State v. Punshon

• Decision Date: 03 March 1896
• Parties: The State v. Punshon, Appellant
• Court: Missouri Supreme Court

34 S.W. 25

133 Mo. 44

The State v. Punshon, Appellant

Supreme Court of Missouri, Second Division

March 3, 1896

Appeal from Buchanan Criminal Court. -- Benjamin J. Casteel, Esq. Special Judge.

Affirmed.

Vories & Vories and Huston & Parrish for appellant.

(1) The court was not legally organized as the judge of the criminal court did not endeavor, and hence did not fail, to secure the judge of some other circuit. Stalling v. Thomas, 18 S.W. 184; Taylor v. Mason, 9 Wheat. 344. (2) The court erred in excusing the jurors Imbrie and Gray. They were both competent. (3) The state in this case contends that the defendant killed the deceased. The theory of the defendant is that the deceased committed suicide. One of these contentions is true. The evidence in the case was purely circumstantial anything, therefore, tending to prove either contention, or that was calculated to throw any light on the manner of her death, was competent evidence. State v. Moxley, 102 Mo. 382; State v. Leutz, 45 Minn. 177; Stewart v. State, 19 Ohio 302; State v. Graham, 46 Mo 490; State v. Sloan, 47 Mo. 604; State v. McNally, 87 Mo. 644; State v. Kennedy, 121 Mo. 405; 1 Stark, Ev. [6 Ed.] 64. (4) The court erred in refusing to permit defendant to prove the disordered state of deceased's mind at, and prior to, the time of her death, and in rejecting the evidence offered by defendant for that purpose. State v. Ludwig, 70 Mo. 412; State v. Young, 119 Mo. 495; State v. Leabo, 84 Mo. 168; Boyd v. State, 14 Lea (Tenn.), 161; Blackburn v. State, 23 Ohio St. 146; State v. Kring, 64 Mo. 591; Hall v. State, 21 S.W. 368. This proof could only be made by the acts and declarations of the deceased, and the evidence offered tended to establish this fact. State v. Kring, 64 Mo. 591. This proposition is so well settled that we deem further citations of authority unnecessary. (5) The court erred in permitting counsel for the state to prove that there was a note found on the deceased, and in permitting them, in the presence of a jury, to identify the same and offer it as evidence, and in permitting counsel to state, in presence of jury, without rebuke, when the note was identified, that it was competent evidence unless objected to. State v. Crow, 107 Mo. 341; State v. Trott, 36 Mo.App. 29; State v. Young, 99 Mo. 682; State v. Jackson, 95 Mo. 623; State v. Ulrich, 110 Mo. 350; State v. Woolard, 111 Mo. 248; Haynes v. Trenton, 108 Mo. 123; State v. Evans, 124 Mo. 397. (6) The statements and declarations of the defendant at his brother's house shortly after deceased was shot, while holding his wife's head and before she died, was legitimate evidence, and the court erred in excluding it. State v. Young, 119 Mo. 515; Harriman v. Stowe, 57 Mo. 93; State v. Sloan, 47 Mo. 604; State v. Gabriel, 88 Mo. 631; Leahey v. Railroad, 97 Mo. 165; State v. Castor, 93 Mo. 243; State v. Matthews, 98 Mo. 125; State v. Crawford, 115 Mo. 620; Harper v. Morse, 114 Mo. 325; State v. Moore, 22 S.E. 1086. (7) The court erred in permitting counsel for the state to read parts of the evidence of the defendant, taken at the coroner's inquest. State v. Lewis, 118 Mo. 79; Peebles v. McHon, 15 N.Y. 384; Wood v. State, 3 S.W. (Tex.) 336; State v. Martin, 28 Mo. 530; 1 Greenl. Ev., secs. 463, 464, 465; Prewitt v. Martin, 59 Mo. 325. (8) The court erred in refusing to permit Dr. Reynolds to give his opinion as to the position the hand that held the pistol was in at the time the deceased was shot, and in rejecting the evidence of Mr. Bachellor to the same effect. Any evidence that the defendant could not have so held the pistol, or that the deceased committed suicide, was clearly competent. State v. Young, 119 Mo. 511; State v. Patrick, 107 Mo. 175; State v. Parker, 96 Mo. 382; Eyerman v. Sheehan, 52 Mo. 222; State v. Knop, 45 N.H. 148; State v. Mahan, 68 Iowa 304. (9) The court erred in refusing to permit defendant to cross-examine state's witnesses, Mrs. Windisch and Ollie Cooper, as to their ill-feeling toward defendant. State v. Jones, 106 Mo. 302; State v. Leabo, 84 Mo. 168; People v. Brooks, 30 N.E. 189; Schultz v. Railroad, 89 N.Y. 242; Stark v. People, 5 Den. 106; Gale v. Railroad, 76 N.Y. 594; Tucker v. Welsh, 17 Mass. 160; Martin v. Barnes, 7 Wis. 206; Stewart v. Kindel, 25 P. 990; State v. Peel, 14 Minn. 35; State v. Collins, 33 Kan. 77. (10) The court erred in excluding as evidence the defaced picture of the defendant, and the evidence offered by the defendant in connection therewith, tending to show that the picture was defaced by state's witnesses, Mrs. Windisch and Ollie Cooper. This evidence tended to show the malice and ill-will borne the defendant by them and was competent for that purpose. See authorities next above. (11) The court erred in allowing counsel for the state, in his closing argument to the jury, to state, without being reprimanded by the court, while arguing the presumptions of law, that wife murder was not a new thing; "That other men had killed their wives and children." State v. Woolard, 111 Mo. 248; State v. Ulrich, 110 Mo. 350; State v. Warford, 106 Mo. 55; State v. Young, 105 Mo. 641; State v. Moxley, 102 Mo. 394.

R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.

(1) Judge Casteel was properly elected special judge; the statute provides only two prerequisites, viz.: First, the inability of the judge for any cause to hold the term; and, second, his failure to procure another judge. (2) The court did not err in its rulings on the evidence. (3) Nor in the giving and refusing of instructions. (4) The trial court did not err in permitting the questions asked of defendant by the state on cross-examination. State v. Avery, 113 Mo. 499. (5) The remark of the counsel for the state that "other men had killed their wives and children; it has been done many times before; it is no new thing" was entirely legitimate. (6) The supreme court will not reverse the judgment because the verdict is against the weight of the evidence. State v. Fisher, 124 Mo. 462; State v. Young, 119 Mo. 495; State v. Banks, 118 Mo. 117; State v. Punshon, 124 Mo. 448.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is the second appeal by the defendant in this case. On the first trial he was convicted of manslaughter of the first degree and on his appeal the judgment of the court below was reversed and the cause remanded for new trial. The case is reported in 124 Mo. 448, to which reference may be had for full statement of the material facts connected with the homicide. Such additional facts as may be necessary to a full understanding of the case will be stated in course of the opinion.

On the last trial defendant was convicted of murder in the first degree.

I. At the March term, 1895, of the criminal court of Buchanan county, Missouri (the term at which the last trial was had), the judge of said court, Honorable Silas Woodson, being unable to hold said term by reason of indisposition, Hon. B. J. Casteel was elected by the members of the bar of said court, special judge to hold said term, which he proceeded to do, after having taken the requisite oath, etc.

The point was made in the court below, and insisted upon in this court, that the trial court was not legally authorized, and that the special judge was without authority to try the case. This contention is predicated on the fact that it was not shown that the regular judge had ever tried to procure another judge to hold the term and had failed, and that it is only under such circumstances that a special judge can be elected by the members of the bar to hold any, term, or part of term, of court.

By section 3323, Revised Statutes, 1889, it is provided that "whenever the judge, from any cause, shall be unable to hold any term or part of term of court, and shall fail to procure another judge to hold said term or part of term * * * the attorneys of the court who are present, but not less in number than five, may elect one of its members then in attendance having the qualifications of a circuit judge, to hold the court for the occasion." The record recites that "said Silas Woodson, judge of this court, has failed to procure another judge to hold said term; it is ordered by the clerk that an election be held," etc. The power of the members of the bar to elect a special judge to hold the term in no way depended on the efforts of the regular judge to procure another judge for that purpose, but his failure to do so; nonaction on his part in this regard, as shown by the record, authorized the election.

The election seems to have been in compliance with the statute and in every way regular.

II. Of the special venire of one hundred men summoned by the sheriff of the county in obedience to the order of the court, from which forty qualified jurors from whom twelve were to be selected to try the case, two of them, D. L. Gray and J. T. Imbrie were challenged by the state for cause, and excused over the objection and exception of defendant. The contention is, that they were competent to serve in the case, and error was committed in excusing them.

They were both sworn to answer questions touching their qualification to sit in judgment in the case. Gray in the course of his examination was interrogated, and answered as follows:

"Q. Is your mind in such condition at this time that you can hear the evidence in this case, and the instructions of the court as to the law, and return a fair and impartial verdict for both the state and the defendant, without reference to what you have read in the newspaper, or any opinion you have formed from it? A. No, sir; it is not.

"Q. You think you could not give the party and the state a fair trial, and lay aside everything you have heard...