State v. Liolios

• Decision Date: 11 June 1923
• Docket Number: No. 23671.,23671.
• Citation: 252 S.W. 621
• Parties: STATE v. LIOLIOS.
• Court: Missouri Supreme Court

252 S.W. 621

STATE v. LIOLIOS.

No. 23671.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal froth Circuit Court, Butler County; Almon Ing, Judge.

James Liolios was convicted of murder in the second degree, and he appeals. Affirmed. For opinion on former appeal, see 285 Mo. 1, 225 S. W. 941.

Henson & Woody, of Poplar Bluff, for appellant.

Jesse W. Barrett, Atty. Gen. (Ellison A. Poulton, of Canton, of counsel), for the State.

WHITE, J.

The appeal is from a judgment upon conviction of murder in the second degree. On a former trial the defendant was found guilty of murder in the first degree, and the judgment was reversed. State v. Liolios, 285 Mo. 1, 225 S. W. 941, where the facts are stated, and need hot now be repeated at length here.

The defendant ran a hotel at Poplar Bluff, and also conducted a shoeshop. One Harry Thomas, who had lived in St. Louis, was in Poplar Bluff, and a criminal intimacy ensued between Thomas and Tulle Liolios, the wife of the defendant, which appears to have been known to defendant, for it is stated that he remonstrated with her about it. Thomas finally went back to St. Louis. A letter appears in the evidence wherein Thomas apologized to the defendant for the wrong he had done him. About the same time his letter written to Tulle showed a desire to continue the improper relations. The appellant got hold of the latter letter, and shortly afterward, on the same day, he shot his wife in the room which they occupied at the hotel. No witness was present. Evidence was offered to show that his wife's infidelity had wrought upon defendant's mind until he was temporarily insane; that was the defense at the trial. The state offered evidence to show that the defendant was sane.

I. Several questions of law presented by the appellant in his assignment of errors were settled on the former appeal. The ruling of this court on a first appeal constitutes the law of the case, and the trial court on a second trial should be controlled by such rulings. McMenamy v. Kampelmann (Mo. Sup.) 217 S. W. 99; Lewis v. Barnes (Mo. Sup.) 220 S. W. 487, loc. cit. 490. It is not suggested by appellant that the evidence on the last trial was materially different from the evidence on the first trial. Among the questions so settled was that of the admissibility of the testimony of lay witnesses, giving their opinions as to the sanity of the appellant. State v. Liolios, 285 Mo. loc. cit. 13, 225 S. W. 941.

Considerable argument by the appellant is devoted to a consideration of causes which would reduce the judgment from murder to manslaughter. On the former appeal we held that the case was not one which authorized an instruction on manslaughter, 285 Mo. loc. cit. 18, 225 S. W. 941. Such argument is beside the question. On a re-examination of the evidence, though that was unnecessary, we are convinced that the defendant was not entitled to go to the jury on that issue.

II. The appellant directs his argument mainly against instruction No. 4, given by the court, because it contains this expression:

"Insanity is either partial or general. General alienation always excuses. Partial insanity does not always excuse. One may be partially insane, and yet be responsible for his criminal acts. The law does not excuse, unless the derangement is so great that it actually renders the person incapable, at the time of its commission, of distinguishing between right and wrong in respect to the particular act charged against him."

It is argued that the defense in this case was temporary insanity, as distinguished from permanent insanity, and that this injection of a definition of partial insanity tended to mislead and confuse the jury. The instruction cannot be so construed; the defendant might be afflicted with partial or general insanity, temporarily or permanently. It is contended that he was temporarily insane. That insanity might be partial or general. Indeed, some of the evidence would indicate that the defendant, if insane at all, was so solely on account of his wife's misconduct. However that may be, this part of the instruction could not have harmed the defendant, because it did not direct a verdict in regard to partial insanity, but proceeds as follows:

"You are further instructed that insanity may be temporary or permanent, and...