State v. Majors

• Decision Date: 01 December 1931
• Docket Number: 31375
• Citation: 44 S.W.2d 163,329 Mo. 148
• Parties: The State v. J. W. Majors, Appellant
• Court: Missouri Supreme Court

44 S.W.2d 163

329 Mo. 148

The State v. J. W. Majors, Appellant

No. 31375

Supreme Court of Missouri

December 1, 1931

Appeal from New Madrid Circuit Court; Hon. John E. Duncan Judge.

Affirmed.

McKay Peal & Corbett and Sharp & Baynes for appellant.

There is no substantial evidence in the record to sustain the verdict of a jury in this case. (1) The State failed to prove the place of death of deceased as alleged in the information and thereby failed to make out its case against the defendant. (2) The court erred in admitting the testimony of the witness T. V. Schoonover as was fully set out and shown by Exhibit A attached to and made a part of the motion for new trial. (3) The court erred in permitting the witness Stephens to testify on behalf of the State that deceased told him she had gone down to Pendergrass's and identified her quilt tops and chickens, for the reason that such statement was not and could not be made a part of the dying declaration and was hearsay evidence. These points deal directly with dying declarations. The testimony of the witness Schoonover found on pages 12 to 15 of the transcript is a statement of what the deceased told him some hours before she was said to have died, as well as the testimony of the witness Sam Stephens. These statements do not constitute a dying declaration and were clearly hearsay testimony. State v. Clift, 285 S.W. 706; State v. Jamerson, 252 S.W. 682; State v. Kyle, 225 S.W. 1012; State v. Peak, 292 Mo. 249, 237 S.W. 466; State v. Hostetter, 222 S.W. 750; State v. Rozell, 225 S.W. 931; State v. Wilks, 278 Mo. 481, 213 S.W. 118. (4) The information is clearly indefinite and uncertain and does not inform the defendant of the nature of the charge he is required to meet.

Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.

(1) The information is sufficient in form and substance. State v. Johnson, 26 S.W.2d 793; State v. Conley, 255 Mo. 185. The use of the word "metal" for "leaden," if any error at all, is trivial and harmless. Sec. 3563, R. S. 1929; State v. Wilson, 34 S.W.2d 101; State v. Webb, 254 Mo. 414. (2) Considering the defendant's evidence alone, it shows that there was an intentional killing with a dangerous and deadly weapon used in a vital spot, which killing the defendant sought to justify on the ground of self-defense. This made a submissible issue of second degree murder or not guilty on the ground of self-defense. The weight of the testimony was for the jury and their finding will not now be disturbed by this court. State v. Gaters, 39 S.W.2d 548; State v. Snow, 238 S.W. 1071. (3) The venue was properly made out; the place of death was an unnecessary averment and one not required to be proved. Sec. 3381, R. S. 1929; State v. Borders, 199 S.W. 182. (4) The testimony of witness T. V. Schoonover was properly admitted as a dying declaration. The deceased's statements which were admitted to the jury referred only to circumstances closely connected and, in fact, a part of the killing. State v. Garrison, 147 Mo. 553; State v. Colvin, 226 Mo. 446; State v. Hostetter, 222 S.W. 753; 2 Michie on Homicide, sec. 214 (2), p. 1072; 1 Greenleaf on Evidence, sec. 156 (a), p. 246; 3 Wigmore on Evidence, sec. 1434, p. 165. (a) Even under the assumption that some of the statements were not part of the res gestae, their admission was not error because not properly objected to. At the trial and in his brief defendant objects to the testimony on the ground of hearsay. He did not object on the ground that they were not a part of the res gestae, or that they were regarding matters anterior to the killing and not immediately connected with it or that they were a narration of past events. If he had in mind that for those reasons the testimony did not come within the dying declaration exception to the hearsay rule he did not give the court the benefit of his reason and, in fact, did nothing more than ambush the court. An indefinite objection or one on the wrong ground, as this court has often held, is the same as no objection. State v. Stewart, 212 S.W. 857; State v. Johnson, 192 S.W. 442; State v. Hall, 231 S.W. 1003; State v. Cooley, 289 S.W. 810; State v. Tipton, 271 S.W. 58; State v. Anderson, 250 S.W. 72. (b) The motion to strike out all the testimony of the witness was too broad. State v. Hilton, 248 Mo. 522; State v. Matkins, 34 S.W.2d 5. (c) Moreover, the assignment in the motion for new trial is insufficient to raise the question here for review. It makes a general objection to the admission of "the testimony of the witness Schoonover as is fully set out and shown by Exhibit 'A' hereto attached and made a part of this motion." The assignment does not specifically point out the part of that testimony objected to, nor does it set out in detail and with particularity the grounds of the objection. State v. Stewart, 212 S.W. 857; State v. Lock, 300 S.W. 698; State v. Harmon, 296 S.W. 399; State v. Standifer, 289 S.W. 856. Furthermore, the reference by the assignment of the motion for new trial to Exhibit A does not make it a part of such assignment. In civil cases a defective pleading cannot be aided by reference to an exhibit. State ex rel. Siegel v. Grimm, 284 S.W. 496. By analogy to that rule an assignment of the motion for new trial should not, by referring to a transcript of the entire testimony of a witness covering a large number of pages and labeled an exhibit, bring the assignment within the rule regarding particularity and definiteness. (5) The verdict is sufficient as to both form and substance. State v. Lloyd, 263 S.W. 212.

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

OPINION

COOLEY

By information filed in the Circuit Court of Pemiscot County defendant was charged with murder in the first degree for shooting and killing his wife. A change of venue was awarded to the Circuit Court of New Madrid County, where the cause was tried, resulting in defendant's conviction of murder in the second degree. He was duly sentenced pursuant to the verdict of the jury to fifteen years' imprisonment in the penitentiary, and has appealed. The State's evidence tended to prove the following:

The shooting occurred at the home of defendant and his wife in Pemiscot County on September 10, 1928. On the afternoon of that day Mrs. Majors was found in her home mortally wounded with two bullet wounds in her abdomen. Either wound would have caused death. There were also some scratches and minor bruises about her neck. She was removed to a neighbor's house, and thence to a hospital, where she died the next morning. Upon discovery of the crime a deputy sheriff was called. He found a trail leading away from defendant's house through a cornfield back of the house, the trail indicating that the person making it had first crawled on hands and knees. The officer followed the tracks of that person to a place where he learned that the defendant had surrendered himself. After taking custody of defendant he asked the latter: "What got the matter with you all?" To which defendant replied: "We fell out about some chickens."

There was evidence tending to prove that some four days prior to the shooting Mrs. Majors had missed some chickens, which defendant said he had sold, and that she and defendant had quarreled about it. He had made some threats against her at that time, but the witness who gave the testimony could not remember what the threats were. There was also testimony from another witness to the effect that about the last of March, 1928, the defendant had tried, unsuccessfully, to procure a gun from the witness "to kill his wife with." Another witness testified that a "short time" before the shooting defendant came to witness's store and "wanted to buy a gun from me." He was not permitted to state what, if anything, defendant said as to why he wanted the gun.

Witness T. V. Schoonover testified to a dying declaration of Mrs. Majors, the foundation for such testimony having first been laid by an examination before the court in the absence of the jury. Mrs. Majors when she made the statement in question was lying on a table, bleeding profusely, and was very weak. She would speak a few words, then pause and close her eyes, then speak again and so continue. She said she would not get well, she would die before morning. After expressing that belief of her impending death she made the statement which was offered as a dying declaration, in substance as follows: That she had gone to a Mr. Rankin's that day and when she returned she found her chickens were gone; that defendant had taken them to Pendergrass's store and she went down there and identified them; that (quoting the witness) "she told him [defendant] she wouldn't put up with that kind of stuff. She put on her dress and got ready to leave and he told her she couldn't leave him in that kind of a mess -- she started to leave, to go out the door, and Majors grabbed her, choked her, kicked her and shot her in the stomach."

That statement was made about 7:30 P. M., on September 10, and Mrs. Majors died before nine o'clock the next morning.

Sam Stephens testified that in a conversation in which she said she could not get well, Mrs. Majors "told me she said she was going to leave him (defendant) and he said he would kill her before he would let her leave him in that mess." Q. What did she next say? A. She said he shot her.

Defendant relied upon self-defense. After giving his age as forty-eight and stating in answer to a question that he shot deceased, he testified in substance as follows: We were fixing to move, I had sold some chickens and she (Mrs. Majors) kept rearing all of the time about the chickens and fussing. We were fixing to move and it was hard times and we needed the money. It was...