State v. Liolios
| Decision Date | 01 December 1920 |
| Citation | 225 S.W. 941,285 Mo. 1 |
| Parties | THE STATE v. JAMES LIOLIOS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. Almon Ing, Judge.
Reversed and remanded.
Henson & Woody for appellant.
(1) The opinion of a lay witness as to the sanity or insanity of a person is only competent after acquaintance and frequent association is shown, and then all facts upon which the opinion is based must be detailed by the witness, and, unless this is done, such testimony is incompetent. Hunter v Biggs, 254 Mo. 54; State v. Morris, 263 Mo 349; State v. Erb, 74 Mo. 205; State v Speyer, 194 Mo. 469; State v. Williamson, 106 Mo. 170; People v. Phipps, 268 Ill. 210; People v. Strait, 148 N.Y. 566; Mull v. Carr, 5 Ind.App. 491. (2) It was competent for Dr. Seybold to testify as to the causes of temporary insanity and especially so after he had stated that he knew some of them. The action of the court in excluding this testimony and its comments relative to same were highly prejudicial to the defendant. State v. Speyer, 194 Mo. 472; State v. Rose, 271 Mo. 17; State v. Daly, 210 Mo. 676. (3) The court erred in excluding the testimony offered by defendant concerning his domestic life from the date of his marriage up until the time of the tragedy, the manner in which he treated his wife and children during this time, the affection he bore for his wife and she for him, his affection for his children and his attachment to his home. These were all circumstances which should have gone to the jury as throwing light upon his mental condition at the moment of firing the fatal shot. Baldwin v. State, 12 Mo. 149; State v. Speyer, 194 Mo. 469; State v. Kring, 64 Mo. 591; State v. Porter, 213 Mo. 59; State v. Speyer, 182 Mo. 77; State v. Speyer, 207 Mo. 540. (4) Instruction numbered 3 is erroneous for the reason that it injects the question of general insanity into the case where there is no such issue tendered and because it fails to instruct the jury on temporary insanity. (5) Instruction No. 4, as requested by defendant, properly declared the law applicable to the issues in this case, and the court should not have modified said instruction by striking out all the reference to "insane impulse" with a pencil and leaving the same so the jury could still read the parts stricken out. This was equivalent to instructing the jury that "insane impulse" was no defense in the case when, as a matter of law, it is a complete defense. The court evidently confused and confounded the term "insane impulse" with irresistible impulse" or "uncontrollable impulse," neither of which are defenses to crime. State v. Duestrow, 137 Mo. 71. (6) One cannot legally be convicted of murder in the first degree where the killing was done under excitement and passion. Instruction numbered seven should not, therefore, have been given, as it tells the jury that excitement and passion do not even mitigate defendant's act, as a matter of law, such condition of mind would reduce the act to manslaughter in the fourth degree. There was no evidence of "hatred" in the case and this term should not have been included in the instruction. R. S. 1909, secs. 4448, 4468; State v. Birks, 199 Mo. 276; State v. Campbell, 210 Mo. 229; State v. Holme, 54 Mo. 165; State v. Edwards, 70 Mo. 483; State v. Ellis, 74 Mo. 215; State v. Conley, 255 Mo. 185; State v. Grugin, 147 Mo. 39; People v. Bowen, 130 N.W. 706. (7) The question of just cause or provocation to produce heat of passion is a mixed question of law and fact, and, if found sufficient, it reduces the crime which would otherwise have been murder to manslaughter. Instruction No. 8 is erroneous because it declares as a matter of law that infidelity of the wife and the belief thereof by the husband is not just provocation, and, in effect, tells the jury that if defendant is guilty at all he is guilty of murder in the first degree regardless of provocation. State v. Stewart, 204 S.W. 14; State v. Grugin, 147 Mo. 39; People v. Bowen, 130 N.W. 706; People v. Wood, 126 N.Y. 249. (8) Where insanity is interposed as a defense to an alleged crime, the inquiry is limited to the single question of the capacity of the one charged to distinguish between right and wrong, at the time the act was committed, therefore, Instruction A, requested by the defendant should have been given, and its refusal is error prejudicial to the defendant. (9) The court should have instructed the jury on manslaughter in the fourth degree. R. S. 1909, sec. 5231; State v. Stewart, 212 S.W. 855; State v. Webb, 205 S.W. 190; People v. Wood, 126 N.Y. 249; State v. Lackey, 230 Mo. 720.
Frank W. McAllister, Attorney-General, and J. W. Broaddus, Assistant Attorney-General, for respondent.
(1) It is the well settled law of this State, shown by the cases cited by appellant, that persons who are not experts, but who have had favorable opportunities for ascertaining, by observation, the facts, can testify as to their opinion touching the defendant's insanity. These witnesses testified that they had known appellant several years; that they saw him almost every day before the shooting of his wife and that they were well acquainted with him and that from his conduct they would say he was sane. They were in a position to give an opinion as to appellant's sanity. Moore v. Moore, 67 Mo. 192; State v. Bryant, 93 Mo. 273. (2) The court did not err in refusing to permit Dr. Seybold to testify as an expert. While he had had twenty-six years' experience as a general practitioner, there was no showing that he was sufficiently qualified to testify as an expert on insanity. State v. Bell, 212 Mo. 112. It is a matter resting largely in the discretion of the trial court as to whether or not a witness is properly qualified to give testimony as an expert and an appellate court will not reverse a case on account of a mistake of judgment on the part of the trial court except in an extreme case. 22 C. J. p. 526; Rodgers on Expert Testimony (2 Ed.), par. 22; 1 Wharton's Criminal Evidence (10 Ed.), p. 83. (3) The trial court permitted appellant to show the facts concerning his domestic life during a reasonable length of time prior to the killing of his wife. We are satisfied that when the court reads the evidence of the witness Minnie Travis, it will see that all the facts concerning appellant's domestic life which had a tendency to throw any light on the condition of his mind at the time of the homicide were admitted. Underhill Criminal Evidence (2 Ed.), par, 159; Sanchez v. People, 22 N.Y. 147. (4) Instruction 3 given by the court correctly declared the law in reference to a case of this kind. This instruction has many times been before this court. In one instance this court said it expressed in a "lucid manner, the well established law of this State." State v. Pagels, 92 Mo. 314; State v. Holloway, 156 Mo. 228; State v. Duestrow, 137 Mo. 69, 70. (5) The court did not err in modifying appellant's Instruction No. 4 by striking out all reference to the term "insane impulse." The doctrine of "insane or uncontrollable impulse" has been expressly repudiated by the courts of this State. Under our decisions the question is, did defendant know "right from wrong?" State v. Williamson, 106 Mo. 173; State v. Miller, 111 Mo. 551; State v. Soper, 148 Mo. l. c. 236; Markland v. Casualty Co., 209 S.W. 606; State v. Riddle, 245 Mo. 458; State v. Dunn, 179 Mo. 115. (6) Instruction 7 given by the court has been held by this court to be a proper instruction in a case of this character. State v. Paulsgrove, 203 Mo. 201. (7) There is no merit in the objection to Instruction 8 given by the court. It told the jury that if deceased, Tula Liolios, was unfaithful to her marriage vows, and defendant so believed, and so believing killed her, or if he killed her because of jealousy he entertained towards her, this was not sufficient or just cause or provocation. It correctly declared the law. State v. Anderson, 98 Mo. 473; State v. Burns, 148 Mo. 173. (8) Instruction 10 complained of by appellant was correct. Of this instruction this court has said: State v. Darrah, 152 Mo. 530; State v. Tobie, 141 Mo. 561; State v. Nibarger, 255 Mo. 293, 298. Instruction 10 is entirely different from the one before the court in the case of State v. Finkelstein, 269 Mo. 612, and to which the cases cited by appellant under this point refer. (9) The court did not err in failing to instruct the jury on manslaughter in the fourth degree. The evidence tended to prove a deliberate, premeditated case of murder in first degree. Before an instruction on manslaughter can be given it must appear from the evidence that there was reasonable provocation for the act of defendant, which was wholly absent in this case. State v. Stewart, 212 S.W. 855; State v. Webb, 205 S.W. 190. This question is not before this court for the reason that the record fails to show that defendant excepted at the time to the failure of the trial court to instruct on manslaughter in the fourth degree or on all necessary questions of law arising at the trial. State v. George, 214 Mo. 262; State v. Pfeifer, 267 Mo. 29; State v. Cook, 207 S.W. 833. (10) While it is true that the plea of insanity does not admit the grade of the crime yet the evidence in this case clearly tends to show the commission of but one offense -- that of murder in the first degree and no other.
The defendant, James Liolios, was convicted of the crime of murder in the first degree and sentenced to imprisonment for life in the...
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