State v. Rasco

• Decision Date: 06 February 1912
• Citation: State v. Rasco, 239 Mo. 535, 144 S.W. 449 (Mo. 1912)
• Parties: STATE v. RASCO.
• Court: Missouri Supreme Court

144 S.W. 449

239 Mo. 535

STATE v. RASCO.

Supreme Court of Missouri, Division No. 2.

February 6, 1912.

1. CRIMINAL LAW (§ 134)—VENUE—MOTION FOR CHANGE—EVIDENCE.

Evidence taken on a motion to change the venue of a murder trial held not to show widespread prejudice against accused so as to prevent him from obtaining a fair trial in the county of the venue.

2. CRIMINAL LAW (§ 1150) — APPEAL — DISCRETION OF TRIAL COURT — CHANGE OF VENUE.

The trial court's ruling denying a change of venue because of prejudice against accused will not be disturbed in absence of apparent abuse of discretion.

3. CRIMINAL LAW (§ 1028)—APPEAL—PRESENTATION BELOW.

Where certain articles were not in the sheriff's possession when accused's counsel asked for them for expert examination, and counsel made no application for an order to procure them for examination, accused cannot complain on appeal that he was denied an opportunity to examine the articles.

4. CRIMINAL LAW (§ 1144)—APPEAL—PRESUMPTIONS —INFORMATION—WITNESSES.

It is presumed that the state had the names of witnesses indorsed on the information as required by Rev. St. 1909, §§ 5057, 5097, and that the information was based on the evidence of such witnesses.

5. CRIMINAL LAW (§ 1166)—HARMLESS ERROR — ADDITIONAL WITNESSES — MODE OF PROCURING.

Rev. St. 1909, c. 37, art. 19, is entitled "Costs in Criminal Cases," and section 5385 provides that no subpœna shall be issued for the state unless the name of the witness be indorsed on the information, or prosecutor shall file an affidavit that other witnesses ordered by him are positively necessary. Held, that the statute was not enacted for accused's benefit, but only concerned costs, so that the fact that the affidavit and order for subpœnas for additional witnesses other than those indorsed on the information was filed after the issuance of the subpœnas, though irregular, was not reversible in absence of prejudice.

6. CRIMINAL LAW (§ 628)—INDORSEMENT OF WITNESSES — CALLING ADDITIONAL WITNESSES.

The state may call witnesses other than those indorsed on the information pursuant to Rev. St. 1909, §§ 5057, 5097, without furnishing their names to accused, in the absence of deception by the prosecutor misleading accused.

7. CRIMINAL LAW (§ 598)—CONTINUANCE— ABSENT WITNESSES—DILIGENCE.

The issuing of a subpœna for an absent witness 10 days before the case was set for trial was not due diligence by accused.

8. CRIMINAL LAW (§ 595)—CONTINUANCE— ABSENT WITNESS — MATERIALITY OF TESTIMONY.

Where a homicide was committed about 2½ miles from the town of G. some time after 6 p. m. on November 20th, evidence that accused was in a store in G. for a short time about 9 o'clock a. m. on the 20th was immaterial, making it proper to refuse a continuance to procure such evidence.

9. JURY (§ 132)—COMPETENCY—OPINION EVIDENCE.

Evidence on voir dire held to sustain a finding that a juror could give accused a fair trial, notwithstanding a preconceived opinion as to guilt, formed from newspaper reports of the murder and rumors.

10. JURY (§ 85) — COMPETENCY—DISCRETION OF COURT.

Whether a juror was biased by preconceived opinion so as to be incompetent is a question for the trial judge's discretion, in the absence of abuse thereof.

11. HOMICIDE (§ 171)—ADMISSION OF EVIDENCE —ATTENDANT CIRCUMSTANCES—TELEPHONE CALL.

The evidence showed that decedent was found in his home shot, while his wife and children were also killed, apparently by being struck on the head by a blunt instrument, and his house burned, and there was evidence that about 6:30 in the evening shots were heard from the direction of decedent's house, and that his wife was at the telephone about this time, and that after the homicide her body was found near the receiver with some of the wires around her arm. The state offered evidence of a neighbor that about 6:30 p. m. she heard a signal on the telephone indicating a call for the house of decedent's father, which was on the same line, and that witness took down her receiver and heard a jar or fall and the voices of children exclaiming: "O! Mamma! Mamma!" But it was not shown that such sounds came from decedent's house. Held, that the evidence was admissible as a circumstance tending to show that decedent's wife was assaulted and fell while at the telephone.

12. HOMICIDE (§ 338) — APPEAL — HARMLESS ERROR—ADMISSION OF EVIDENCE.

Even if incompetent, it was not reversible error to admit the evidence, since accused's only contention was that he did not commit the crime, the commission of which was admitted.

13. HOMICIDE (§ 166) — PARTICIPATION IN ACT BY ACCUSED.

Evidence that decedent and accused were playing cards the night before the killing, and that decedent exhibited a large roll of bills and silver on the morning thereof in accused's presence, and that none of the money was found on his person after the killing of decedent and the burning of his house, was admissible.

14. CRIMINAL LAW (§ 386)—EVIDENCE—TRAIL BY BLOODHOUND.

The action of properly bred and trained bloodhounds set upon the trail of a human being is competent evidence to show the direction of the person trailed and the point where the trail ends; the fact that a great number of persons visited the scene of the trail before the hounds were put upon it only going to the weight of such evidence.

15. CRIMINAL LAW (§§ 763, 764)—INSTRUCTIONS —WEIGHT OF EVIDENCE—CONDUCT OF BLOODHOUNDS.

The court instructed that evidence relating to the work of bloodhounds should be cautiously weighed, and, unless the jury believed beyond a reasonable doubt that the alleged trail at which the dogs stopped pointed to accused as the person who made it, all of the evidence as to such work and as to the trail should be disregarded, and unless the jury believed beyond a reasonable doubt that the beginning and end of the trail as followed by the dogs was made by the same human being, and unless it clearly appeared that by the breeding, training, and experience of the dogs when they were removed from the trail for an hour or so, they would on resuming work voluntarily pursue the trail of any other person or thing, the work, under the circumstances, would not be of evidential value, and the evidence should be rejected, but that, if they believed the contrary as detailed above, they could consider the work of the dogs as circumstantial evidence. Held, that the instruction was proper.

16. CRIMINAL LAW (§ 386) — EVIDENCE— TRAILING BY BLOODHOUNDS — SUFFICIENCY OF EVIDENCE.

Evidence held to show that bloodhounds, evidence of whose work was admitted, were sufficiently qualified as man trailers.

17. CRIMINAL LAW (§ 365)—EVIDENCE—RES GESTÆ—OTHER OFFENSES.

Evidence that, when decedent was shot, his wife was killed with a blunt instrument breaking her skull, was admissible, being res gestæ.

18. HOMICIDE (§ 161)—EVIDENCE—DELIBERATION.

Evidence that, at the time decedent was shot, his wife was also killed with a blunt instrument, was admissible to show deliberation.

19. HOMICIDE (§ 174 — ADMISSION OF EVIDENCE —OTHER OFFENSES.

Evidence that decedent's house was burned and his wife and children also apparently burned in the fire after being killed by a blunt instrument was admissible as tending to show efforts to conceal evidence of the killing of decedent.

20. CRIMINAL LAW (§ 656)—TRIAL—MISCONDUCT OF JUDGE.

It was highly undignified and also improper for the court in a homicide case to dispose of an objection to evidence by saying: "O, fiddlesticks! Go ahead."

21. CRIMINAL LAW (§ 483)—EVIDENCE—EXAMINATION OF EXPERT—ANSWERS.

Where the skulls of decedent's wife and children were crushed and after the murder the house was fired, a physician, who had testified that the human brain was not easily burned but seemed to incrust if left in the body, was asked what was the cause of his not being able to find the brains in the children's heads, and answered that he did not know, but he would conclude that from some cause the skulls of the children had been crushed so that the fire would get to the brain, and that his judgment would be that the brain was torn apart and partially destroyed. Held, that the answer was not a scientific opinion, but hardly more than a guess based upon the assumption that the skulls were not wholly burned, contrary to the evidence, so that it should have been stricken.

22. HOMICIDE (§ 338) — APPEAL — HARMLESS ERROR—ADMISSION OF EVIDENCE.

The physician's evidence could not have prejudiced accused, as it did not connect him with the children's death or with the killing of decedent.

23. CRIMINAL LAW (§ 404)—ADMISSION OF EVIDENCE—CLOTHING OF ACCUSED.

Shoes which were shown to have belonged to accused and were found in his bedroom the day after the killing, the heel of one of which corresponded with the heel mark from which bloodhounds took the trail to his residence, were admissible in evidence, though it was not shown that he wore them on the day of the homicide.

24. CRIMINAL LAW (§ 703)—STATEMENT OF CASE—FALSE STATEMENTS BY PROSECUTOR.

That evidence of threats by accused was not produced would not of itself show bad faith by the prosecuting attorney in stating in his opening statement that the state would prove threats, so as to make such statement reversible.

25. CRIMINAL LAW (§§ 1037, 1055)—APPEAL —OBJECTION—IMPROPER ARGUMENT.

Improper argument cannot be reviewed where no objection was made or exception saved to the sufficiency of the court's rebuke.

26. CRIMINAL LAW (§ 1171)—APPEAL—HARMLESS ERROR—IMPROPER ARGUMENT.

Prosecutor stated in argument that accused was a "foul demon and monstrosity," and further argued, "You promised that if under the law and the evidence, in your judgment, * * * the facts in the case warranted it, * * * you promised me that you would remove the demon." The murder was deliberate, and decedent's wife and children appeared also to have been killed at the same time, and the house fired. Held, that while the epithets were improper, it could not...