) 938, 327 Mo. 6; State v. Owens, 302 Mo. 348, 259 S.W. 100; Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652; State v. Rebasti, 267 S.W. 858, 306 Mo. 336; State v. Richards, 67 S.W. (2d) 58, 334 Mo. 485; State v. Raines, 98 S.W. (2d) 580, 339 Mo. 884; Cornelius on Search & Seizure (2 Ed.), p. 179; Weiss v. United States, 208 U.S. 321, 84 L. Ed. 298. (4) The court erred in refusing to receive in evidence the testimony of Mrs. Clyde Finney to the effect that the deceased, Ella LaMance, on Sunday night, August 7, complained to the witness that her head hurt her and that she, the deceased, bumped her head that afternoon at the creek. State v. Moxley, 102 Mo. 374. (5) The court committed error in failing and refusing to define the words (a) "premeditatedly," (b) "malice aforethought" and (c) "deliberation," as used in the instructions. State v. Crowley, 139 S.W. (2d) 473; Sec. 4070, R.S. 1939; State v. Bevins, 43 S.W. (2d) 433, 328 Mo. 1046; State v. Kotovsky, 74 Mo. 247; Kelley's Criminal Law & Procedure (4 Ed.), sec. 390, p. 353; 30 C.J., sec. 597, pp. 343, 344, sec. 601, pp. 347, 348; State v. Stanbeck, 2 Pac. (2d) 1050, 79 A.L.R. 887; State v. Harris, 76 Mo. 361; State v. Garrett, 276 Mo. 302, 207 S.W. 784; 26 Amer. Juris. 528. (6) The court committed error in refusing to allow the witness Clifford Austin to state his opinion as to the cause of the conditions found on deceased's body and further committed error in striking out the testimony of the witness. State v. Moxley, 102 Mo. 374; 30 C.J., sec. 448, pp. 219-220; State v. Pyles, 206 Mo. 623. (7) The court erred in giving Instruction 9 because it was broader than the evidence. State v. Farmer, 111 S.W. 276; State v. Munday, 76 S.W. (2d) 1088; State v. Lloyd, 87 S.W. (2d) 418, 337 Mo. 990. (8) The court erred in giving Instruction 5 because it assumed facts in dispute. State v. Samuels, 45 S.W. 1088, 144 Mo. 68; State v. Carter, 168 S.W. 679, 259 Mo. 349. (9) The court erred in permitting the State in rebuttal to prove the conversations between Barbee and Maude Cross. State v. Cox, 263 S.W. 215; State v. Baublits, 27 S.W. (2d) 16, 324 Mo. 1119. (10) The court erred in preventing Dr. Smith from testifying that deceased told him she thought she had a cancer. State v. Ilgenfritz, 263 Mo. 615, 173 S.W. 1041; 1 Wigmore, Law of Evidence, secs. 143, 144; Bowie v. Arkansas, 185 Ark. 834, 49 S.W. (2d) 1049, 83 A.L.R. 426; 83 A.L.R. 434; 34 Am. Ann Cases, 1279; State v. Moxley, 102 Mo. 374. (11) The trial court committed error in refusing defendant to show by Mrs. Asa Cross, Rosalee Ihrig and Mrs. Madorie statements of deceased, that she had left home without appellant's knowledge. State v. Moxley, 102 Mo. 374; State v. Ilgenfritz, 263 Mo. 615; 1 Wigmore, Law of Evidence, secs. 143-144. (12) The court erred in overruling defendant's demurrer to the evidence at the close of the case and in refusing to instruct the jury to acquit the defendant and in refusing to grant defendant a new trial because of lack of substantial, credible testimony. State v. Francis, 199 Mo. 671; 23 C.J.S. 904, p. 154; State v. Pritchett, 39 S.W. (2d) 794; State v. Moore, 95 S.W. (2d) 1167, 339 Mo. 52; State v. Wolf, 87 S.W. (2d) 436, 337 Mo. 1002; State v. King, 53 S.W. (2d) 252; State v. Richardson, 36 S.W. (2d) 944; State v. Long, 80 S.W. (2d) 154; State v. Duncan, 50 S.W. (2d) 1021; State v. Bass, 251 Mo. 107.

Roy McKittrick, Attorney General, and W.J. Burke, Assistant Attorney General, for respondent.

(1) The Honorable Paul Van Osdol, Judge of the Circuit Court of Linn County, Missouri, and Judge James S. Rooney, who sat as Special Judge of the Circuit Court of Chariton County, Missouri, did not err in refusing to sustain plaintiff's motion in his plea of abatement and motion to quash or the motion to strike the second plea in abatement and motion to quash the information. Secs. 12269, 12285, R.S. 1929; State ex inf. Gentry, Attorney General, v. Toliver, 287 S.W. 312, 315 Mo. 746; State ex rel. Rice v. Simmons, 35 Mo. App. 374; State ex rel. v. Powles, 136 Mo. 376; 46 C.J., 1053, sec. 366; Eaker v. Common School Dist. No. 73, Butler County, 62 S.W. (2d) 778; State v. Lonon, 56 S.W. (2d) 382; State v. Ottinger, 36 S.W. (2d) 942; State v. Bockman, 124 S.W. (2d) 1205, 344 Mo. 80; State v. Strawther, 116 S.W. (2d) 133; State v. Wilson, 136 S.W. (2d) 993; State v. Bailey, 126 S.W. (2d) 224. (2) The court did not err in overruling defendant's motion to suppress evidence consisting of blood spots and blood stains on the walls, woodwork and floors of defendant's home and from clothing owned by the defendant which was taken without a search warrant, and the court did not err in allowing the introduction of said articles in evidence, nor did the court err in allowing the State to introduce into evidence such articles or tests made of any of the spots or stains. State v. Allen, 261 S.W. 69; State v. Bliss, 18 S.W. (2d) 509; State v. Tull, 62 S.W. (2d) 389, 333 Mo. 152; State v. Stogsdill, 23 S.W. (2d) 22, 324 Mo. 105; State v. Gaters, 39 S.W. (2d) 548; State v. Shawley, 67 S.W. (2d) 74, 334 Mo. 352; State v. Malone, 62 S.W. (2d) 909, 333 Mo. 594; State v. Barr, 102 S.W. (2d) 629, 340 Mo. 738; State v. Richetti, 119 S.W. (2d) 330, 342 Mo. 1015. (3) The court did not err in allowing the endorsement on the information of the witness Claude Snider during the progress of the trial nor did it err in overruling defendant's affidavit of surprise. State v. Ancell, 62 S.W. (2d) 443, 333 Mo. 26; State v. Short, 87 S.W. (2d) 1031, 337 Mo. 1061; State v. Shawley, 67 S.W. (2d) 74, 334 Mo. 352; State v. Lindsey, 80 S.W. (2d) 123. (4) The court did not error in refusing to declare a mistrial on account of the cross-examination of Maude Cross, a defense witness, as to the rumor and gossip that connected the witness with the defendant. State v. Scott, 58 S.W. (2d) 275, 332 Mo. 255, 90 A.L.R. 860; State v. Nasello, 30 S.W. (2d) 132, 325 Mo. 442; State v. Sherry, 64 S.W. (2d) 238; State v. Walker, 110 S.W. (2d) 780. (5) The court did not err in overruling defendant's motion for mistrial on account of the argument of Charles Lamkin in reference to the defendant in producing the witness Ogle or in calling the defendant a "big bully." State v. Quinn, 136 S.W. (2d) 985; State v. McKeever, 101 S.W. (2d) 22, 339 Mo. 1066. (6) The court did not err in refusing the witness Violetta Clark to testify as to the physical condition of the deceased or to testify that the deceased was suffering from morphine poisoning when Violetta Clark saw the deceased in Kansas in the year 1931. Miss. Power & Light Co. v. Jordan, 143 So. 483, 164 Miss. 174; Shawnee Gas & Electric Co. v. Hunt, 122 Pac. 673, 32 Okla. 368; In re Flatau's Estate, 73 Pac. (2d) 506; 22 C.J., sec. 640, p. 545. (7) The court did not err in sustaining all objections made by the State to the proof offered by the defendant with the testimony of Violetta Clark, Nellie Ihrig, Nancy Kroeger, Mrs. Clyde Finney, Mrs. Laura LaMance, Mrs. Madorie and Mr. Merle Griffin, as to statements made by the deceased, Ella LaMance, as to her dissatisfaction with life and statements that she might commit suicide. State v. Fenley, 309 Mo. 520, 275 S.W. 36; State v. White, 99 S.W. (2d) 72; State v. Letz, 294 Mo. 333, 242 S.W. 681; State v. Weber, 188 S.W. 122; State v. Ilgenfritz and Davis, 173 S.W. 1041, 263 Mo. 615; State v. Menz, 106 S.W. (2d) 440, 341 Mo. 74. (8) The court did not err in sustaining the objection of the State to the testimony of Cliff Austin concerning the condition of her body in reference to the streak around the neck and the clot upon the head. Castanie v. Railroad, 249 Mo. 192, 155 S.W. 38, L.R.A. (1915A) 1074; Commonwealth v. Farrell, 187 Pa. St. 408; Vol. 53 L.R.A. (N.S.) 1915A, pp. 1071, 1075; State v. Williams, 87 S.W. 175, 337 Mo. 884, 100 A.L.R. 1503; State v. Wilkins, 100 S.W. (2d) 889; State v. Long, 22 S.W. (2d) 809, 324 Mo. 205 (9) There was substantial evidence to submit the case to the jury who passed upon the sufficiency of the evidence. State v. Vigus, 66 S.W. (2d) 854; State v....