State v. Tiedt

• Decision Date: 08 December 1947
• Docket Number: No. 40330.,40330.
• Parties: STATE v. CHARLES H. TIEDT, Appellant.
• Court: Missouri Supreme Court

206 S.W.2d 524 STATE
v.
CHARLES H. TIEDT, Appellant. No. 40330. Supreme Court of Missouri. Court en Banc, 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.

[206 S.W.2d 525]

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.

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...