State v. Lyle

• Decision Date: 09 October 1944
• Docket Number: 39020
• Parties: State v. Everett C. Lyle, Appellant
• Court: Missouri Supreme Court

182 S.W.2d 530

353 Mo. 386

State v. Everett C. Lyle, Appellant

No. 39020

Supreme Court of Missouri

October 9, 1944

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge.

Affirmed.

Thomas S. Denny, Clark, Boggs, Peterson & Becker and William L. Nelson, Jr., for appellant.

(1) The evidence in the record does not support the verdict and judgment of murder in the first degree because there was a total failure of proof of deliberation and premeditation required by the statute to constitute murder in the first degree. Sec. 4376, R.S. 1939; State v. Foster, 61 Mo. 549; State v. Eaton, 154 S.W.2d 767; State v. McCracken, 341 Mo. 697, 108 S.W.2d 372; State v Cade, 326 Mo. 1132, 34 S.W.2d 82. (2) The uncorroborated confession of the accused alone is insufficient to support a conviction. State v. Hawkins, 165 S.W.2d 644; State v. Miller, 346 Mo. 846, 143 S.W.2d 241; State v. Snow, 293 Mo. 143, 238 S.W. 1069; State v. McCracken, 341 Mo. 697, 108 S.W.2d 372; State v Cade, 326 Mo. 1132, 34 S.W.2d 82; State v. Eaton, 154 S.W.2d 767. (3) Even if the uncorroborated statements of appellant could be considered in determining the existence of premeditation and cold blood, they are insufficient to establish this essential element of murder in the first degree. Robinson v. State, 12 Mo. 592; State v. Hawkins, 165 S.W.2d 644; State v. Lease, 124 S.W.2d 1084; State v. Forter, 61 Mo. 549. (4) The court erred in giving on behalf of the state Instruction D (1) which instruction the jury that in passing upon defendant's guilt or innocence they might consider the evidence in this case touching the previous good character of the appellant, because there was no such evidence, the good character of appellant was never placed in issue, and the instruction prejudiced appellant before the jury. State v. Williams, 337 Mo. 884, 87 S.W.2d 175.

Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.

(1) The evidence was sufficient to support a verdict of murder in the first degree and there was the necessary proof of deliberation. State v. Cade, 326 Mo. 1132, 34 S.W.2d 82; State v. McCracken, 341 Mo. 697, 108 S.W.2d 372. (2) The court did not err in giving an instruction on murder in the first degree. See authorities under Points (1) and (3). (3) The court did not err, as complained of in appellant's assignment of error, in (a) refusing to sustain appellant's demurrer to the evidence at the close of the state's evidence, and (b) refusing to sustain appellant's demurrer at the close of the case. State v. Crunkleton, 278 S.W. 982; State v. Bigley, 247 S.W. 169; State v. Decker, 326 Mo. 946, 33 S.W.2d 958; State v. Willhite, 159 S.W.2d 768; West Digest, Criminal Law, Key No. 901; State v. Cade, 326 Mo. 1132, 34 S.W.2d 82; State v. McCracken, 341 Mo. 697, 108 S.W.2d 372. (4) The court did not err in giving an instruction on the question of the good character of the defendant as complained of in assignment No. 5 of appellant's motion for new trial. Section 4070, R.S. 1939; State v. Turner, 246 Mo. 598, 152 S.W. 448; State v. Hulbert, 299 Mo. 572, 253 S.W. 764. (5) Assignments of error in the motion for new trial not briefed by appellant will not be considered on appeal. State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Goffstein, 342 Mo. 499, 116 S.W.2d 65; State v. West, 346 Mo. 563, 142 S.W.2d 468; West Digest, Criminal Law, Key No. 1178.

OPINION

Tipton, J.

An information was filed in the circuit court of Howard County, Missouri, in which the appellant was charged with first degree murder for the shooting and killing of his wife. The venue in the cause was changed to the circuit court of Boone County, Missouri, and the trial resulted in convicting the appellant of first degree murder.

The appellant's first assignment of error is that the evidence is insufficient to support a judgment of first degree murder because there is a total failure of proof of deliberation and premeditation. This will require a review of the evidence, which showed the following facts.

We adopt the following statement of facts from the respondent's brief which accurately follows the testimony:

"The evidence shows that the appellant killed his wife at their farm home in Howard County on July 19, 1943, after he had returned from Boonville, Franklin and Fayette, with one John Palmer, Constable of Moniteau Township of that county. According to John Palmer's testimony he and the appellant had been drinking beer at various places and returned to appellant's home with some salt, window panes, and other things, which had been purchased that day. As soon as the two arrived at appellant's home a fuss started between the appellant and his wife and he accused her of infidelity, which she denied, and he called her a liar, and, apparently, threatened to strike her, and was admonished by Palmer, after which the appellant went into the house and the deceased followed him, however not into the house.

"Witness Palmer heard the gun shot and ran around, and appellant's wife was laying at the foot of the steps and appellant was close to her with the gun. He stated that appellant waved the gun at him and told him 'Get back, get back.' Witness Palmer went to a neighbor, Mr. Frink, and upon their return the appellant said: 'I have done just what I intended to do.'

"L. C. Robinson testified that he lived close to defendant Lyle and that on the evening of July 19, 1943, defendant came to his house and he said to defendant, 'How do you feel, Mr. Lyle?' and defendant said, 'I don't feel so good, see? I shot my wife.' Witness stated that he replied, 'Oh, pshaw, -- did you kill her?' and that defendant said: 'I cut her pretty deep' and witness said, 'Did you hurt her very bad?' and he repeated, 'I cut her pretty deep.' And that appellant said: 'I want you to go over there in the morning and turn the calf out to the cow,' and turned around and walked off.

"R. L. Farmer, Sheriff of Howard County testified that he was called on the night of July 19, 1943, and went to the home of defendant Lyle, and found the body of Mrs. Lyle laying on the bed and that he was shown where the gun was, and stated that they found an empty shell in the corner of the room near the front door. Witness stated that he heard the appellant say to Mr. Ashcraft: 'Kerman, I have done an awful thing, -- I have shot my wife.' That the appellant was talking rather loud and was excited and that he got up and looked at his wife lying on the bed, and said he didn't mind seeing her lying that way at all, but seeing anybody else like that would have bothered him, but seeing her there, dead, didn't bother him at all, and he showed us where he shot her, or where she fell. Witness stated that he pointed to a flower mound northeast from the door and said he was standing there, and that there was a little puddle of blood right near the front door steps where she fell and bled. Witness testified that it was about 20 feet from the flower bed to the puddle of blood. He also testified that he talked at a later time with the appellant in the jail and told him that he was charged with first degree murder and informed him that the charge was determined to some extent by the remarks he made after he shot her, and that appellant said, 'Oh, yes, I did tell the patrolman last night that I would have shot her two years ago if I had caught her, but she run down the hill and I could not catch her.' Witness stated that he examined the wound on the body of the deceased, Carrie Lyle and the wound was just below the right shoulder blade, in the back; that the hole was about an inch and a half or two inches in diameter in the back, and there were a few scattering shot off to the side; that some shot that hit over on the other shoulder indicated that he wasn't standing squarely behind her but off sideways and that the pattern of the shot in the back was about eight inches.

"A shot gun was introduced in evidence, with which the defendant stated he killed the deceased according to the testimony of Sheriff Farmer. (There was no testimony that there were powder burns on the deceased's body.) Witness stated that he smelled alcohol on the breath of appellant that evening and that the appellant said 'You guys think I am crazy, but I am not. I know what I am doing.'

"K. W. Ashcraft testified that he had been Sheriff of Howard County the preceding term and was at the time Deputy Sheriff of that county; that he went to the home of appellant Lyle that evening and Lyle told him that he had shot his wife and that she was dead; that he observed a puddle of blood out by the steps where Lyle said he had shot his wife. Witness testified as to the wound in the deceased's back, stating that the appellant said that he and his wife had gotten into a fuss and he had got hold of the shotgun some way and he didn't know how he did it, and he said he just shot her, and that he said that after he shot her he picked her up and helped her in and put her on the bed and that later he got the baby out of the crib and took it and laid it on the bed beside of her. Witness stated that appellant at the time said that it hurt him to look at a dead person, but it didn't hurt him at all to look at her there, that he would have killed her about two years ago if she had not run and got away from him -- down a hill. Witness testified that appellant said, 'Maybe you fellows think I am drunk or crazy, but I know as well what I am doing as you do,' and that appellant talked quite a bit; that after appellant's mother got there that he heard the appellant say that he had killed her and that he should be sorry, but he wasn't."

Other witnesses testified to a similar state of facts. The appellant's testimony tended to show that the killing was the...