State v. Mayberry
| Decision Date | 08 November 1954 |
| Docket Number | No. 1,No. 44087,44087,1 |
| Citation | 272 S.W.2d 236 |
| Parties | STATE of Missouri, Respondent, v. Delmar MAYBERRY, Appellant |
| Court | Missouri Supreme Court |
Robert A. McIlrath, Flat River, for appellant.
John M. Dalton, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.
Defendant killed Charles Talley in Frankclay, St. Francois County on the 23rd day of May, 1948, by stabbing him with a knife. He was charged with murder in the first degree and the cause went on change of venue to the Circuit Court of Bollinger County, where defendant was convicted of murder in the second degree and his punishment assessed at 25 years imprisonment in the state penitentiary. He has appealed, but has not favored us with a brief. It is, nevertheless, our duty to examine the record and, in doing so, we must look to the assignments in defendant's motion for a new trial for his assignments of error, and consider such of them as are sufficient under Sup.Ct. Rule 27.20, 42 V.A.M.S., Section 547.030 RSMo 1949, V.A.M.S., to preserve anything for appellate review. Sup.Ct. Rule 28.02, Section 547.270 RSMo 1949, V.A.M.S.; State v. McCormack, Mo.Sup., 263 S.W.2d 344, 345. The motion contains 23 assignments covering numerous matters, such as the admission of evidence, the rejection of evidence, the conduct of the trial, the giving of instructions and the alleged improper argument of counsel for the state. There is no contention that the evidence was not sufficient to sustain the conviction of murder in the second degree.
This is the second appeal by this defendant. A prior judgment of conviction of murder in the second degree and a sentence of 55 years imprisonment in the state penitentiary was reversed and the cause remanded for a new trial. State v. Mayberry, 360 Mo. 35, 226 S.W.2d 725. Reference is had to the statement of facts in the opinion in that case for the relationship of the parties, the surrounding facts and circumstances and a review of the evidence tending to support defendant's theory of defense. Substantially the same facts as reviewed in that opinion appear in this record and they will not be further reviewed. Only a brief additional statement of the state's evidence concerning the actual commission of the offense is required, together with a statement of certain other facts and circumstances
The record indicates that defendant was jealous of Talley (the deceased) and was suspicious of the relations between him and defendant's wife. Defendant thought deceased 'was messing around with her' and defendant was further suspicious of the reasons for her sudden trip to Frankclay only a few days before the occasion in question and of her failure to return to her home in St. Louis on Saturday evening before the difficulty on Sunday. The ground for these suspicions clearly appears from the testimony of defendant and his wife and certain corroborating evidence developed by the cross-examination of certain witnesses for the state.
The state's evidence tended to show that defendant came to the home of his stepdaughter, Pauline Gilliam, in Frankclay between 9 and 10 p. m., Sunday, May 23 1948, after all members of the household had retired. He opened the front door, stepped in the living room, turned on the electric light and saw and spoke to his wife who was sleeping on a cot in the living room. He said: 'I warned you, God damn you.' The light in the living room aroused defendant's stepdaughter, who was sleeping with her husband in the adjacent bedroom to the west. There was a six foot archway between the two rooms. The stepdaughter saw defendant go immediately to the kitchen to the north of the living room, where he turned on the kitchen light and then opened the drapes covering the doorway between the kitchen and the bedroom to the west in which Talley, Pauline's father and the former husband of defendant's wife, was sleeping. When defendant entered Talley's bedroom, he had an open knife in his hand. Talley was in bed, with his head to the west, lying on his left side, facing the north wall, with the bed covers over him. Without saying a word, defendant proceeded to the bed and stabbed him. Pauline testified: Talley had turned over and started to raise up when the stabbing began. Talley died a few minutes later of various stab wounds over his body, particularly over the chest and abdomen. Defendant then went outside and awaited the arrival of members of the Highway Patrol. Deceased's body was found in the opening between the kitchen and living room.
When two patrolmen arrived in a patrol automobile, defendant approached and said: Defendant then handed to the patrolmen a pocket knife which had blood on both blades. Defendant at their direction then took a seat in the patrol car. After defendant was seated in the front seat of the car he was talking to some men on the outside, and Sergeant A. G. White heard him 'tell some of them that were standing beside the car that he had killed Talley and he stated he went inside the house and Talley was in bed and he stabbed Talley in the stomach before Talley could get the covers off of the bed, and after Telley got up he cut him several more times.' While still seated in the patrol car, defendant told his story to Trooper H. H. Barr. He said,
A blanket and a comfort, which a patrolman testified he found on the floor in the center of Talley's bedroom were in evidence and the testimony shows that there were a number of cuts and holes in the blanket, one in the middle of it, and there were several holes in the comfort, 'one hole going clear through the comfort and it had blood on it' and there were also several cuts on the side of the comfort. Other facts will be stated in the course of the opinion.
Defendant's first assignment in his motion for a new trial is that the court erred in refusing to allow James Mayberry, defendant's brother, to testify in rebuttal that he made a statement, 'why did you kill the dog and let the bitch go.' Defendant offered to show that James Mayberry made such a statement to defendant and others at the time defendant was seated in the automobile after his arrest. There is no evidence tending to show that defendant had made any such statement to anyone. The evidence referred to, which was offered and excluded, was not in rebuttal of any of the state's evidence. It was immaterial, irrelevant and wholly incompetent for any purpose and was properly excluded. defendant testified that the made no statements 'at all' to Trooper Barr or Sergeant White and that he had not said in their presence that he had no more regret than if he had killed a dog.
Assignment No. 2 is that the court erred in allowing Guy Gilliam to testify that Talley 'was paying board' as it was immaterial and was used to try to prove that the deceased had a right to be there. The evidence showed that Talley was married, and had separated from his second wife, but was not divorced. He was employed by the St. Joe Lead Company and had been living in his daughter's home for five weeks. Over defendant's objection that, 'that wouldn't make one bit of difference', the court permitted a showing that Talley was paying board to his son-in-law in the sum of ten dollars per week. The evidence was competent as explaining deceased's presence in the home on a theory other than his relationship with defendant's wife. The objection did not indicate that the evidence objected to was prejudicial for any reason, but only that it was immaterial. Rulings on objections to the admission of evidence will not, on appeal, be held erroneous for reasons other than those given at the trial. State v. McCord, 237 Mo. 242, 245, 140 S.W. 885. The mere admission of immaterial evidence does not indicate prejudice, and none appears from the admission of this evidence. Only prejudicial error is reversible error. State v. Rohman, Mo.Sup., 261 S.W.2d 69, 72.
Assignment No. 3 is that the court erred in allowing the testimony of Sergeant White and Trooper Barr as to statements made by the defendant while he was under arrest and when he had not been notified of his constitutional rights. There was no objection to the testimony of Sergeant White concerning defendant's statements to some persons outside the automobile, that is, until after it had been given and several additional questions had been asked and answered, then a motion to strike for the reason stated was made and overruled. No timely objection had been made. The witness had previously testified before the court, in the absence of the jury, that the statements of the defendant were not in response to any questioning by either officer. Trooper Barr testified that, after defendant said, 'here I am, I killed him', and defendant had handed him the knife and said 'that's what I killed him with', witness told defendant to...
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