State v. Livingston
| Decision Date | 03 June 1918 |
| Docket Number | No. 20732.,20732. |
| Citation | 204 S.W. 262 |
| Parties | STATE v. LIVINGSTON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jasper County; R. A. Pearson, Judge.
Etha Livingston was convicted of murder in the second degree, and she appeals. Reversed and remanded.
Defendant was charged by information with the murder of her husband, Charles Livingston, and was convicted of murder in the second degree, and sentenced to the penitentiary for ten years. She has appealed.
They lived in Joplin, and had two children, a son and a daughter, whose ages are not shown. Neither of those children testified in the case. The husband was interested in mines which the evidence for defendant tends to show were unprofitable. His wife, the defendant, was enamored of another married man, Jim De Graffereid, and was, to some extent, addicted to liquor. A brother of Charles Livingston committed suicide in 1911 by shooting himself, and Charles had several times spoken of killing himself. The defendant put in evidence a letter from her husband to her, dated February 23, 1912, in which he intimated that he would take his own life. The authenticity of that letter was not questioned. On the other hand, one witness stated that she heard defendant express a wish that her husband were dead.
The evidence for the state tends to show that on the morning of September 21, 1915, the day of the alleged offense, the defendant and her husband quarreled, and that she and De Graffereid spent a portion of that afternoon together. The husband was shot in their home about 5:30 p. m. that afternoon. He and the defendant were the only ones in the home at that time. In a few minutes Dr. Johnson, a next door neighbor, hard of hearing, entered the Livingston home. He found the husband lying in the front room with his head across the sill of the loot leading to the porch. There was a revolver on the floor in front of him about a foot distant. A bullet had pierced his skull. Drs. Johnson and Winchester shaved around the wound and dressed it. They testified that the bullet entered about an inch to the right of the vertical median line in the back of the skull, and that it appeared to have gone straight in. Dr. Craig, who held the autopsy, testified that the bullet entered about halfway between such median line and tie right car, and that it ranged upward and was lodged just within the brain above the left eye just at the edge of the hair. The Lair was not singed, and there were no powder burns. Dr. Craig said that the wound could have been self-inflicted. The other two physicians said that it could not have been so. Dr. Johnson testified that he did not notice that defendant was under the influence of liquor, but that she seemed excited, and strove to help him in his work with the husband; that the husband seemed able to answer questions in monosyllables;that witness was trying to rouse him to see how badly be was hurt, and that defendant was trying to assist witness in getting answers to the questions, and that in doing so defendant kicked the husband several times, not violently; that the husband answered the wife's questions, but that witness could not hear the answers; that in answer to something the husband said, the wife said "I never done it; I never done it."
Dr. Winchester testified that defendant wanted them to operate on her husband, but that they refused because the bullet had entered the brain, and that ha asked the wounded man if he wished to make any statement as to how it occurred, and that the answer was, "What is the use?" Witness further stated that the wife heard the answer.
About an hour after the injury Ray Bond, the assistant prosecuting attorney, called to see the wounded man. The defendant offered to prove that Bond then asked. Livingston how the shooting occurred, and that Livingston answered, "I did it myself." The offer was made on the ground that such statement was part of the res gestæ. The evidence was excluded.
Livingston was taken to the hospital at Webb City, where he died on October 9th following. While in the hospital he was visited by S. W. Bates, the prosecuting attorney, in company with his brother and with W. T. Bridges, a deputy sheriff. The defendant offered to prove by said Bridges that at that time Mr. Bates said to Livingston, and that Livingston answered, "Yes, I guess I will;" and that Livingston then said to them, "I shot myself;" and that on being asked why he had shot himself he answered, "I was disgusted." That evidence was offered as a dying statement, and was excluded.
This prosecution was not begun until about January, 1917, more than a year after Livingston's death. In the meantime the relations between Jim De Graffereid and the defendant became more flagrant. It appears that, for a while at least, he abandoned his wife and lived with the defendant. The wife of the defendant's paramour in January, 1917, informed the prosecuting attorney that the defendant had, on the night of the shooting, in defendant's home, told her, Mrs. De Graffereid, that she, the defendant, had shot her husband. Mrs. De Graffereid testified to the same thing at the trial;but on cross-examination she admitted that she had told no one of such fact prior to her telling the prosecuting attorney as above stated. Further on in her cross-examination she claimed to have previously told one other person.
Byron H. Coon, of Joplin, W. R. Shuck, of Webb City, and John H. Flanigan, Jr., of Carthage, for appellant. Frank W. Mc-Allister, Atty. Gen., and S. P. Howell, Asst. Atty. Gen., for the State.
ROY, C. (after stating the facts as above).
I. The statement made by Charles Livingston to Bond was not admissible as part of the res gestæ. It was made about an hour after the shooting. That length of time would not necessarily exclude it, but it was made after Dr. Winchester had asked him if he desired to make a statement, and he had answered, "What is the use?" It was only on second thought that he had stated that he had done it himself. That answer was not automatic, nor was it an "undesigned incident" of the shooting. It did not spring spontaneously out of the fact of the shooting. This question has been fully considered by White, C., in State v. Reeves, 195 S. W. 1027, and we are abide by the doctrine there...
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...Harris had indicated a belief on his part that he would be sufficiently recovered as to leave the hospital in a few days. In State v. Livingston (Mo.), 204 S.W. 262, where one the questions was whether a declaration was made under the sense of impending death and wherein no physician or oth......
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