State v. Rumfelt

• Decision Date: 26 May 1910
• Parties: STATE v. RUMFELT.
• Court: Missouri Supreme Court

128 S.W. 737

228 Mo. 443

STATE v. RUMFELT.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

1. HOMICIDE (§ 253)—EVIDENCE—SUFFICIENCY.

Evidence, while purely circumstantial, held sufficient to sustain a conviction of murder in first degree.

2. WITNESSES (§ 269)—CROSS-EXAMINATION— SCOPE.

Cross-examination, being as to matters referred to, or at least necessarily embraced, in the questions and answers on the examination in chief, is appropriate.

3. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR.

Allowing questions as to certain letters was harmless; they and the answers developing no evidence for or against defendant, and the jury being specifically directed not to consider either.

4. CRIMINAL LAW (§ 1172)—APPEAL—HARMLESS ERROR—INSTRUCTIONS.

Defendant may not complain of error in his favor in an instruction giving him an additional presumption of innocence from the relationship between him and deceased.

5. HOMICIDE (§ 308) — INSTRUCTIONS — DEGREES OF GUILT.

Defendant on the facts developed being guilty, if at all, of murder in the first degree, the instructions were properly confined to that degree.

6. CRIMINAL LAW (§ 1119)—APPEAL—RECORD —REMARKS OF COUNSEL.

An assignment of error complaining of remarks of the prosecuting attorney in the argument cannot be considered; the record disclosing nothing to support it, outside the motion for new trial.

7. CRIMINAL LAW (§ 957) — VERDICT—NEW TRIAL—IMPEACHMENT OF JUROR.

A verdict may not be impeached by statement of a member of the jury.

Appeal from Circuit Court, Ripley County; J. C. Sheppard, Judge.

Martin Rumfelt was convicted of murder, and appeals. Affirmed.

This cause is pending upon appeal on the part of the defendant from a judgment of the circuit court of Ripley county, Mo., convicting him of murder of the first degree.

On the 16th day of February, 1909, the prosecuting attorney of Ripley county filed in the circuit court an information charging appellant with murder in the first degree. At the March term of court appellant waived formal arraignment and entered his plea of not guilty. A jury was forthwith impaneled and sworn and the trial proceeded.

The evidence on the part of the state tended to show that during the year 1908 defendant and his brother, the deceased, lived together, "batched," as the witnesses put it, on a farm in Ripley county, Mo. Defendant had conveyed his four-fifths interest in the land to deceased. The remaining one-fifth interest belonged already to deceased. The brothers had not been in complete accord concerning their business affairs, and their treatment of each other, according to the witness Moore, their brother-in-law, had not been entirely brotherly for some time. On November 12, 1908, some 12 hours prior to the death of Andrew Rumfelt, he and defendant were observed "not to appear right, like they had at other times," and it was noticed that they did not speak to each other. At about 11 p. m. November 12, 1908, W. A. Moore was aroused by defendant repeatedly calling his name. Moore arose and at his kitchen door met defendant, gun in hand. Defendant told his brother-in-law that he was awakened by the report of a gun; that he supposed his brother was shooting at a stray dog, probably; that he felt to see if his brother was in bed, and at that moment a second shot was fired into the bed near his (defendant's) head; that he threw back the covers, sprang out of bed, seized his gun, and fired, but "did not know which way he shot"; that he got more shells from the mantel, spilling others upon the floor, reloaded his gun, and fired at the form of a man going out the door, but "didn't know whether he killed any one or not." This recital defendant repeated to others later that night. Defendant was nervous and excited and urged his brother-in-law to go back with him at once to see whether his brother had been killed and whether he had killed any one with the shots he said he had fired. Moore took defendant's gun from him and unloaded it, taking out a "New Club" shell. Moore then induced defendant to come into the house, and then it appeared that he was fully dressed, save that he was wearing no hat, and that his shoes, though laced to the top, were untied.

By means of the telephone Moore summoned some of his neighbors. To these defendant told his story substantially as he had done to his brother-in-law. Defendant, his brother-in-law, and the neighbors who had gathered in went to the Rumfelt house and there found Andrew Rumfelt dead. The outer door was fastened with a chain. A charge of shot had passed entirely through the head of the deceased, having entered about two inches above the left ear, and having passed out of the head on the right side; the wound of exit being about six inches long. The left side of deceased's face was powder burned. Some of the shot had lodged in the pillow beneath the dead man's head. Another charge had been fired into the end of the pillow slip on the side of the bed not occupied by deceased, passing through the bed and into the wall beneath. Deceased, when found, was lying on his back with his arms folded; the bed covers being "snugly drawn up over him" and "tucked under him on both sides." There were no indications that any one save deceased had occupied the bed that night. The wound in the head was the only evidence of violence on the body of the deceased. An empty "Robin Hood" shotgun shell was found near the head of the bed and an empty "New Club" shell near the door. These shells had the appearance of of having been recently fired and were of the same kind and caliber as other loaded shells found in the belt belonging with the defendant's gun and also in a box on the mantel. The "Robin Hood" shell found was like one which Andrew Rumfelt was seen to place in the gun the day before. There was no indication in the room that more than three shots had been fired, though, according to defendant's first story, his unknown assailant had fired two, and he (defendant) had fired two. Defendant, while in jail, had an empty shell burned. Defendant, some time after the killing, stated that he fired only one shot and fired that at a form in the doorway. It appeared that the charge which struck the wall near the door could not have struck where it did had the door been open. The gun identified by defendant as the one used by him on the night of the killing was in evidence, and it was shown that the empty shells found on the floor had been fired from this gun; the impression made by the plunger on the shells in question being somewhat to one side of the usual position, and the plunger on the gun used by defendant being loose in such a way as to strike shells fired by it as those in evidence were struck. There was also evidence tending to show that, in order for the fatal charge to strike deceased as it did, it must have passed within an inch of the pillow on which defendant asserted he was lying when his brother was killed. There was other evidence for the state, however, tending to disprove this. The bedding and pillows on the bed on which deceased lay when killed were burned by one of appellant's counsel and the witness Moore. On cross-examination some of the state's witnesses stated that defendant's reputation for peace and quiet was good.

For defendant, J. L. Robinson testified that he and Moore publicly burned the bedding; he having been employed by defendant to clean up the premises for a tenant to whom defendant had leased them. He offered to let Moore have any of the household goods he might want. The bedding was old, dirty, and bloody. The sole motive in burning it was "to get rid of it." There was no intent to destroy evidence. Witness said he "expected," if he "had been prosecuting attorney he would have taken care of those pillows," adding, "I didn't need them in my business." Witness admitted he knew he was destroying "competent, legal evidence," and added that he "was representing the other side," being one of defendant's counsel. In his own behalf defendant testified that he did not shoot his brother and did not know who did. He admitted that most of the statements attributed to him by the state's witnesses were correct, except that he declared he had not said he fired two shots. Defendant then testified in substance to the same facts he had stated on his arrival at Moore's, with the exception noted above, and with the further exception that he added that when he fired his gun the door had been drawn suddenly shut. He explained his failure to investigate his brother's condition before going to Moore's by saying that to have done so would have exposed him to a shot through the window. He said that he left the house by the back door, went to the corner of the house, and saw that the front gate was open, but saw no one. He then went to Moore's. He said he made no outcry before reaching Moore's, fearing that his unknown assailant would pursue and shoot him. Defendant declared he and the deceased had never had any difficulty with each other.

At the close of the evidence, the court instructed the jury upon murder of the first degree, reasonable doubt, and upon all other subjects to which the testimony was applicable. The cause was then submitted to the jury, and they returned their verdict finding the defendant guilty of murder in the first degree and fixed his punishment at imprisonment in the penitentiary for life. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Sentence and judgment were rendered in conformity to the verdict returned by the jury. From this judgment defendant prosecuted this appeal, and...