State v. Smith

• Decision Date: 01 December 1931
• Docket Number: 31438
• Citation: 44 S.W.2d 45,329 Mo. 272
• Parties: The State v. Frank Smith, Appellant
• Court: Missouri Supreme Court

44 S.W.2d 45

329 Mo. 272

The State v. Frank Smith, Appellant

No. 31438

Supreme Court of Missouri

December 1, 1931

Appeal from New Madrid Circuit Court; Hon. John E. Duncan Judge.

Affirmed.

Sharp & Baynes for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence at the close of the whole case. There isn't any evidence whatever connecting this defendant with the offense and he cannot be convicted on mere suspicion. State v Archer, 6 S.W.2d 912; State v. Eklof, 11 S.W.2d 1033; State v. Scott, 177 Mo. 673; State v. Hecke, 294 S.W. 452; State v. Perkins, 18 S.W.2d 8; State v. McMurphy, 25 S.W.2d 82; State v. Matticker, 22 S.W.2d 647; State v. Hardy, 34 S.W.2d 102; State v. Randolph, 34 S.W.2d 55; State v. Durbin, 29 S.W.2d 80. (2) The State wholly failed to prove what caused deceased's death or that he died as a result of the wound which was necessary before authorizing a conviction. State v. Bass, 251 Mo. 126; State v. Joy, 285 S.W. 489. The evidence must be most convincing. State v. Glahn, 97 Mo. 691. (3) The court erred in permitting the witness Dr. O'Bannon to testify as an expert in answer to hypothetical questions which did not embrace all of the facts on which to base such questions. (4) The court erred in permitting witness to testify as to the intimate relations between the defendant and the wife of the deceased. (5) The court erred in instructions given to the jury of its own motion numbered 1, 2, 3, 4, 5 and 6, being all of the instructions given in the case.

Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.

(1) The principal point relied upon by appellant is that the evidence is insufficient to sustain the conviction and the demurrer at the close of the evidence should have been sustained. Such contention is without merit. The corpus delicti was established. State v. Henke, 285 S.W. 397; State v. Hall, 231 S.W. 1004; State v. Summers, 6 S.W.2d 883. The facts and circumstances adduced were not only consistent with each other, tended to establish guilt and were consistent with the hypothesis of the defendant's guilt, but were also inconsistent with any reasonable hypothesis of his innocence. Thus, by the defendant's illicit relations with the wife of the deceased and their planned clandestine departure several days before the homicide a motive was furnished. He had threatened only three days before the homicide to kill Haskins. By the testimony of two witnesses he was walking toward the home of his victim within the hour of the homicide and his statement of where he was going was "Just stomping around." By three witnesses he is placed five or six steps from the house where the shooting occurred not more than five minutes before it occurred. He is seen running from the house and across a lot just six or eight minutes after the shot. His clothing is identified as the same a few minutes before and after the shot and when arrested. Thirty minutes after the shot the victim is found dead from a bullet wound in his back, and a bullet hole is found through a window made from the outside and toward the back of the only chair in the house of the deceased. The chain of circumstances sufficiently links the defendant with the crime without piling inference upon inference to make a submissible case for the jury and to allow them to weigh the evidence. State v. Poor, 286 Mo. 644; State v. Everhart, 289 S.W. 604; State v. Henke, 285 S.W. 392; State v. Harris, 22 S.W.2d 802; State v. Johnson, 289 S.W. 789; State v. Concelia, 250 Mo. 411; State v. Barrington, 198 Mo. 113; State v. Hall, 231 S.W. 1004. (2) Appellant contends that the court erred "in permitting Dr. O'Bannon to testify in answer to hypothetical questions which did not embrace all of the facts on which to base such question." Assuming that the question was improper, it was not properly objected to, because the particular omissions were not pointed out. State v. Everhart, 289 S.W. 608; State v. Adams, 19 S.W.2d 675; Morton v. Ry. Co., 20 S.W.2d 45; Scheipers v. Railway Co., 298 S.W. 54. Nor was the objection, "We object to that, it is a hypothetical question, not in the proper form; doesn't touch the facts sought to be proved," which was made at the trial specific enough to raise the objection now made by the motion for new trial. State v. Scanlan, 273 S.W. 1064; State v. Witherspoon, 231 Mo. 720. Moreover, the hypothetical question was unobjectionable. It substantially covers the facts in evidence with reference to the point to be proved. State v. Adams, 19 S.W.2d 675; State v. Douglas, 278 S.W. 1025. (3) The evidence of the illicit relations between defendant and the wife of the deceased both before and after the homicide was properly admitted to show motive. State v. Page, 212 Mo. 236; State v. Goddard, 162 Mo. 229; State v. Everhart, 289 S.W. 604; State v. Henke, 285 S.W. 396; State v. Duestrow, 137 Mo. 86.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

In the Circuit Court of New Madrid County the defendant, Frank Smith, was convicted of murder in the first degree for shooting and killing one Lee Haskins. His punishment was fixed by the jury at life imprisonment. He was duly sentenced in accordance with the verdict and he appeals. The serious question presented by the record is whether or not there was sufficient evidence to authorize submission of the case to the jury and to sustain the verdict of guilty.

The evidence on behalf of the State showed in substance the following:

Defendant and Haskins, the deceased, were both negroes living in the city of New Madrid. Haskins was married. Defendant was single and had lodgings in the same quarter of the city in which Haskins resided. Prior to the death of the latter there had been illicit intimacy between the defendant and Haskins' wife and they had, a few days before Haskins' death, planned to run away together to Arkansas. One witness testified to seeing defendant and Mrs. Haskins in bed together two days after Haskins was shot.

The homicide occurred on September 16, 1930, about 7:30 P. M., the time being fixed approximately by witnesses from the fact that they were on their way to a picture show or to church when they heard what was evidently the fatal shot. Haskins appeared to have been in his house when shot and to have been shot through a window. The house fronts west upon an alley eighteen or twenty feet wide, running north and south and regularly used as a thoroughfare by pedestrians. The shot that killed Haskins had evidently been fired through a window on the south side of the house. The sheriff found a small hole through the glass which he called a bullet hole, but said on cross-examination might have been made by a small stone. It was a small hole "straight through" the glass, made from the outside, as shown by particles of glass carried by the missile into the room. "The whole glass was not broken, but it was shattered." A shot could not have been fired from the alley through that window, so whoever fired the shot must have been then on the south side of the house.

The sheriff upon his arrival at Haskins' house, which he thought was thirty minutes or so after the shooting, found deceased outside and near the southwest corner of the house. Haskins was then dead with a bullet wound in his back, the body being still "warm and limber." In the room, the window of which was broken as above mentioned, he found a light burning, a bed and one chair which stood at the foot "near the corner of the bed," with its back toward the window. He found no tracks around the house (whether the ground was wet or dry is not shown) and no blood stains leading from the door to the spot where the body lay. There is no evidence of blood stains having been observed in the house.

On the evening in question Thomas Wade and Fannie Powell, both colored, were overtaken by the defendant "quite a little ways" from haskins' house and the three walked together a short distance until Wade and Miss Powell "turned off," she to go to church and he to a pool room. While their testimony is not as clear as it might be as to the location with relation to Haskins' house and direction therefrom of this meeting place, we gather from the testimony of these witnesses that the place of meeting was northerly from the house and that defendant was going and continued in the general direction of the Haskins house. Wade said he was going "sort-a" in that direction, "you could go that way," and he also testified that when defendant overtook them he was going south "the same direction we was going." Asked by Wade where he was going defendant said: "Just stomping around."

Soon thereafter defendant was met by three colored people in the alley above referred to, "five or six steps" from Haskins' house. One witness said five or six steps from the house, the other two said "from the corner of the house." Defendant was then going north in the alley. One of these three witnesses, Memphis Wesley, testified that defendant then wore a white shirt, a cap the color of which witness did not notice, and "light looking" trousers. Another, Miss Lowrey, said defendant wore a light shirt and light cap, but she did not notice the color of his trousers. The third, Miss Ross, did not notice how defendant was dressed.

The three witnesses last mentioned were walking fast, fearing they were late for the picture show to which they were bound. When they had thus walked about two blocks from the point where they had met defendant, the time so consumed being estimated at about five minutes, Wesley and Miss Lowrey heard a shot. Miss Ross did not hear it, but heard her companions speak of hearing it. Here also the evidence seems not as clear as it might have been made as to the...