State v. Tiedt

• Decision Date: 08 December 1947
• Docket Number: 40330
• Parties: State v. Charles H. Tiedt, Appellant
• Court: Missouri Supreme Court

206 S.W.2d 524

357 Mo. 115

State v. Charles H. Tiedt, Appellant

No. 40330

Supreme Court of Missouri

December 8, 1947

Appeal from Buchanan Circuit Court; Hon. Maurice Hoffman Judge.

Reversed and remanded.

Maurice Pope, Milton Litvak and John C. Landis III for appellant.

(1) The court erred in admitting prejudicial evidence as to groaning and heavy breathing following the hearing of shots. State v. Long, 80 S.W.2d 154; State v. Porter, 276 Mo. 887. (2) The court erred in permitting the defendant to be tried for and convicted of shooting three persons, because of the too often repeated reference to and undue emphasis of the fact that three people were killed. (3) The court erred in admitting conclusion evidence in regard to the so-called shotgun pellet marks, permitting the witness to invade the province of the jury. Schmidt v. Pitluck, 26 S.W.2d 859. (4) The court erred in permitting the prosecuting attorney to make improper and prejudicial argument to the jury in the closing argument. (a) In arguing contrary to Instruction A that Tiedt should be penalized for shooting a sailor he didn't know. (b) In arguing to the jury that Delbert Machette and his wife were killed and that they left children surviving them. (c) For further arguing and repeating the fact that the Machette children had been left orphans as a result of the companion killing. (d) By arguing and repeating even after the court sustained objections to such argument as to the possibility of future crimes that might be committed by the defendant if he were not given the death penalty. State v. Lockhart, 188 Mo. 427; State v. Snow, 252 S.W. 629; State v Houston, 263 S.W. 219; State v. Jackson, 95 Mo 623. (5) The court erred in giving erroneous instructions of his own motion, to-wit, No. 7 and No. 9, and erroneously refusing to give proper instructions offered by the defendants, to-wit, numbers C, D, and E. State v. Anderson, 86 Mo. 309; 2 Raymond Missouri Instructions 663, sec. 6241.

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

(1) The court did not err in admitting evidence as to a groaning and heavy breathing following the hearing of shots. State v. Hepperman, 162 S.W.2d 877; State v. Johnson, 163 S.W.2d 780; State v. Mabry, 22 S.W.2d 639; State v. Shawley, 67 S.W.2d 74. (2) There was no error regarding reference to the killing of three people which occurred at the same time. State v. Brinkley, 189 S.W. 314; State v. Carigan, 171 S.W.2d 51, 262 Mo. 155; State v. Mosley, 22 S.W.2d 784; State v. Perry, 136 Mo. 126; State v. Schrum, 255 Mo. 273, 166 S.W. 202. (3) There was no prejudicial error in permitting witness Bierle to testify regarding shotgun pellet marks. State v. Burgess, 193 S.W. 821; State v. Loahmann, 58 S.W.2d 309. (4) The court did not err with reference to his ruling on the argument of the prosecuting attorney. State v. Barbata, 80 S.W.2d 865; State v. Barker, 18 S.W.2d 19, 322 Mo. 1173; State v. Carter, 64 S.W.2d 687; State v. Cohen, 100 S.W.2d 422; State v. Dodson, 29 S.W.2d 60; State v. Evans, 68 S.W.2d 705, 334 Mo. 914; State v. Loahmann, 58 S.W.2d 309; State v. Lynn, 23 S.W.2d 139; State v. Napoli, 44 S.W.2d 55; State v. Ragen, 108 S.W.2d 391; State v. Short, 87 S.W.2d 1031, 337 Mo. 1061; State v. Sinovich, 46 S.W.2d 877, 329 Mo. 909; State v. Townsend, 289 S.W. 570. (5) The giving of Instructions 7 and 9 and the refusal of appellant's Instructions C and D are not here for review, because not properly raised in the motion for new trial. Sec. 4125, R.S. 1939; State v. Bennett, 87 S.W.2d 159; State v. Frazier, 98 S.W.2d 787, 339 Mo. 966; State v. January, 182 S.W.2d 323, 353 Mo. 324; State v. Rosengrant, 93 S.W.2d 961, 338 Mo. 1153; State v. Tyler, 159 S.W.2d 777, 349 Mo. 167; State v. Williams, 108 S.W.2d 177, 349 Mo. 167. (6) Supreme Court will only consider contentions briefed and will not consider other alleged errors complained of in motion for new trial. State v. Fitzgerald, 174 S.W.2d 211; State v. Huitt, 104 S.W.2d 252; State v. Mason, 98 S.W.2d 574; State v. Pure, 183 S.W.2d 903.

OPINION

Leedy, J.

Charles Tiedt, the defendant, was convicted of murder in the first degree, in having killed Fred Machette in Buchanan County on November 25, 1945. The jury assessed his punishment at death; judgment and sentence accordingly, and he appeals.

Defendant's home adjoined that of Delbert Machette, a brother of the deceased, Fred Machette. Fred, who did not live in St. Joseph, and had only recently returned from Naval duty, was merely visiting in the city. He was still in uniform. He did not know Tiedt, and Tiedt did not know him. The Tiedt and Machette homes face west, and are located in the 2200 block on Main Street in the City of St. Joseph. The Tiedt house is 10 or 15 feet north of the Machette house. Both are located on a high terrace, with separate steps leading up from the sidewalk below. The building line sets back from the edge of the terrace 10 feet or more. The Machette porch is at the southwest corner of the house. It does not project out from the main walls, and forms an integral part of the main edifice, so that the front room is between the porch and the Tiedt home on the north.

It is not disputed that Fred Machette was shot and instantly killed by defendant as he (Fred) emerged from the front room into the darkness of the porch of his brother Delbert's home at about one o'clock on the night in question. When the shooting occurred, defendant was standing near the edge of the terrace at or near the dividing line between the two properties, with an exterior electric light burning over the Tiedt front door (at his back), thus exposing him to view. Moreover, the evidence showed, as a part of the res gestae, that the brother, Delbert Machette, and the latter's wife, suffered the same fate, and in precisely the same manner, the three killings having taken place in such rapid succession as to constitute, in point of time, the same occurrence. The police, arriving within a few minutes after the shooting, found the bodies; Mrs. Machette's lying on the front porch, and her husband's and Fred's on the sidewalk immediately in front of the porch, the three practically forming a triangle.

Mrs. Loetta Rogers, a resident of Hamilton, Mo., the sole adult survivor of the persons in the Machette home on the night in question, testified that she had gone from Hamilton to St. Joseph with Fred and another person during the afternoon; that after visiting at the home of Don Machette in South St. Joseph, she and Fred went to Delbert's residence about 8 p.m., where they remained with Delbert and his wife, visiting, until the tragedy occurred; that during the course of the evening they had had two mixed drinks, the last one having been served an hour or an hour and a half before the shooting. She further testified that just before the shooting occurred, the telephone rang, and Mrs. Machette answered it, then handed the phone to her husband. When Delbert hung up the phone, he said to Fred, "There is some shooting going on. Let's go see." Mrs. Machette said, "I am going out, too. You [meaning Mrs. Rogers] watch the kids." The men went first, followed by Mrs. Machette. Just after Mrs. Machette walked out, the witness heard a shot, and then rushed upstairs and stayed with one of the Machette children until the police arrived a few minutes later.

After firing the three shots, defendant ran back into his house, reloaded the gun, and returned to the yard, yelling, according to one of the neighbors, "Come on out, I am out here in front, come on out and get me;" or, as another state's witness put it, "I know you got a loaded .38 in there. Come on out and get me. I am ready to die."

Defendant was the only witness called in his behalf. It appears from his testimony that he is 51 years of age, a veteran of World War I, and the oldest employe, in point of service, in the shop where he has been continuously employed since his return to civilian life; that he has resided in St. Joseph more than 30 years, has a wife, seven children, and one stepchild, five of whom were living at home at the time of the killing; that he owns the home in which he has been living since 1920 or 1921. His hobby or diversion was hunting and fishing, in which he engaged somewhat extensively. Indeed, it was his furtherance of plans for a duck hunting expedition on the morning in question that occasioned his arrival on the scene at the time of the homicide. So much for his background, in the light of which the offense baffles comprehension.

Defendant further testified to two recent difficulties with Delbert Machette (the details being here unimportant are omitted) in which the latter was very angry and threatened defendant once with a gun. The effect of these encounters was to frighten him, Machette being a larger man. Turning now to his version of the events which immediately preceded, and culminated in, the killing of these three persons: He testified that on returning home sometime after midnight, and as he ran up the steps leading to his house, he heard voices on the darkened Machette porch, and heard Delbert say, "Here comes Tiedt now. I'll get him. I don't like him anyway. When he gets to the top of the steps, I'll get him with this .38." This, he said, excited him, and he ran around to his back door, called his wife, and told her the Machettes wanted to kill him, but he didn't know what for, and he had his wife look up their number. Whereupon he telephoned the Machette residence, Mrs. Machette answering, and the following occurred: "I said, 'You people want to kill me.' She said, 'You're God dam right, you come out in the yard and we'll show you want [what?] we want to kill you for, come on out or we are coming over to get...