State v. Scott

• Decision Date: 26 September 1949
• Docket Number: 41379
• Parties: State of Missouri, Respondent, v. Afton Scott, Appellant
• Court: Missouri Supreme Court

223 S.W.2d 453

359 Mo. 631

State of Missouri, Respondent, v. Afton Scott, Appellant

No. 41379

Supreme Court of Missouri

September 26, 1949

Appeal from Wright Circuit Court; Hon. Fred H. Maughmer Special Judge.

Affirmed.

SYLLABUS

Defendant's conviction for the murder of his wife is affirmed. A transferred circuit judge had jurisdiction. A remark of a prospective juror did not require the discharge of the entire panel. There were no jurors related to the deceased. There was no inflammatory evidence introduced. An instruction on defendant's insanity defense was not erroneous. The jury's walk while in charge of the sheriff through a cemetery where another of defendant's victims was buried was not reversible error.

Rogers & Rogers for appellant.

(1) The court erred in overruling the plea to the jurisdiction of the court. Sec. 6, Art. V, Constitution of Missouri, 1945; Supreme Court Rule 11; Sec. 4040, R.S. 1939. (2) During the examination of the jurors touching their competency to serve as jurors in this case, in response to a question by the court a juror named Smith stated in the presence of the rest of the panel that he had formed an opinion; that from what he had heard and knew the defendant was guilty of murder and should spend the rest of his life on a rock-pile. The court erred in overruling the motion of the defendant to declare a mistrial and discharge the jury. (3) During the trial of the case the killing of the deceased was admitted and the defense was insanity. The court erred in admitting over the objections and exceptions of the defendant, incompetent, irrelevant and immaterial testimony of a prejudicial and inflammatory nature, said testimony being the following. (4) Evidence as to the relative size of the accused and the deceased is inadmissible except where the defendant claims self-defense. If the defendant is the aggressor, it is not competent for him to introduce evidence as to the superior strength and physical activity of the deceased. State v. Talmage, 107 Mo. 543; State v. Goddard, 162 Mo. 198. (5) The court erred in giving Instruction Numbered Three over the objections and exceptions of the defendant. By attaching Paragraph Two on the question of burden of proof on insanity to the instruction on presumption of innocence, the effect was to nullify the first paragraph on the presumption of innocence, and (6) The court erred in giving Instruction Numbered Eight over the objections and exceptions of the defendant. The court should have told the jury that "If upon a consideration of all the evidence in the case, including the evidence touching the insanity of the defendant, you have a reasonable doubt as to the guilt or innocence of the defendant, you should acquit the defendant" and failure to do so was error on the part of the court. The juror, Alvin Owens, was and is related to the Raney family and to the deceased. He did not reveal this in his examination and the defendant did not know about it until after the trial, and the juror, Eli Atkinson, was related to the deceased and did not reveal this in his examination and defendant did not know about it until after the trial. (7) The short time the jury deliberated, being less than one hour, shows that the verdict was the result of prejudice and that the jury was inflamed and did not properly consider the instructions of the court and the evidence. (8) During the progress of the trial and at a recess thereof the jury was allowed to go to the cemetery where Judge Charles Jackson was buried and to converse regarding his grave. Such action on the part of the jury was highly prejudicial to the rights of the defendant. 64 C.J., sec. 787, p. 1012, sec. 800, p. 1017.

J. E. Taylor, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in overruling appellant's plea to the jurisdiction of the court. Sec. 6, Art. V, Constitution of Missouri, 1945; Rule 11, Supreme Court of Missouri; Sec. 15, Art. V, Constitution of Missouri, 1945. (2) The court did not err in refusing to discharge the jury because of remarks of prospective juror Sam Smith. (3) The court did not err in admitting testimony as to the size of the deceased, the character of her wounds and the gun and shells used in the killing. State v. McKeever, 101 S.W.2d 23; State v. Krebs, 106 S.W.2d 428; State v. Wynne, 182 S.W.2d 294; State v. Cooper, 259 S.W. 434; State v. Peterson, 154 S.W.2d 134; State v. Creed, 252 S.W. 678; 30 C.J. 218, sec. 448. (4) The court did not err in giving Instructions 3 and 8 on the part of the State. State v. Sapp, 203 S.W.2d 425; State v. Pinski, 163 S.W.2d 785; State v. Porter, 111 S.W. 529, 213 Mo. 43; State v. Cocriel, 285 S.W. 440, 314 Mo. 699; State v. Duestrow, 137 Mo. 44, 38 S.W. 554; State v. Barbata, 336 Mo. 362, 80 S.W.2d 865. (5) The court did not err in refusing to grant a new trial because jurors Alvin Owens and Eli Atkinson were claimed to be related to the deceased. 2 C.J., p. 378; State v. Thomas, 174 S.W.2d 337; State v. Carter, 131 S.W.2d 546; 2 C.J. 379. (6) The court did not err in refusing to grant a new trial because the jury did not deliberate more than an hour. 64 C.J. 1019. (7) The court did not err in refusing to grant a new trial because the sheriff in charge of the jury permitted them to walk to the edge of the cemetery where Judge Jackson was buried.

OPINION

Leedy, J.

Afton Scott was convicted of murder in the first degree in having shot and killed his wife, Verla, on March 29, 1948, in Wright County. The judgment imposed the extreme penalty in accordance with the verdict, and he appeals. The killing was admitted; the defense, insanity. Defendant, 48 years old, lived with his wife and 10 children on a farm in Douglas County about 6 or 7 miles from Mountain Grove, adjoining the farm of Andrew Torkelson. Defendant and his wife had trouble on the preceding Saturday, which resulted in his wife leaving home, taking her children with her, and going to the home of her mother, Mrs. Mary Raney, in Mountain Grove. On the afternoon of March 29, 1948, Judge Charles H. Jackson drove to the Torkelson farm to look at some cattle which he intended to purchase. Defendant learned of his presence there and went over to the Torkelson farm. He went to the barn where Judge Jackson and Torkelson were standing, and when first noticed by them, he had his gun leveled at Judge Jackson. He said, "Andrew, stand back." Judge Jackson said, "Scott, put that thing down. I have been a friend to you. I have helped you." The defendant replied, "I have got you where I want you. You have broke up my home." Whereupon, defendant fired a shot, killing Judge Jackson instantly.

After cautioning the Torkelsons not to attempt to stop him, he removed the wires from the Jackson and Torkelson cars so they could not be driven, got in his own car and drove away. He went to the home of his father in Mountain Grove, drew a diagram of his barn showing where he had hidden his money, and told his father what he had done, after which he drove to the home of his mother-in-law, Mrs. Raney, at Mountain Grove. When the defendant arrived at the home of Mrs. Raney, he got out of the car and went in. His wife, Verla, was sitting in the house holding the baby. The defendant told her he wanted to talk with her. She told him that if he had anything to say, to say it in the house. He told her he wanted to talk to her personally and to come on out and that he wanted to get home to do his chores. She was holding the baby at that time. He told her to put the baby down and she handed it to one of their daughters and both went outside. After they had gotten outside and before any conversation was had between them, Scott went to his car, took the gun therefrom and shot his wife. After the shooting, the defendant got in his car, drove away, and on the morning of the second day thereafter surrendered to the State Patrol voluntarily. (It may be well at this point to say that the facts touching the killing of Judge Jackson were developed somewhat by consent because counsel for defendant had informed the court that if the state did not prove them, that the defendant would as a part of his case and for the purpose of proving his defense of insanity.)

Defendant's plea to the jurisdiction challenges the authority of Judge Maughmer to try the case. He was transferred to the Wright Circuit Court by an order of the Supreme Court made pursuant to § 6, Art. V, Const. of Mo., 1945, and rule 11 of the Supreme Court. The facts are these: Judge Moulder, who succeeded Judge Jackson as the regular judge of the Wright Circuit Court, being unable to hold the June, 1948 Term (at which this case was docketed), made an order calling in Judge Blair of the 14th Circuit. Defendant filed an application for a change of venue "from Judge Blair," which Judge Blair sustained, but he did not call in another judge. Instead, Judge Moulder reappeared, and entered an order disqualifying himself, and requesting the Supreme Court to transfer another judge to sit in the case under the constitutional provision above mentioned. This was done, and Judge Maughmer was ordered transferred. Defendant contends that when the change of venue was taken from Judge Blair, it became his duty, under § 4040, R.S. '39, to call in another judge to try the case. It will be observed that under the express provisions of that section, the duty to call in another judge arises only "if, . . . no person to try the case will serve when elected as such special judge" (provision for the election of an attorney possessing the qualifications of a circuit judge being made by § 4038, R.S. '39). These sections would seem to be of doubtful validity under the 1945 Constitution, but as that question is not briefed, it will not be...