State v. Roe

• Decision Date: 30 November 1915
• Docket Number: No. 18951.,18951.
• Citation: 180 S.W. 881
• Parties: STATE v. ROE.
• Court: Missouri Supreme Court

180 S.W. 881

STATE v. ROE.

No. 18951.

Supreme Court of Missouri, Division No. 2.

November 30, 1915.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Frank Roe was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Convicted in the circuit court of Callaway county of murder in the second degree and sentenced to the penitentiary for a term of 20 years, for that, as it was alleged, he had shot and killed his wife, defendant appeals.

The shooting occurred on the 21st day of June, 1914, while defendant, Daisy Roe, the deceased, a deaf and dumb daughter, Ethel, who was about 14 years of age, and a baby boy of these spouses were four or five miles out in the country from Fulton, where they resided, at a fishing place, called M the record "Burdette Hole," which seems to have been a part of, or connected with a certain creek. Deceased was shot with a rifle, described in the record as a 25-caliber, highpower rifle, shooting steel-jacketed bullets. This rifle had been borrowed from one Granville Yancy, but the uncontradicted record clearly shows that the suggestion that defendant take the rifle came from Yancy and not from defendant.

The manner in which the shooting occurred must be eked out of the record from the fragmentary statements of deceased herself, made in the presence of defendant, after she was wounded, from defendant's testimony at the trial and his statements explanatory of the shooting, offered upon the trial by the state as admissions, and from the badly interpreted and fragmentary testimony of Ethel Roe, the deaf and dumb girl. No other eyewitness was present, and no one else attempts to detail the circumstances of the shooting. The fact that defendant shot and killed deceased is not denied by him, hut is admitted. His sole defense is that the gun was fired accidentally and not intentionally. His statements to this effect, given in connection with his assertion that the shooting was accidental, were made to divers persons, some three or four of whom were put upon the stand on the part of the state to prove what defendant said as to the manner in which the shooting occurred.

According to defendant's version the deceased was on one side of the creek, sitting upon a large flat rock engaged in fishing. The defendant and the little deaf and dumb girl were across the creek, shooting at minnows, which they were using as bait. For this purpose they were using the rifle above mentioned. Occasionally defendant permitted Ethel to fire this rifle. Just the instant before the shooting of deceased she called to defendant to get her some more bait. He went over to the side of the creek on which deceased was, and sat down near her on the rock. Just as he did this, he says Ethel observed some minnows in the water, and jumped toward him and grabbed him by the arm or shoulder in order to attract his intention. In doing this she jerked, or pulled his arm and shoulder around and touched in some way the trigger of the rifle. which fired, shooting and striking deceased in the back of the neck near the juncture of the neck with the body, and fatally wounded her. The bullet seems to have struck or grazed the spinal column, producing, before the death of the deceased, complete paralysis of the lower portion of her body. The testimony of Ethel differs in details but slightly from that of defendant, except she denies she had hold of defendant, or that she touched the rifle at the moment it was fired, but she says at this instant she was "looking at her mamma." In passing, it may be said that when the he first testified in this case at the preliminary hearing, she then gave testimony which seems to have corroborated the version of defendant as to the matter of her jumping and grabbing him at the time the rifle fired.

After the shooting defendant sent Ethel to call some of the neighbors and busied himself seemingly with doing all things possible for the aid and comfort of deceased. While defendant was explaining to some of the neighbors who came to the scene, the manner in which the shooting occurred, deceased interrupted him by saying: "Frank, it looked like you stood up and shot me a purpose." To this defendant replied: "Oh, no, mamma, it was an accident." While defendant, to stanch the blood, was applying cold, wet cloths to the wound of deceased, she said to him: "Don't do that it looks to me like you are trying to strangle me." Subsequently, however, and just before death, a state's witness tells us she asked her mother "to be good to Frank," the defendant.

The evidence in the case was largely directed towards the question of whether the shooting was intentional or accidental, this being in fact the only issue left in controversy for the determination of the jury. In discussing the contention of defendant that the evidence was insufficient to take this case to the jury, we will to compelled to refer in the opinion to the testimony pro and con upon this controversy touching intent, so we need not cumber the record with it here.

Defendant and deceased had formerly resided in Adair county; but had come to Fulton some two or three years before the shooting for the purpose of educating Ethel at the State Deaf and Dumb School. For apparently the whole of the time defendant resided in Fulton, or at any rate shortly before the shooting, he was employed as a bartender in one of the saloons there. His business for a large part of the time required him to be away from home until about midnight. Since much of the testimony offered on the part of the state to show motive, has to do with defendant's absenting himself from home at night, we mention this fact in order that it may be kept in mind as throwing light upon so much of the state's proof in the case.

J. R. Baker and Judson Sanderson, both of Fulton, for appellant. The Attorney General, for the State.

FARIS, P. J. (after stating the facts as above).

I. This case was not argued, nor have we been favored by any brief on the part of the defendant. Pursuant, however, to the duty enjoined on us by statute (section 5312, R. S. 1909) we have carefully examined the record for such errors as are pointed out and preserved in the motion for a new trial.

Twenty-six different assignments of error (including subhead attacks on the several instructions given and refused and separate assignments of alleged unfair argument) are set out in the motion for a new trial. We have gone over these, as in duty bound, and, except in so far as we discuss them below, have found neither substance nor merit In them.

Complaint is made of instructions given and refused. We have looked into this, and find no valid cause for complaint on either hand. The instructions given for the state are in the approved forms, and those asked and given for defendant are as full and fair as he was entitled to. In fact, if the learned trial court erred in this behalf at all, it was on the side of mercy, and for this defendant will not be heard to complain.

The contention is urged in four separate assignments of error that the evidence was not sufficient to take the case to the jury, and therefore the learned trial judge should have sustained the timely demurrer to the evidence offered by defendant. This presents an exceedingly close and difficult question. We approach it from the conceded premise that where there is any substantial evidence of guilt, the weight of the evidence is to be resolved by the triers of fact; where there is no substantial evidence, the question becomes one of law to be resolved by the court. State v. Taylor, 261 Mo. loc. cit. 229, 168 S. W. 1191; State v. Concelia, 250 Mo. 411, 157 S. W. 778; State v. Bass, 251 Mo. 107, 157 S. W. 782; State v. Maggard, 250 Mo. 335, 157 S. W. 354.

In the Concelia Case, supra, 250 Mo. at page 424, 157 S. W. at page 781, the writer hereof, speaking for this division, said:

"As a court of errors, it is not, as a rule, our duty to pass upon the facts of a case. Where there exists upon the record what has been rather loosely called any `substantial evidence' of the existence of a state of facts legally required to be shown, it is our duty to relegate the determination of controverted questions to the triers of fact. `The rule is that, before this court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is that the verdict is the result of passion, prejudice, or partiality.' State v. Glahn, 97 Mo. 689 : State v. Howell, 100 Mo. loc. cit. 659 ."

With this phase of this case we have had much difficulty, for the twilight zone bounding substantial evidence on one side and the failure thereof upon the other shades toward either side so imperceptibly as almost to baffle an intelligent determination of the truth of this contention. So much incompetent and hurtful testimony got into the case (for the most part without challenge for incompetency), that the difficulty in the behalf mentioned has been largely augmented. Defendant, we repeat, does not deny that he shot and killed deceased; on the contrary, he admits it and tells how it occurred. His sole defense is that the shooting was not intentional, but that it was accidental. His own relation of the facts shows an accidental shooting. In corroboration it is proven (for it is shown by a witness for the state and not denied) that he did not solicit the lending to him of the rifle from which the fatal shot came, and that this rifle stands cocked ordinarily (and unless brought to the half-cock by physical manipulation) when it is loaded; that in working the mechanism, in ejecting an empty shell and throwing in, to the chamber a loaded one, the gun is cocked, ready to be fired again merely by a pull upon the trigger. While the fact that defendant did not solicit the loan of the rifle is a circumstance in his favor, it is not conclusive, or even...