State v. Painter

• Decision Date: 01 December 1931
• Docket Number: 31358
• Parties: The State v. Virgil Painter, Appellant
• Court: Missouri Supreme Court

44 S.W.2d 79

329 Mo. 314

The State v. Virgil Painter, Appellant

No. 31358

Supreme Court of Missouri

December 1, 1931

Appeal from Taney Circuit Court; Hon. Robert L. Gideon Judge.

Affirmed.

G W. Thornberry, G. Purd Hays and D. F. McConkey for appellant.

(1) It was error for the prosecuting attorney to state in his opening statement to the jury that there would be proof of dying declarations by the deceased, the defendant having objected and the court having sustained the objection, it was further error to state as a fact that there would be a dying declaration and to attempt to state what they were. The court should have more severely reprimanded the prosecuting attorney for such repetition of error. (2) It was error for the prosecuting attorney to tell the jury in his argument that the defendant had taken a change of venue from his own county where the people all knew him and the deceased, and that he would ask this jury to treat a party coming from Stone County under a charge of crime, the same as the citizens of Taney County would expect the citizens of Stone County to treat such cases coming from their county. (3) It was error for the court to admit in evidence testimony that the defendant while in the county jail took carbolic acid with intention of committing suicide. (4) That part of Instruction 10, telling the jury that "the right to defend one's self from danger, not of his own seeking is a right which the law not only concedes, but guarantees to all men," was error, for the reason that it deprived the defendant of any right of self-defense if he sought the difficulty. State v. Sharp, 233 Mo. 292; State v. Gilmore, 95 Mo. 554; State v. Herrill, 97 Mo. 105; State v. Cable, 117 Mo. 380. (5) It was error to tell the jury that the knife was a dangerous and deadly weapon, within the meaning of the law, when such question should have been left to the jury. State v Harper, 69 Mo. 425; State v. McKinzie, 102 Mo. 620; State v. Grant, 152 Mo. 57; State v. Ball, 262 S.W. 34; State v. Hart, 309 Mo. 85; State v. Allister, 317 Mo. 352.

Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.

(1) The remarks of counsel representing the State in saying to the jury, in his opening statement, "I will say that the dying statement --" and in saying to the court, in the presence of the jury in said opening statement, "Would I be allowed to say the dying statement shows that --," did not constitute reversible error. (a) Objections to the remarks were sustained by the court. (b) The evidence was competent if the statements (dying declaration) of Beard had been made under such circumstances as to constitute them dying statements under the law. (c) Evidence was offered for and against the proposition that said statement, or declaration, was made under such circumstances as to constitute it a dying statement. (d) The court in ruling that the statement was inadmissible expressed doubt as to its admissibility and said: "I notice in the statement he makes that he says, 'The doctors say I am in a dying condition,' and he does not in the statement say himself that he is going to die." The court further said, "There is some testimony by the daughter that he told her he was going to die, but that he did not want his sister to know." (e) Under the circumstances, it may be inferred that counsel made the remarks in good faith, thinking that the statement, or dying declaration of Beard, would be held competent by the court and admitted in evidence. State v. Pleake, 177 S.W. 358; State v. Rasco, 239 Mo. 579. Error cannot be predicated upon a sustained objection. State v. Butler, 258 Mo. 437; State v. Miles, 199 Mo. 560; State v. Grant, 144 Mo. 65. Counsel for appellant failed to request a rebuke or to save their exception to the sufficiency of the court's rebuke. State v. Kelley, 284 S.W. 803; State v. Wana, 245 Mo. 563; State v. Harvey, 214 Mo. 411; State v. Harrison, 263 Mo. 662; State v. Rasco, 239 Mo. 579; State v. Topalovacki, 213 S.W. 105; State v. Raftery, 252 Mo. 83. (2) Reversible error was not committed when counsel for the State, in his closing argument to the jury, referred to the fact that defendant had taken a change of venue from his own county. (a) Objection to the remarks were sustained by the court. Error cannot be predicated upon a sustained objection. State v. Butler, 258 Mo. 437; State v. Miles, 199 Mo. 560; State v. Grant, 144 Mo. 65. (b) The court admonished the jury that defendant had a right, under the law, to take a change of venue and it was no evidence of his guilt or innocence for him to do so, and that they should not consider that in passing on the question of defendant's guilt or innocence. (c) This point is not properly preserved for review. The objectionable remarks must be called to the attention of the court and exceptions saved at the time. State v. Pagels, 92 Mo. 311; State v. McDaniel, 94 Mo. 306; State v. Harvey, 214 Mo. 411; State v. Whitsett, 232 Mo. 529; State v. Stegner, 276 Mo. 440. Counsel failed to request a rebuke or to except to the sufficiency of the court's rebuke. State v. Kelley, 284 S.W. 803; State v. Wana, 245 Mo. 563; State v. Harvey, 214 Mo. 411; State v. Harrison, 263 Mo. 662; State v. Rasco, 239 Mo. 579; State v. Topalovacki, 213 S.W. 105; State v. Raftery, 252 Mo. 83. (3) The court did not commit reversible error in admitting testimony that the defendant, while confined in jail after his arrest for the crime charged, took carbolic acid in an attempt to commit suicide. It is a circumstance which may be proven and be taken into consideration by the jury in connection with the other facts and circumstances proven in the case. People v. Duncan, 261 Ill. 352; State v. Jaggers, 71 N. J. L. 282. The conduct and actions of a defendant in a criminal matter may be scrutinized by the court or jury and may be important evidence of guilty knowledge of the commission of a crime. People v. Schumann-Heink (Cal.), 288 P. 841; State v. Steinkraus, 244 Mo. 159; State v. Stevens, 242 Mo. 443; State v. Daly, 210 Mo. 676. (4) The court did not commit error in the giving of Instruction 10. (a) The instruction has been approved and pronounced exceptionally good by the Supreme Court. It clearly declares the law applicable to the facts in this case. State v. Thomas, 78 Mo. 339; State v. Hicks, 92 Mo. 434; State v. Dunn, 221 Mo. 542; State v. Roberts, 280 Mo. 679; State v. Miller, 307 Mo. 373. (b) Defendant killed deceased, after having voluntarily sought or invited the difficulty with the felonious purpose of killing him or doing him some great bodily harm, and there is no testimony in the case tending to show that defendant, in good faith, after voluntarily seeking and entering into the difficulty, withdrew therefrom or abandoned the conflict. State v. Sharp, 233 Mo. 292; State v. Heath, 237 Mo. 266; State v. Hardy, 95 Mo. 457; State v. Roberts, 294 Mo. 297; State v. Underwood, 57 Mo. 50; State v. Harris, 209 Mo. 440; State v. Feely, 194 Mo. 321; State v. Huffman, 220 S.W. 853. (5) The court did not commit reversible error in assuming, in Instructions 3, 4, 5 and 6, that the pocket knife, with which the defendant fatally stabbed the deceased, was a deadly weapon. (a) A pocket knife of such character that defendant, by the use of it, was able to inflict in the back of the deceased a wound of such depth that the bottom of it could not be reached with the doctor's finger, and another wound in the belly of the deceased, five inches in length on the peritoneum surface and four inches in length on the skin surface thereby disemboweling him, of which said wounds deceased died, is a deadly weapon per se. And the court may take judicial notice of the deadly character of such a weapon. Such things as all persons of ordinary intelligence are presumed to know are not required to be proven. State v. Fletcher, 190 S.W. 321; State v. Dunn, 221 Mo. 541; State v. Belfiglio, 232 Mo. 239; State v. Miller, 264 Mo. l. c. 403, 404; State v. Drumm, 156 Mo. 219; State v. Bowles, 146 Mo. 13; State v. Welch, 311 Mo. 489; State v. Eason, 322 Mo. 1250. (b) That a weapon is deadly may be inferred from the fact that it produces death although there is no evidence of its quality or dimensions. State v. Stewart, 278 Mo. 188; State v. Bowles, 146 Mo. 13; State v. Welch, 311 Mo. 489; State v. Eason, 322 Mo. 1250. A gun, sword, knife, pistol, or the like, is a lethal weapon, as a matter of law, when used within striking distance from the person assaulted; and all other weapons are lethal or not, according to their capacity to produce death or great bodily harm in the manner in which they are used. Ballentine's Law Dictionary, citing State v. Godfrey, 17 Ore. 300, 11 Am. St. 830, 20 P. 625.

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

OPINION

COOLEY

Defendant Virgil Painter was charged by information filed in the Circuit Court of Stone County with the crime of murder in the first degree in that he did, at said county, on September 30, 1929, with a knife, a dangerous and deadly weapon, feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, kill and murder one W. H. Beard. Upon the defendant's application a change of venue was awarded to the Circuit Court of Taney County, where the case was tried and on June 11, 1930, the defendant was found guilty of murder in the first degree as charged and his punishment was assessed by the jury at life imprisonment in the penitentiary. From sentence and judgment in accordance with the verdict the defendant has appealed.

The defendant and Beard, the deceased, were neighboring farmers residing in the vicinity of Galena, Stone County. Defendant was about fifty-three years old, Beard several years older. There had been...