State v. Payne

• Decision Date: 31 December 1932
• Citation: 56 S.W.2d 116,331 Mo. 996
• Parties: The State v. James William Payne, Appellant
• Court: Missouri Supreme Court

56 S.W.2d 116

331 Mo. 996

The State v. James William Payne, Appellant

Supreme Court of Missouri

December 31, 1932

Appeal from Andrew Circuit Court; Hon. Guy B. Park, Judge.

Affirmed.

R B. Bridgeman, K. D. Cross and Jno. E. Heffley for appellant.

(1) When there is no substantial evidence to support the verdict the court should sustain the demurrer and the failure to give Instruction A and Instruction B was erroneous on the part of the court. State v. Mahan, 138 Mo. 112; State v Gordon, 199 Mo. 596; State v. Marshal, 47 Mo. 378; State v. Scott, 177 Mo. 673; State v. Pippin, 36 S.W.2d 914. Credibility of the witnesses and the finding of the facts is left entirely to the jury and the only power the court has, is to give the jury the law in the nature of instructions to aid them in finding the facts according to the law. Credibility of the witness is a matter entirely for the jury. State v. Eason, 18 S.W.2d 71; State v. Merrick, 18 S.W.2d 23; State v. Baker, 24 S.W.2d 1039; State v. Dodson, 29 S.W.2d 60; State v. McDaniel, 37 S.W.2d 441. In this case the defendant's defense was entirely disregarded by the court and the court assumed the fact in Instruction 6, that she was hit by a club and did not receive the wound on her head from a cut by climbing through a wire fence. Assumption of fact and comment on the evidence is invading the province of the jury and is improper for the court so to do. State v. Hersh, 296 S.W. 436; State v. Crede, 252 S.W. 682. The court should have presented to the jury the defendant's theory of this case by proper instruction as well as the theory of the State. It could make no difference how improbable the testimony of the defendant might have been. State v. Reed, 154 Mo. 135; State v. Fibstrup, 237 Mo. 273. (2) The admission of the testimony of George E. Gelvin, Sheriff of Holt County, over the objection of defendant. This testimony was neither a dying statement or part of the res gestae, nor did not come within any rule that is an exception to the rule of hearsay evidence. State v. Keller, 100 S.W. 470, 201 Mo. 614; State v. Hendrick, 172 Mo. 674, 73 S.W. 194; State v. Kyle, 225 S.W. 1017; State v. Parker, 172 Mo. 202; State v. Wilkes, 213 S.W. 121; Peoples v. Lawrence, 21 Cal. 368, 16 A. L. R. 420; 1 R. C. L. 534; 10 R. C. L. p. 982. Neither does it come under the rule of dying declarations. State v. Nash, 7 Iowa, 347; 8 R. C. L. 180; State v. Ezell, 103 Ala. 8, 15 So. 818, 129 Cal. 557; Peoples v. Hill, 123 Cal. 571. A complete treatise on this matter can be found in 16 A. L. R. 411. (3) Paragraph three in the motion for a new trial, discloses that the record with reference to the remarks of Mr. Lovan, proper objections and exceptions were taken, and with reference to this phase, "remarks of the prosecuting attorney," the law is fairly well settled. State v. Eason, 18 S.W.2d 76; State v. Scanalon, 273 S.W. 1063; State v. Henderson, 284 S.W. 799; State v. Berkowitz, 29 S.W.2d 150. (4) Homicide. Proof of death. In criminal homicide the corpus delicti consists of the death of a human being and the criminal agency of another as means thereof. State v. Hyde, 234 Mo. 200, 136 S.W. 316. It must be conclusively shown that the wound inflicted was the cause of the death and unless the wound inflicted was the actual cause of the death, the defendant cannot be convicted of murder. 1 Hale 421; Brown v. State, 38 Tex. 482; Kelly on Criminal Law (4 Ed.) sec. 473. (5) Bill of exceptions, 176, par. 5, motion for new trial on the ground of newly discovered evidence. The court abused its discretion in not granting the motion on this paragraph, for the reason that the witness, Mary Forney, whose testimony appears at pages 46-49, bill of exceptions, and Viola Payne, whose testimony appears at pages 13 to 26, bill of exceptions, and in view of the fact that H. M. Dungan was the prosecuting attorney that filed the information, and would testify that different statements were made to him in the investigation of the case than were testified to by the witnesses, Mary Forney and Viola Payne, at the trial. This motion is accompanied by proper affidavits which complies with the law, and said motion should have been sustained. State v. Ray, 53 Mo. 345; State v. Luke, 16 S.W. 242; State v. Nagel, 37 S.W. 821; State v. Haden, 190 S.W. 311; State v. Acreman, 285 S.W. 739.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) Assignment No. 4 in appellant's motion for new trial complains of the action of the trial court in permitting witness Gelvin to relate a conversation with the defendant. (a) Statements of a defendant when arrested on a charge of committing crime are always admissible against him. State v. Daly, 210 Mo. 664; State v. Wilkins, 221 Mo. 448; State v. Prunty, 276 Mo. 359; State v. Turner, 274 S.W. 35. (b) The statements of the witness in this case were properly admitted. 22 C. J. 206; Rose v. State, 144 Ala. 114; Fitzpatrick v. Tucker, 70 Kan. 338. (c) Conceding that the sheriff's statement was a falsehood and that the deceased had never told him that defendant hit her in the head with a chunk and that the sheriff manufactured that statement for the sole purpose of obtaining a confession, it is nevertheless admissible. 16 C. J. 729; State v. Simon, 50 Mo. 370; State v. Jones, 54 Mo. 478; State v. Phelps, 74 Mo. 128; State v. Rush, 95 Mo. 199; State v. Wilson, 172 Mo. 420. (2) In the present case the evidence was substantial and it was not error for the trial court to submit it to a jury. Bower v. State, 5 Mo. 364; State v. Concelia, 250 Mo. 411; State v. Harris, 22 S.W.2d 802. (a) The law is well settled in this State that if there is any substantial evidence upon which to base the verdict, even in a criminal case, it will not be disturbed on appeal. State v. Smith, 190 Mo. 723. (b) The corpus delicti was shown and even though deceased was negligent in not properly caring for the wound the defendant cannot take advantage of these facts. State v. Landgraf, 95 Mo. 97; State v. Strong, 153 Mo. 548; State v. Lane, 158 Mo. 572; State v. Daly, 210 Mo. 664; 8 A. L. R. 516. (3) The fifth assignment in appellant's motion for new trial charges the court with error in having refused a new trial on the ground of newly discovered evidence. The question of a new trial shows the ground of newly discovered evidence rests in the sound discretion of the trial court. State v. Randolph, 39 S.W.2d 769. (a) That discretion was not abused in this case because diligence was not shown. State v. Eason, 18 S.W. 271. (b) A new trial was properly refused because the newly-discovered evidence was for the purpose of contradicting a State's witness. State v. Willis, 37 S.W.2d 407. (c) In order to support a motion for a new trial on the ground of newly-discovered evidence it must be shown that the object of the testimony is not merely to impeach the character or credibility of a witness. State v. Sebastian, 215 Mo. 58; State v. McKenzie, 177 Mo. 716; State v. Welsor, 117 Mo. 582; State v. Rockett, 87 Mo. 666; State v. Estes, 209 Mo. 306.

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

OPINION

FITZSIMMONS

Appellant was found guilty of manslaughter and his punishment was assessed at seven years in the penitentiary. From the judgment he appeals. He was charged with murder in the second degree for causing the death of his wife, Lillian Payne, by striking her on the head with a piece of wood. The couple lived on their farm in Holt County about five miles south of Oregon, and the assault was alleged to have been made on April 1, 1930, while appellant and his wife were walking home. Mrs. Payne died nineteen days later in a hospital in St. Joseph, Buchanan County. The information was filed in Holt County. Upon change of venue, appellant was tried twice in Andrew County. At the first trial he was convicted of murder in the second degree and his punishment was fixed at twenty years' imprisonment. A new trial was granted and had, and it resulted, as has been stated, in a manslaughter verdict.

I. The first assignment of error is the refusal of the trial court to sustain a demurrer to the evidence. Appellant and deceased had been married about twenty-five years. She was his second wife and he had children from both marriages. On April 1 1930, Payne and his wife left their home, sometime about noon, to attend a school district election at the school house, a mile away. They walked across fields to a public road on which they met Charles Lee. The latter informed Payne he was too late for the school election. Payne then called his wife a fool and inquired of her how she expected to get the taxes down if she did not get to the school to vote them down. The couple walked back with Lee along the road a short distance, and then they entered a wheat field to take a short cut home. When they were well into the field and were about one-half mile from their home, Lee saw appellant, Payne, stoop, pick up an object and put it under his left arm. The object was small and was not a post or piece of wood of the dimensions stated in the information. Lee, continuing along the road, met Arnold Guy, who turned into the same field which the Paynes were crossing. When Guy was about half a mile from the Paynes in the field he saw the woman "standing over like this (indicating.)" But the record does not further explain.

Viola Payne, a daughter of the couple, fifteen years old and a pupil in the district school, was at home when her parents went to the election. Upon their departure, she visited a neighbor named Mrs. Forney, but she testified that she was back home when her parents returned. She then observed that her mother had a cut upon the side of her head and that blood was clotted about the wound and in her hair. Viola...