State v. Lovell
| Decision Date | 20 June 1911 |
| Parties | THE STATE v. STELLA MARTIN LOVELL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. Charles A. Denton, Judge.
Affirmed.
W. O Jackson and Thomas J. Smith for appellant.
(1) The court erred in permitting the defendant to prove by the witness Dr. Chastain that defendant stated to him that she shot deceased by accident, and, then, over the defendant's objection, permitting the witness to testify that the deceased, while the defendant was in the same room said to him, "She knows better than that," and that defendant made no reply at all. The witness admitted that he did not know whether defendant heard the statement of deceased or not. 1 Greenleaf on Ev. (14 Ed.), Sec. 197; State v. Glahn, 97 Mo. 679; State v Mullins, 101 Mo. 517; State v. Murray, 126 Mo. 615; State v. Swisher, 186 Mo. 10. (2) The court erred in permitting the witnesses McGinnis and McManus to testify to alleged conduct and statements made by the defendant prior to the time of the shooting. Such statements being in no sense a threat against the deceased, but prejudicial. State v. Jaeger, 66 Mo. 180. (3) The court erred in permitting the witness Thomas to testify to having seen one Klepper, who is shown to have had charge of the defendant's house after she was arrested, to have in his possession a pistol near the defendant's house on the morning following her arrest; there being no evidence at all that he had been in the house at the time, that he had procured the pistol from the house or that he was there by direction of the defendant, or that the defendant knew of his being there or of his having a pistol in his possession. Even if Klepper had been in a conspiracy with defendant to murder deceased, which is not charged, what he did next day after the shooting, in defendant's absence, was not competent against the defendant. State v. Swain, 68 Mo. 601; State v. Elkins, 101 Mo. 344; State v. Duncan, 64 Mo. 266; State v. Roberts, 201 Mo. 728. (4) The court erred in refusing to permit the defendant to testify as to the conversation had with Chambers at her house on the night of the shooting; said Chambers had testified on behalf of the State as to what the conversation was. The defendant had a right, therefore, to give the whole conversation which occurred at the time. The court also erred in refusing to permit defendant to testify as to the conversation which she had with Babe Card at the jail on the night following the shooting at her house. The State having introduced a part of the conversation, the defendant had a right to have the whole conversation go to the jury. 1 Greenleaf on Ev. secs. 201-202; Best's Prin. of Ev., p. 511; Underhill on Ev., sec. 80; State v. Martin, 28 Mo. 530; State v. Branstetter, 65 Mo. 149; State v. Napier, 65 Mo. 462; State v. Hayes, 78 Mo. 319; State v. Young, 119 Mo. 495. (5) The evidence all shows the deceased was told, prior to the time he made his ante-mortem statement, that the wound was serious and most likely would prove fatal, unless he submitted to an operation. Whereupon he consented to the operation being performed. This statement, not having been made in the belief that death was inevitable and then imminent, was not competent. Greenleaf on Ev. sec. 156; Underhill on Ev. sec. 101; State v. Simon, 50 Mo. 370; State v. Ridder, 90 Mo. 54; State v. Partlow, 90 Mo. 608; State v. Elkins, 101 Mo. 341; State v. Johnson, 118 Mo. 491; State v. Wilson, 121 Mo. 434; State v. Craig, 190 Mo. 641; State v. Kelleher, 201 Mo. 614; People v. Hodgdon, 55 Cal. 73. (6) That part of the ante-mortem statement to the effect that defendant, "without any cause known to him," fired the shots, is not a statement of a fact occuring at the time, but is the conclusion of the witness, and was incompetent in any event and prejudicial. State v. Draper, 65 Mo. 335; State v. Elkins, 101 Mo. 450; State v. Barker, 172 Mo. 202; State v. Horn, 204 Mo. 548.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) Appellant complains as to the action of the court in refusing to permit defendant to testify as to the conversation that she had with Chambers at the jail on the night following the killing at her house. A perusal of the appellant's testimony would show that she was permitted to testify in full as to what happened on the night of the killing and after the killing, as well as to what was said at the jail. No reversible error was committed by this ruling of the court. All the witness could have done was to deny the conversation, and she, in effect, had done that. The court permitted the appellant to cross-examine witnesses McManus and Winn. State v. Branstetter, 65 Mo. 156; State v. White, 189 Mo. 339. (2) The rule that admits dying declarations and ante-mortem statements is that they are declarations made in extremity when the parties are at the point of death and every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced to speak the truth. The form of a dying declaration is immaterial so that it clearly shows that it was made under a sense of impending dissolution. State v. Nocton, 121 Mo. 550. It is the impression of almost immediate dissolution and the rapid succession of death in point of fact that renders the testimony admissible. 1 Greenleaf on Ev. sec. 158; 3 Russell on Crimes (9 Am. Ed.), 250; 9 Am. & Eng. Ency. Law, 108; State v. Bowles, 146 Mo. 6; State v. Craig, 190 Mo. 338. After the consideration of all the evidence in this case with reference to the condition of the deceased at the time he made the ante-mortem statement, the court can arrive at no conclusion other than that the deceased made the ante-mortem statement under a belief of impending dissolution, and after he had abandoned all hope of recovery. This seems to be the rule under which this sort of evidence is admitted. State v. Elkins, 101 Mo. 350; State v. Colvin, 226 Mo. 488. The fact that the deceased did not die for some little time after his formal dying declaration had been written and signed does not effect its admissibility, if at the time of making it he believed that death was impending. State v. Hendricks, 172 Mo. 654; State v. Parker, 172 Mo. 203; State v. Vaughn, 152 Mo. 73; State v. Sexton, 147 Mo. 89. From the time the deceased was taken back from the appellant's porch and put on the bed he was considered in extremis. The evidence shows that he said he was all in. He soon began to bloat, was exhausted and weak. At the time he made the statement he was advised by his physicians that he could not live, and he knew it. State v. Garth, 164 Mo. 563; State v. Brown, 188 Mo. 451.
Under an information charging her with murder in the first degree for having shot and killed one Duke Benefield 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 ten 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 thirty-three 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 him and the defendant. 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 whiskey 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 ten and eleven 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 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...
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