State v. Murphy

• Decision Date: 04 January 1936
• Docket Number: 34019
• Citation: 90 S.W.2d 103,338 Mo. 291
• Parties: The State v. Mark Murphy, Appellant
• Court: Missouri Supreme Court

90 S.W.2d 103

338 Mo. 291

The State v. Mark Murphy, Appellant

No. 34019

Supreme Court of Missouri

January 4, 1936

Appeal from Howard Circuit Court; Hon. A. W. Walker, Judge.

Reversed and remanded.

Bagby & Burton, Edmund Burke and Hunter & Chamier for appellant.

(1) The court erred in refusing to permit defendant's counsel to cross-examine the State's witnesses on the question of defendant's sanity or insanity. (a) A party to a cause civil or criminal, against whom a witness has been called and given some evidence shall be entitled to cross-examine said witness on the entire case. Sec. 1727, R. S. 1929; State v. Roe, 180 S.W. 885; State v. Hersch, 296 S.W 433; State v. O'Connor, 105 Mo. 125; State v. Soper, 49 S.W. 1007, 148 Mo. 217; State v Brady, 87 Mo. 142; State v. Sayers, 58 Mo. 585; Ayers v. Railroad Co., 190 Mo. 235; State v. Martin, 229 Mo. 641. Witness must remain witness of party first calling him throughout trial for all purposes. Vernon v. Rife, 294 S.W. 747, 72 A. L. R. 579. (2) The court erred in excluding competent testimony offered by the defendant tending to establish his defense of insanity and in excluding portions of the opening statement of counsel for defense pertaining to such testimony. State v. Warren, 297 S.W. 401; State v. Porter, 213 Mo. 43, 111 S.W. 529; State v. Morris, 263 Mo. 348, 172 S.W. 603; State v. Speyer, 194 Mo. 471. (a) The court erred in excluding testimony of defendant's lay witnesses descriptive of defendant's appearance and actions and his apparent reaction to the communication of threats made by deceased against defendant. State v. Speyer, 194 Mo. 467; State v. Buchler, 103 Mo. 203; Eyerman v. Sheehan, 52 Mo. 223; Vortriede v. St. Louis Pub. Serv. Co., 58 S.W.2d 493; Kirchof v. United Rys. Co., 155 Mo.App. 83; Fulton v. Met. St. Ry. Co., 125 Mo.App. 247; Partelle v. Railroad Co., 217 Mo. 655; Heinbach v. Heinbach, 274 Mo. 315; State v. Stewart, 274 Mo. 658; State v. Davis, 284 Mo. 702; Benson v. Smith, 38 S.W.2d 750; White v. Met. St. Ry. Co., 132 Mo.App. 348; Bubicek v. Slezak, 69 A. L. R. 1168; 22 C. J. 618. (3) The court erred in admitting incompetent evidence offered by the State. (a) It was error to permit counsel for the State to cross-examine its own witnesses on the question of defendant's sanity and to lead the witness and to permit them to testify concerning defendant's sanity after they had stated that they had no opinion and the evidence showed they did not have proper opportunity to form an opinion concerning defendant's sanity. State v. Culpeper, 238 S.W. 804, 293 Mo. 249. Lay witness on insanity must have had adequate opportunity of observation in judging of capacity. State v. Williamson, 106 Mo. 171. (b) The court erred in permitting the State to ask witnesses for the defendant on cross-examination what their idea of justice in the case was. This invaded the province of the injury. State v. Farrar, 285 S.W. 1003; State v. Schlichter, 263 Mo. 577; State v. Pratt, 121 Mo. 566, 26 S.W. 556; State v. Bowman, 213 S.W. 66, 278 Mo. 492; State v. Davis, 34 S.W.2d 135; State v. Clough, 38 S.W.2d 39, 327 Mo. 700; Garrett v. State, 6 Mo. 1; State v. McCanne, 47 S.W.2d 100.

Roy McKittrick , Attorney General, and Franklin E. Reagan, Assistant Attorney General, for respondent.

(1) Numerous assignments in appellant's motion for new trial as to the exclusion of evidence are without merit. Uncommunicated threats are inadmissible to show insanity. Family financial conditions are inadmissible to show insanity. (2) The trial court did not abuse its discretion in limiting the cross-examination of State's witness in chief relative to the insanity of appellant. Cross-examination rests largely in the trial court's discretion. State v. Loahmann, 58 S.W.2d 309. The appellant in a criminal case is presumed to be sane. State v. Schaefer, 116 Mo. 96; State v. Rose, 271 Mo. 17. The plea of insanity admits the act, not the grade of the crime. State v. Speyer, 207 Mo. 540. The presumption of innocence does not destroy the presumption of sanity. State v. Redemeier, 8 Mo.App. 9. Exclusion of cross-examination as premature, and admission of same evidence thereafter, is not error. State v. Kebler, 228 Mo. 367; State v. Baker, 262 Mo. 689; State v. Harris, 209 Mo. 443. This particular assignment of error has unsuccessfully twice reached this court before. State v. Lewis, 136 Mo. 84. (3) The appellant was not entitled to an instruction on manslaughter. Threats alone are insufficient to reduce murder to manslaughter. State v. Hoard, 102 Mo. 142; State v. Edwards, 203 Mo. 528. In manslaughter, the passion must be uncontrollable. State v. Delbono, 268 S.W. 60; State v. Clough, 38 S.W.2d 38. A person must, at the time he fires the fatal shot, believe that he is in actual danger, and the facts must furnish a reasonable cause for such belief. State v. Clay, 201 Mo. 679; State v. Bongard, 51 S.W.2d 84. (4) The court committed no error in failing to restate the defense of insanity in each of the State's main instructions. Instructions are read together and considered as a whole. State v. Lindsey, 62 S.W.2d 420; State v. DeShon, 68 S.W.2d 805. It is unnecessary to repeat in each instruction the various elements of the defense, State v. Buckner, 72 S.W.2d 73; State v. Hicks, 3 S.W.2d 230; State v. Park, 16 S.W.2d 30.

OPINION

Ellison, J.

The appellant was convicted of murder in the first degree in the Circuit Court of Howard County on change of venue from Randolph County and his punishment assessed at imprisonment in the State penitentiary for life. He killed his brother, Paul Murphy. The homicide was admitted and the sole defense was insanity. The motion for new trial contains fifty-three assignments of error which have been condensed into twenty-two assignments in appellant's brief in this court; but it will be unnecessary to consider most of these since we have concluded that the judgment must be reversed and the cause remanded.

At the time of the homicide the appellant was forty-one years old. He owned and operated a lumber yard, a garage and a hardware store at Higbee in Randolph County, and with his family lived in the second story of the building in which the hardware store was located. Paul Murphy, the deceased, was about thirty-eight years old. He and his two children were living with Mrs. Belle Murphy, mother of the deceased and the appellant, in her home in Higbee. About four-thirty in the morning of Tuesday, July 18, 1933, the appellant drove in his automobile from his home to the home of his mother armed with a pistol and a flashlight and went into the house through the back door. Thence by the aid of his flashlight he proceeded to the bedroom where his brother Paul Murphy lay asleep with his eight-year-old son and fired six shots into his back. Paul was found dead a few minutes later.

The State presented further testimony showing that the appellant had borrowed from a neighbor named Farris three days before the homicide the pistol with which he shot the deceased; and that he returned the weapon within half an hour after the shooting, giving as his reason for getting it that he "wanted a gun he could depend upon." He admitted the killing to other neighbors, and to the officers of the law. To some of these he made the explanation that the deceased Paul Murphy four days earlier had threatened to kill him unless he made a settlement of their affairs arising out of a business relation hereinafter mentioned; and that he had scarcely slept since. The State further produced one expert witness, Dr. Francis Barnes, Jr., of St. Louis, and a number of lay witnesses who expressed the opinion that the appellant was sane at the time of the homicide.

For the defense, the evidence showed that the deceased Paul Murphy had harbored a bitter feeling toward the appellant for about five years arising out of the fact that he had been forced to turn back to the appellant a hardware store at Clark, in Randolph County, which he had previously bought from him. There was testimony that the deceased drank heavily thereafter and gave utterance to numerous threats and expressions of ill will against appellant, all of which were communicated to him by the persons who heard them. In some of these threats the deceased declared he would kill the appellant unless the latter made a settlement with him and paid him a stated sum of money, ten or fifteen thousand dollars.

According to the testimony of Mrs. Belle Murphy, mother of the two brothers, Mrs. Sophia Murphy, the appellant's wife, and two former employees, this strained relation between the deceased and the appellant became crucial on Friday, July 14, four days before the homicide. On the evening of that day the deceased went to the appellant's store, drunk and armed, and demanded $ 10,000 in settlement of his claims, stating he would kill the appellant if the latter did not pay it. For the next three days both during the daytime and at night he stood watch for long periods across the street from the appellant's store and living quarters. Also he climbed into a truck used in making deliveries from the store and declared to the driver, "Well Mark knows what to expect."

By one or another of these same four witnesses it was shown that after the deceased Paul Murphy and his two children moved into the home of the mother at Higbee in April, 1933, there was a great change in the appellant. He became absent-minded forgetful and irritable. The demand and threats made by the deceased on the Friday night before the homicide threw him into a state of extreme nervous agitation. The next day he went to Moberly and consulted the prosecuting attorney who told him he could have the deceased put under peace bond; or confined in an asylum if it could be established that he was...