State v. Lovell

• Decision Date: 23 May 1911
• Citation: 138 S.W. 523,235 Mo. 343
• Parties: STATE v. LOVELL.
• Court: Missouri Supreme Court

138 S.W. 523

235 Mo. 343

STATE v. LOVELL.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

1. CRIMINAL LAW (§ 407) — EVIDENCE — ADMISSIONS.

Where accused after shooting deceased said that it was an accident, and, upon hearing deceased say that she knew better, accused made no reply, defendant's failure to reply to the statement by deceased was admissible as an implied admission.

2. CRIMINAL LAW (§ 1036)—APPEAL—OBJECTION BELOW—OFFER OF PROOF—NECESSITY.

Where accused failed to make an offer of proof when objection to a question was sustained he cannot complain of the exclusion.

3. CRIMINAL LAW (§ 1044)—APPEAL—OBJECTIONS BELOW—MOTION TO STRIKE OUT—NECESSITY.

Accused, who failed to move to strike out an answer to a question to which an objection had been sustained, cannot urge the answer as ground for reversal.

4. HOMICIDE (§ 158) — EVIDENCE — COMPETENCY.

Where accused claimed that she shot deceased through accident, evidence of a quarrel between them, in which accused used vile and profane language, and threatened to tear down deceased's place of business, was competent, as tending to show that the fatal shot was fired with felonious intent.

5. HOMICIDE (§ 338)—APPEAL—HARMLESS ERROR.

Where accused admitted that she had a pistol, and that she shot deceased, the admission of evidence that one who was in charge of her house after her arrest was seen near there with a pistol on the morning after the homicide was harmless error.

6. CRIMINAL LAW (§ 409)—EVIDENCE—DECLARATION OF ACCUSED—ENTIRE CONVERSATION.

Where a part of a statement made by accused immediately after the homicide was admitted, accused was entitled to prove the entire statement.

7. HOMICIDE (§ 338)—APPEAL—HARMLESS ERROR.

After shooting deceased, accused said that she shot him to kill. That statement and parts of others were admitted in evidence. Accused did not deny that her first statement referred to deceased, but claimed the others did not. She was not allowed to prove the whole of her statements. Held that, while that was error, it was harmless.

8. HOMICIDE (§ 203)—DYING DECLARATIONS— COMPETENCY.

For a dying declaration to be competent, the declarant must have made it knowing that death was impending, and that there was no hope of recovery.

9. HOMICIDE (§ 203)—EVIDENCE—DYING DECLARATIONS —EVIDENCE AS TO THE BELIEF OF DECLARANT.

Evidence held to show that deceased made his dying declaration in the belief that death was impending, and there was no hope of recovery.

10. HOMICIDE (§ 338) — APPEAL — HARMLESS ERROR.

Where accused claimed that she shot deceased by accident, a statement in deceased's dying declaration that the firing was without cause was favorable to her theory of the shooting, and its admission gave no cause for complaint.

Appeal from Circuit Court, Bates County; Chas. A. Denton, Judge.

Stella Martin Lovell was convicted of murder in the second decree, and appeals. Affirmed.

W. O. Jackson and Thos. J. Smith, for appellant. Elliott W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, P. J.

Under an information charging her with murder in the first degree for having shot and killed one Duke Bene-field on the 20th day of December, 1909, appellant was tried in the circuit court of Bates county at the February term, 1910, convicted of murder in the second degree, and her punishment assessed at imprisonment in the penitentiary for a term of 10 years. She appealed to this court.

The evidence for the state tended to show the following facts: At the date of the homicide and for some time prior thereto, the defendant lived alone in a small cottage in the city of Butler; she and her husband having been separated for a number of years. The deceased, an unmarried man about 33 years of age, resided at Rich Hill, where he was employed as a bartender. He had formerly lived in Butler, and while living there, before the defendant and her husband separated, there were frequent clandestine meetings between the defendant and him. The defendant's husband left her on account of the attentions shown her by the deceased, and afterwards instituted a suit for divorce. The divorce suit was still pending at the time of the homicide. After the separation, both while the deceased lived in Butler and after he moved to Rich Hill, he frequently went to the home of the defendant and remained there with her during the night. On December 20, 1909, the deceased was in the city of Butler attending a political convention. Early in the afternoon he sent some beer and whisky to the home of defendant, and notified her that he would be down that evening, and would spend the night with her. He also arranged for an oyster supper at defendant's house that evening, and invited a woman named Nell Golden and a man known as "Dusty" Laster to attend the supper. Early in the evening the deceased, Laster, and Nell Golden went to the defendant's home, taking with them such things as they wished to have prepared for the supper. While the defendant was cooking the supper, during the meal, and later in the evening there was considerable drinking, especially upon the part of the defendant and the deceased. Neither Laster nor Nell Golden drank enough to affect them to any extent, but the defendant and the deceased both became very much intoxicated. In the course of the evening, the defendant and the deceased had several quarrels, but at the time of the shooting of deceased they were not quarreling, and to all appearances had forgotten their differences. Between 10 and 11 o'clock the deceased began to undress and insisted that the defendant go to bed with him. He sat down on the edge of the bed, and continued taking off his clothes. Laster and Nell Golden announced that they were going to leave, and were preparing to take their departure, when the defendant walked to a dresser that was in the room, took a revolver from a drawer, faced the deceased, and discharged the revolver, the bullet striking him in the abdomen, and inflicting a wound from the effects of which he died the following day. The bed on which the deceased was seated at the time he was shot was in the southwest corner of the room. The head of the bed was to the west. The dresser was in the northwest corner of the room. There was also a stove in the room near the north wall and midway between the east and west walls. Just east of the foot of the bed was the door through which Laster and Nell Golden would have passed in leaving the house. Laster was standing by the side of the bed, talking to deceased, while Nell Golden was nearer the door. The bed was directly in front of a window in the south side of the room. When the shot was fired, the deceased and Laster both started toward the defendant. She walked behind the stove and toward the east side of the room. Nell Golden ran to her, reached her before either of the men, grabbed her hand, and pointed the revolver upward. The two women struggled for a moment for the possession of the revolver, when defendant released her grasp of the weapon, and told Nell Golden to take it if she wanted it. In the meantime the two men walked out on the porch, and the women followed them to the porch after Nell Golden took the revolver from the defendant. There was no evidence as to what was done with the revolver at that time. When the women reached the porch, the deceased said he was hurt and Laster and the two women assisted him in walking back into the house and to the bed. Nell Golden called a physician by telephone. The doctor arrived in a few minutes, and shortly thereafter the sheriff came to the house, accompanied by two men. When the physician arrived, he inquired how the deceased had been shot, and the defendant said it was by accident. Thereupon the deceased said, "She knows better than that." To this statement the defendant made no reply. The deceased pointed to Laster and Nell Golden, and said they had nothing to do with it. When the sheriff arrived, he also inquired as to how the deceased had been hurt, and defendant again said it was by accident. She then told the officer to step into the kitchen, and she would tell him all about it. The two went to the kitchen, and the defendant began to relate to the officer the circumstances of the quarrel she had had with the deceased during the evening. By this time so many people were crowding into the house and into the kitchen that the defendant's statement was interrupted, and she did not complete it by any explanation of the events immediately connected with the shooting. The sheriff searched the premises for the revolver, but failed to find it. A hole having the appearance of having been made by a bullet of the same caliber as the revolver with which the deceased was shot was discovered in a pane of glass in the window south of the bed on which deceased was seated when the shot was fired. This hole was two or three feet higher than the deceased's head would have been while he was sitting on the bed. No other bullet marks were found in the room. Nell Golden testified that she thought two shots were fired, but would not say positively that there was more than one. Witnesses living in the neighborhood testified that they heard three shots. The sheriff took the defendant to the county jail, and during the night she was heard to say that she hoped she had killed the "s____ of a b____"; that she hoped he would die before morning. The witnesses who heard these remarks said she did not mention the name of the deceased just at that time, but the evidence tended to show that she made the remarks concerning him.

On the following morning the deceased was taken to his father's home at Rich Hill. The physicians attending him found that the bullet had passed through the upper part of his bladder, and decided upon a surgical operation, which was performed in the afternoon. Just before the operation the deceased made a dying statement, which was signed by him after it had been reduced to...