State v. Martin

• Decision Date: 17 June 1942
• Docket Number: 37894
• Citation: State v. Martin, 162 S.W.2d 847, 349 Mo. 639 (Mo. 1942)
• Parties: The State v. Henry Martin, Appellant
• Court: Missouri Supreme Court

162 S.W.2d 847

349 Mo. 639

The State v. Henry Martin, Appellant

No. 37894

Supreme Court of Missouri

June 17, 1942

Appeal from Dade Circuit Court; Hon. Thomas W. Martin Judge.

Affirmed.

W S. Pelts for appellant.

(1) The rule in criminal cases unqualifiedly is that the burden of proof never rests on the accused to show his innocence or disapprove the facts necessary to establish the crime with which he is charged. 234 Mo. 580; 253 Mo. 487; 39 S.W.2d 794. (2) The rod should not have been admitted or offered as evidence in this case for the reason that it was too remote from the accident as to time and place. 67 S.W.2d 58. (3) The whisky bottle should not have been introduced in evidence. 67 S.W.2d 58.

Roy McKittrick, Attorney General, and B. Richards Creech, Assistant Attorney General, for respondent.

(1) The information is in proper form, is sufficient and contains every element to charge murder in the second degree. Secs 4376, 4377, R. S. 1939; State v. Kenyon, 126 S.W.2d 245; Ex parte Keet, 286 S.W. 463; State v. Burns, 99 Mo. 471. (2) The verdict is in proper form and is responsive in the charge in the information and to the evidence and laws as submitted to the jury. State v. Geyger, 253 S.W. 363; State v. Hyatt, 71 S.W.2d 711; State v. Huddleston, 123 S.W.2d 183. (3) The judgment and sentence is in proper form and fully complies with Sections 4100, 4101 and 4102, R. S. Mo. 1939. (4) Assignment Number One, to-wit, "The verdict of the jury is against the evidence and there is no substantial evidence to support the verdict," is too general -- at least the first part thereof; the latter part will be taken up under Point VII, infra. State v. Shepard, 67 S.W.2d 91; State v. Keller, 104 S.W.2d 247; Sec. 4125, R. S. 1939. (5) Assignment Number Two, to-wit, "The verdict of the jury is against the law under the evidence." This is too general. State v. Carroll, 62 S.W.2d 863. (6) The court did not err in refusing to direct a verdict for defendant at the close of the State's case. State v. Barr, 336 Mo. 300. (7) The court did not err in refusing defendant's demurrer at the close of all the evidence. State v. Gillman, 146 S.W.2d 148; State v. Ashbrook, 11 S.W.2d 1036; State v. Shawley, 67 S.W.2d 74. (8) The trial court did not commit error in admitting State's Exhibit B, to-wit, an iron bar, in evidence. State v. Ball, 321 Mo. 1171; State v. Pepe, 46 S.W.2d 862; State v. Richetti, 119 S.W.2d 330; People v. Green, 87 P.2d 821; State v. Gartrell, 171 Mo. 492, 71 S.W. 1045; State v. Reeves, 195 S.W. 1027; State v. Payne, 56 S.W.2d 116. (9) The trial court did not commit error in admitting State's Exhibit D, to-wit, a part of a half-pint bottle of whisky. State v. Larkin and Harris, 250 Mo. 221; State v. Davis, 143 S.W.2d 244. (10) The court did not err in giving instruction number six for the reason that instruction number six was a proper declaration of law and did not conflict with Instruction d. State v. Crowley, 139 S.W.2d 473; State v. Markel, 77 S.W.2d 112; State v. Coff, 267 Mo. 14; State v. Reagan, 108 S.W.2d 391. (11) Assignment number eight is not well taken. State v. Rodgers, 102 S.W.2d 566. (12) Instruction 3 was a proper instruction and properly referred to the defense of the defendant as defined in Instruction 6, and Instruction 3 did not conflict with Instruction D. Therefore, Assignment 9 is not well taken. State v. Busch, 119 S.W.2d 265; State v. Slush, 301 S.W. 285, 256 S.W. 817; State v. Glass, 318 Mo. 611, 200 S.W. 691. (13) The jury was not allowed to separate. Therefore, Assignment Number 10 is not well taken. State v. Shawley, 67 S.W.2d 74. (14) Appellant's contention that the jury was guilty of misconduct in that they resorted to information outside of the record is too general. State v. Page, 212 Mo. 224. (15) The question of a new trial upon ground of newly discovered evidence rests in the sole discretion of the trial court. Brown Shoe Co. v. Bess, 110 S.W.2d 1139; Fischman v. Schultz, 55 S.W.2d 313.

OPINION

Ellison, J.

The appellant, Henry Martin, was convicted in the circuit court of Dade County of murder in the second degree and his punishment assessed at ten years' imprisonment in the penitentiary, for killing Alva Shaw. His son, Marvin Martin, was jointly charged and prosecuted for the same offense, but acquitted by the jury. The State's case was based largely on circumstantial evidence. The reviewable assignments of error on this appeal are: that there was no substantial evidence to support the verdict; incompetent evidence was admitted; certain of the State's instructions were erroneous; the jury was guilty of misconduct; and appellant was entitled to another trial because of newly discovered evidence.

On the facts, the general theory of the State was that the appellant had become enraged at the deceased Shaw because of the latter's alleged liaison with his wife; and that with the aid of his son, Marvin, he enticed Shaw into the son's automobile, and drove to the outskirts of Greenfield where he struck Shaw on the head with an iron bar, causing his death almost instantaneously. The defense was that appellant knew nothing of Shaw's alleged intimacy with his wife; that he sought Shaw on the occasion mentioned for the purpose of discussing a trip to Fort Leonard Wood, which they contemplated making to obtain work on certain government projects; that he and his son had no iron bar in the automobile at the time; and that Shaw for some inexplicable reason suddenly opened the back door of the automobile and leaped or fell out, striking his head on the hard gravel road and causing his death.

First, with reference to Shaw's attention to Mrs. Martin, the appellant's knowledge thereof, and his actions thereafter. Herbert "Peach" Henry, an automobile mechanic testified that on February 7, 1941, in Greenfield, Shaw employed him to go to a point twelve miles in the country and fix his automobile, which had broken down. On arrival at the spot he found the appellant's wife in the car. The witness did not know Mrs. Martin at the time, but she was pointed out to him the next day, and he identified her at the trial. About 9 or 10 o'clock a.m. on that next day, February 8, which was the date of the alleged homicide, the appellant, with the assistance of a boy named Spencer Proctor whom he paid for the service, sought out Henry in the basement of the court house, for the stated purpose of having some automobile repairing done. Henry had not known appellant even by sight prior to that occasion, but joined him in drinking about one-fourth pint of whiskey each. Then appellant asked him if he had fixed Shaw's car in the country the day before, and whether Shaw was accompanied by a woman wearing a green coat and black hat. The witness answered affirmatively but did not tell appellant the woman was his wife -- in fact did not know it until later that day. Appellant never did have the automobile work done.

To finish this part of the story, both the Proctor boy and the appellant generally corroborated the witness Henry as to the occurrence of the above incident, the appellant admitting he asked Henry if the woman in Shaw's automobile wore a green coat and a black hat. But he declared Henry answered that he didn't know; and further explained he put the question to Henry in that form because his wife's sister had a green coat and black hat, and since Shaw had been trying to keep company with the sister he thought she might have been the woman with Shaw. His wife's coat, he said, was light blue. On cross-examination he denied his wife was wearing a green coat and black hat at the coroner's inquest over Shaw's body five or six hours after his death. Sheriff Johnson testified the wife was so attired at the inquest; that he talked to her for a considerable period of time that night and noted the above fact because he had heard the woman with Shaw the day before was similarly dressed. Sergeant Viets of the Highway Patrol and Charley Meyers corroborated the sheriff on this issue. The wife's sister, Miss Iva Phipps testified she owned a green coat and black hat at the time. But she said she did not know whether the wife, Mrs. Martin, owned or wore such clothing on that day; and she did not testify she was the one with Shaw instead of Mrs. Martin. Appellant's wife did not testify, doubtless under the privilege accorded by Secs. 4081 and 4082, R. S. 1939; Mo. R. S. A., secs. 4081, 4082. The defense impeached witness Henry by showing he had been convicted of petit larceny.

Remembering the conversation between appellant and witness Henry occurred about 9 or 10 a.m. on February 8, there was testimony from twelve other witnesses tracing appellant's movements in Greenfield and the neighboring country during the morning and afternoon of that day. Some of this testimony showed appellant was drinking and looking for Shaw, and in two or three instances inquiring about the previous day's automobile incident implicating his wife and Shaw. Much of this testimony was not disputed. Early that morning he consulted a lawyer, Gordon Weir, about bringing a law suit but the court excluded testimony as to the nature thereof because it was privileged. He talked to Herman Grisham and his son Raymond, who had brought Shaw to Greenfield the day before, after Shaw's automobile broke down. Herman Grisham informed appellant he had heard a woman was with Shaw on that occasion. Later in Greenfield appellant approached the son, Raymond Grisham; declared he was a "square shooter;" that he wanted "to know the facts about this;" and inquired if Raymond and his father had brought Shaw to town the day before, and whether they saw anybody with him.

About 11:15 a.m. at the telephone office in Greenfield appellant placed a call for his son the co-defendant ...