State v. Long

• Citation: 80 S.W.2d 154,336 Mo. 630
• Parties: The State v. George Long, Appellant
• Decision Date: 05 March 1935
• Court: United States State Supreme Court of Missouri

80 S.W.2d 154

336 Mo. 630

The State v. George Long, Appellant

Supreme Court of Missouri

March 5, 1935

Appeal from Knox Circuit Court; Hon. Allen W. Walker Special Judge.

Reversed and remanded.

Rendlen White & Rendlen, James C. Dorian and J. C Miller for appellant.

(1) Neither at the close of the State's case nor at the close of the whole case, was there evidence sufficient to justify submitting the case to the jury, nor to sustain a verdict against the defendant. (2) The trial court committed reversible error: (a) In overruling defendant's motion to cause to be returned to defendant the two .38-caliber loaded pistol shells, unlawfully taken by the sheriff or his deputies from the bureau drawer in defendant's home on the night of defendant's arrest, and in failing to suppress the evidence with respect to said shells. State v. Richards, 67 S.W.2d 61; State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A. L. R. 383; State v. Randazzo, 318 Mo. 764, 300 S.W. 757. (b) In failing to withdraw the evidence as to the .32-caliber shells from the jury's consideration upon the motion of defendant made at close of the State's evidence and renewed at close of all the evidence. Cases above cited. (3) The trial court committed error in allowing and permitting the bloody clothing of the deceased, Fay Oliver, worn by him at the time of his death, to be exhibited to the jury over defendant's objections. This was done several times during trial. The defendant had previously admitted the corpus delicti, that Fay Oliver had met his death on May 12, 1932, from lethal wounds and admitted all wounds on deceased's body, with location, course and character and fatality thereof as claimed by the State. Testimony was fully given with respect thereto by witnesses. State v. Creed, 299 Mo. 307, 252 S.W. 681; State v. Clough, 38 S.W.2d 39, 327 Mo. 700; State v. Ilgenfritz, 173 S.W. 1041, 263 Mo. 615, Ann. Cas. 1917C, 366; State v. Rennison, 306 Mo. 484, 267 S.W. 853; State v. Pearson, 270 S.W. 347; State v. Shanby, 67 S.W.2d 83; State v. Porter, 276 Mo. 396, 207 S.W. 777. (4) The court erred in failing to strike out and withdraw the evidence of bacteriologist Willett that the alleged stains on the overalls were blood stains. Due motions therefor at close of the State's evidence and again at close of all the evidence were overruled. The court also erred in refusing to give defendant's Instruction C withdrawing Willett's evidence as to character of these stains. (5) This as to purported admissions of defendant, such was hearsay, bottomed on hearsay of the most pronounced character, and boldest sort, was wholly incompetent, extremely prejudicial, and its admission is utterly indefensible, and the refusal of the court to strike it out was error. (6) The court erred in admitting the evidence of the performance and acts of the bloodhounds owned and brought to scene of tragedy by witness Fenton; erred in not overruling defendant's motion to strike out this evidence made at close of the State's evidence and renewed at the close of all the evidence; and erred in refusing to give defendant's Instruction D withdrawing this evidence from the consideration of the jury; and erred in giving State's Instruction 5 concerning said bloodhounds and their actions. State v. Fryer, 48 S.W.2d 894, 330 Mo. 362. (7) The court erred in not reprimanding and rebuking the prosecuting attorney, W. E. Stewart, for his unjustified and improper closing argument. It exceeded the bounds of legitimate argument and was grossly improper and intensely prejudicial. State v. Bobbst, 131 Mo. 339; State v. Lee, 66 Mo. 165; State v. Jackson, 95 Mo. 653; State v. Young, 99 Mo. 683; State v. Ulrich, 110 Mo. 365; State v. Warford, 106 Mo. 65; State v. Woodland, 111 Mo. 255; State v. Fischer, 124 Mo. 464.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in overruling appellant's motion to suppress the evidence of two .38-caliber cartridges. State v. Privitt, 39 S.W.2d 755; State v. Owen, 259 S.W. 100; State v. Williams, 14 S.W.2d 434; State v. Hadlock, 289 S.W. 945; State v. Rhodes, 292 S.W. 78. (2) The court did not err in overruling appellant's demurrer to the evidence at the close of the case and in holding that there was substantial evidence to support the verdict. State v. Rasco, 239 Mo. 535; State v. Steely, 33 S.W.2d 938; State v. Shawley, 67 S.W.2d 74; State v. Harris, 22 S.W.2d 802; State v. Henke, 285 S.W. 395; 16 C. J. 564. (3) The court did not err in permitting the introduction in evidence of the clothes worn by the deceased at the time of his death. State v. Gaters, 39 S.W.2d 548; State v. Stogsdill, 23 S.W.2d 22; State v. Schmittzehe, 3 S.W.2d 235; State v. Tarwater, 239 S.W. 480; State v. Mitchell, 262 S.W. 717; State v. Shawley, 67 S.W.2d 74; 13 R. C. L. 929; 2 Wigmore on Evidence, 682; 16 C. J. 618. (4) The court did not err in admitting the bloodhound evidence. State v. Steely, 33 S.W.2d 938; State v. Rasco, 239 Mo. 535; State v. Barnes, 289 S.W. 562; State v. Johnson, 252 S.W. 623; State v. Pollnow, 14 S.W.2d 574; State v. Loahmann, 58 S.W.2d 309; State v. Burgess, 193 S.W. 821; 16 C. J. 564. (5) The court did not err in refusing to permit the appellant to introduce in evidence and read to the jury the reported case of State v. Freyer, decided by this court. State v. Freyer, 48 S.W.2d 894. (6) The court did not err in ruling upon the introduction of the evidence of Armada Wood. State v. Johnson, 252 S.W. 625; State v. Loahmann, 58 S.W.2d 309; State v. Burgess, 193 S.W. 821; State v. Pollnow, 14 S.W.2d 574. (7) The court did not err in permitting the introduction of the testimony of the witness Willett to the effect that the stains on appellant's overalls were that of human blood. State v. Ilgenfritz, 263 Mo. 629. (8) The court did not err in refusing a new trial on the ground that the verdict was the result of passion and prejudice on the part of the jury. State v. Batey, 62 S.W.2d 452; State v. Wampler, 68 S.W.2d 266; State v. Jenkins, 37 S.W.2d 433. (9) The court did not err in refusing a new trial or in its ruling on the alleged improper argument of the prosecuting attorney. State v. Messino, 30 S.W.2d 763; State v. Bundy, 44 S.W.2d 124; State v. Mathis, 18 S.W.2d 8; State v. Lynn, 23 S.W.2d 139; State v. Nichols, 39 S.W.2d 777.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant was charged, by an information filed in the Circuit Court of Knox County, Missouri, with the crime of murder in the first degree. The first trial of the case resulted in a hung jury. The second trial resulted in the conviction of appellant of murder in the second degree with a punishment of thirty years' imprisonment in the penitentiary. He duly appealed from the sentence imposed.

Appellant and his wife lived on a farm located on the north side of an east and west road a few miles south of Hurdland, Knox County, Missouri. The deceased, Fay Oliver, lived with his wife and children about one-eighth of a mile east of appellant on the south side of the east and west road. On the afternoon of May 12, 1932, deceased was ploughing with the aid of a tractor in a field on the south side of the east and west road and about one-eighth of a mile west of appellant's home. When deceased failed to return home at the expected hour his wife became alarmed, fearing something might have happened to him while ploughing with the tractor. She, in company with her children, at about six-thirty P. M., walked to the field by way of the road. They found the tractor standing in the roadway, headed east, a short distance from the entrance and about one-eighth of a mile west of appellant's home. The lifeless body of Oliver was lying face downward a short distance west of the tractor near the center of the road. Mrs. Oliver turned the body over and found deceased had been shot. Appellant was arrested that same night and charged with the crime which resulted in his conviction as above stated.

Appellant's motion for a new trial covers forty-two pages of the brief. The transcript of the evidence is voluminous. One of the points most strongly urged for a reversal is that the evidence was insufficient to sustain a conviction. This requires a close examination of the evidence and a full statement of the facts. We will attempt to make this statement as short as possible.

The State relied solely upon circumstantial evidence for a conviction. The evidence in substance is as follows: It disclosed that appellant and deceased had had trouble about six or seven years prior to the homicide. Shortly thereafter deceased and his family moved to Chicago where they resided about four years. A year or so prior to the homicide deceased and his family again took up their residence on the farm in Knox County. The evidence does not disclose any further trouble or quarrels between appellant and the deceased and they were apparently on friendly terms. The evidence disclosed that appellant, a number of years prior to the homicide, possessed a .38-caliber gun. A witness testified of having seen the gun in appellant's possession a few months prior to the homicide. A number of .38-caliber cartridges were found in a bureau drawer in appellant's home. A witness testified with reference to a threat made by appellant against deceased. The evidence as to this threat was rather meager and uncertain. On the evening of the homicide, after Mrs. Oliver had reported that her husband had been shot, a large number of people went to the scene of the murder. Numerous cars were parked both east and west in the public road. The coroner and sheriff were notified. A doctor, who was called, made a limited examination of the body and after the coroner arrived the body was taken...