State v. Murphy

• Decision Date: 17 December 1937
• Docket Number: No. 35370.,35370.
• Citation: 111 S.W.2d 132
• Parties: THE STATE v. MARK MURPHY, Appellant.
• Court: Missouri Supreme Court

111 S.W.2d 132

THE STATE v. MARK MURPHY, Appellant.

No. 35370.

Supreme Court of Missouri.

Division Two, December 17, 1937.

Appeal from Howard Circuit Court. — Hon. W.C. Hughes, Judge.

AFFIRMED.

Don C. Carter for appellant.

(1) "The court erred in refusing to permit counsel for defendant to outline and state to the jury, in the opening statement, the evidence which the defendant intended to offer." Section 3681, R.S. 1929. (2) "The court erred in sustaining repeated objections by counsel for the State, to the opening statement made on behalf of the defendant." Sec. 3681, R.S. 1929. (3) "The court erred in refusing to sustain defendant's motion to discharge the jury, made on the second day of the trial, to the prejudicial and improper remarks of the court in ruling on evidence offered by the defense." State v. Teeter, 239 Mo. 483. (4) "The court erred, during the opening statement by counsel for defendant, in making the statement, viz.: "The theory of the State in the preceding cases has not a thing to do with this case." State v. Murphy, 338 Mo. 291. (5) "The court erred in making the following statement in the presence of the jury: "Evidence of threats of the deceased has not a thing to do with the sanity or insanity of the defendant unless you begin on the date of the shooting and go back and connect it all up." State v. Murphy, 338 Mo. 291. (6) "The court erred in refusing to permit the witness, Davis, to testify that the deceased, Paul Murphy, was an habitual drunkard and had been an habitual drunkard over a period of several years prior to the date of the homicide, July 18, 1933, and that such fact of habitual drunkenness had been communicated to the defendant and had been known by him for some time." State v. Speyer, 194 Mo. 459; State v. Warren, 317 Mo. 843; State v. Murphy, 338 Mo. 291. (7) "The court erred in sustaining the State's objection to defendant's offer in evidence, defendant's Exhibit D, and refusing to permit defendant to read same to the jury." State v. Warren, 317 Mo. 843; State v. Speyer, 194 Mo. 467; State v. Murphy, 338 Mo. 291. (8) "The court erred in sustaining the State's objection to defendant's offer in evidence of defendant's Exhibit E, and refusing to permit defendant to read same to the jury." State v. Speyer, 194 Mo. 467. (9) "The court erred in refusing to reprimand Mr. Reagan, assistant attorney general, for objecting, on five different times, to the hypothetical question propounded to Dr. Bloom by counsel for defendant." State v. Prendible, 165 Mo. 329. (10) "The court erred in refusing to reprimand Mr. Reagan, assistant attorney general, during the examination of the witness, Mrs. Belle Murphy (mother of defendant), and Mrs. Sophia Murphy (wife of defendant), for repeatedly objecting to the statements made by the witnesses while testifying in the case, which statements were characterized by Mr. Reagan, as `stump speeches to the jury.'" State v. Prendible, 165 Mo. 329. (11) "The court erred in refusing to reprimand Mr. Reagan, assistant attorney general, on innumerable occasions throughout the trial, for his manner and conduct and objections made to proper and admissible testimony offered by defendant." State v. Nicholson, 7 S.W. (2d) 375; State v. Dixon, 253 S.W. 748. (12) "The court erred in refusing to reprimand Mr. Pierce, counsel for the State, in his argument and address to the jury, wherein he said, `Don't turn this man loose and send him back to Higbee where we will do the same thing again.'" State v. Taylor, 8 S.W. (2d) 36; State v. Guerringer, 265 Mo. 408; State v. Baldwin, 317 Mo. 413; State v. Wellman, 253 Mo. 302; State v. Dixon, 253 S.W. 748; State v. James, 216 Mo. 294; State v. Nicholson, 7 S.W. (2d) 375. (13) "The court erred in refusing to give defendant's Instruction A, as offered, but gave it in a modified form, by striking out of such instruction the words, `however brutal and atrocious it may have been.'" State v. Redemeier, 8 Mo. App. 1; State v. Redemeier, 71 Mo. 173. (14) "The court erred in giving Instruction 6, on the part of the State, relating to murder in the second degree." State v. Barbata, 336 Mo. 368; Baldwin v. The State, 12 Mo. 223; State v. Erb, 74 Mo. 199; State v. Kotovsky, 11 Mo. App. 584; State v. Kotovsky, 74 Mo. 245; State v. Deustrow, 137 Mo. 44; State v. Holloway, 156 Mo. 231; State v. Speyer, 182 Mo. 77; State v. Paulsgrove, 203 Mo. 204; State v. Bobbst, 269 Mo. 214; State v. Turlington, 102 Mo. 660; State v. Henderson, 186 Mo. 487; State v. Niehaus, 188 Mo. 324; State v. Feeley, 194 Mo. 324; State v. Mahly, 68 Mo. 315; State v. Stoecki, 71 Mo. 559; State v. Wooley, 215 Mo. 620; Secs. 3734, 3681, R.S. 1929; State v. Todd, 194 Mo. 394; State v. West, 202 Mo. 128; State v. Bobbitt, 215 Mo. 38; Secs. 3563, 4451, R.S. 1929. State v. Weagley, 286 Mo. 677. (15) "The court erred in refusing to instruct the jury on all the law arising in the case, which was necessary for their information in giving their verdict, as provided by Section 3681, Revised Statutes 1929, in this, to-wit: The court failed to instruct the jury on motive." Section 3681, R.S. 1929; State v. Paulsgrove, 203 Mo. 193; State v. Santino, 186 S.W. 977.

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

(1) The record is insufficient to sustain point 1 of the appellant's motion for new trial relative to the exclusion in the opening statement of any reference to the deceased as a gang leader. The record does not sustain this assignment, and the motion for new trial does not prove itself. State v. Yowell, 331 Mo. 716, 55 S.W. (2d) 991. (2) The record does not sustain point 2 of appellant's motion for new trial in which the court was charged with excluding communicated threats on the life of defendant, and of becoming so prejudicial in its rulings as to harass counsel. (3) The court committed no error in overruling appellant's motion for discharging the jury. The record does not show prejudicial conduct on the part of the court, and is therefore insufficient. State v. Perkins, 92 S.W. (2d) 640. (4) The record is insufficient to show that the court at any time during the opening statement of appellant's counsel, made the following statement: "The theory of the State in the preceding two cases tried, has not a thing to do with this case." (5) The court committed no error in excluding testimony that the deceased was a habitual drunkard. 30 C.J., p. 246, sec. 483. (6) The court properly excluded appellant's Exhibit D, a letter from appellant to deceased three years prior to the homicide, and in excluding Exhibit E being a certified copy of the last will and testament of a grandfather of appellant and deceased. State v. Murphy, 90 S.W. (2d) 103, 338 Mo. 291. (7) No error was committed by counsel for the State, objecting to the form of the hypothetical question propounded to expert witnesses. (8) The court committed no error in failing to reprimand counsel for making objections during the testimony of witnesses Belle Murphy and Sophia Murphy. The State is entitled to make objections, and is required to make such objections specific. State v. White, 253 S.W. 724; State v. Cooper, 271 S.W. 471; State v. Lucas, 293 S.W. 1051. (9) The court committed no error in its rulings on the specific objections made by counsel to voluntary statements of witnesses Belle Murphy and Sophia Murphy. These matters cannot be raised for the first time in a motion for new trial. State v. Glazebrook, 242 S.W. 934. The record does not show the tone of voice or any objection to the tone of voice. State v. Rowe, 24 S.W. (2d) 1032. (10) The court committed no error in giving defendant's Instruction A in the modified form. The instruction properly declared the law after its correction; the only part removed therefrom was the inflammatory language. State v. Fannon, 158 Mo. 155; State v. Starr, 244 Mo. 177. (11) The court committed no error in giving instruction on second degree murder. The appellant is in no position to claim under a conviction of second degree murder that he should have been convicted of first degree murder or acquitted. State v. Barker, 12 S.W. (2d) 432; State v. Allison, 51 S.W. (2d) 51. (12) The court committed no error in failing to instruct on motive. State v. Lynn, 169 Mo. 664; State v. Clinton, 213 S.W. 841, 378 Mo. 344; State v. Hulbert, 253 S.W. 764, 299 Mo. 572.

BOHLING, C.

Mark Murphy appeals from a judgment imposing a sentence of fifteen years' imprisonment for the murder of John Paul Murphy, his brother. The case is here on second appeal [see 338 Mo. 291, 90 S.W. (2d) 103]. The homicide was admitted. The defense was insanity. The instant record discloses the material facts are stated in the opinion of ELLISON, J., on the first appeal. Matters essential to a determination of this review will be set forth in connection with the discussion of specific issues.

Appellant's stated theory was that the conduct and statements of deceased evidencing a bitter feeling toward and threats against appellant, known or made known to appellant, so weighed upon appellant's mind as to cause appellant to become not mentally responsible for his actions at the time of the homicide. A reading of the record shows the trial proceeded upon appellant's theory; and, although the court indicated the better method would be first to establish appellant's knowledge of such matters and then go back that the court might know it would be connected up and proper, we find matters of such nature submitted to the jury not only when it was established that appellant had knowledge or information of the fact but also when it was indicated to the court such knowledge or information would be subsequently established.

[1] The record does not support the following assignments of error because at the time of the ruling appellant's knowledge or information of the specific matter had not been established or disclosed:

The assignment that the court refused to...