State v. Todd

• Citation: 116 S.W.2d 113,342 Mo. 601
• Decision Date: 03 May 1938
• Docket Number: 35415
• Parties: The State v. Bugg Todd, Appellant
• Court: Missouri Supreme Court

116 S.W.2d 113

342 Mo. 601

The State v. Bugg Todd, Appellant

No. 35415

Supreme Court of Missouri

May 3, 1938

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Affirmed.

Henry C. Walker for appellant.

Roy McKittrick, Attorney General, and Aubrey R. Hammett Jr., for respondent.

(1) The court properly admitted evidence on behalf of the State of intoxication of the defendant. Johnson v. State, 148 S.E. 610; State v. Bagby, 337 Mo. 425, 93 S.W.2d 249; 16 C. J., p. 751; State v. Hatcher, 303 Mo. 25, 259 S.W. 467; State v. Hannebrink, 329 Mo. 254, 44 S.W.2d 145; State v. Keller, 281 S.W. 963. (2) The court properly admitted evidence of the witness that he smelled liquor on defendant's breath on the night of the homicide. Mulligan v. State, 89 S.E. 544; Johnson v. State, 148 S.E. 610. (3) Voluntary statements of defendant after alleged commission of crime are always admissible in evidence against him. State v. Prunty, 276 Mo. 376, 208 S.W. 91; State v. Daly, 210 Mo. 676, 109 S.W. 53; State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877; State v. Barr, 102 S.W.2d 633. (4) A lay witness may testify that defendant was sane without the laying of any foundation. The court committed no error in permitting the introduction of such evidence. State v. Barbata, 80 S.W.2d 875; State v. McCann, 329 Mo. 762, 47 S.W.2d 32; State v. Higginbotham, 335 Mo. 102, 72 S.W.2d 69; State v. Weiss, 219 S.W. 373.

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

OPINION

COOLEY

Tried in the Circuit Court of Stoddard County, on change of venue from Dunklin County, appellant, defendant below, was convicted of murder in the second degree, sentenced to twelve years' imprisonment in the penitentiary and has appealed. The homicide is admitted, the only defense offered being temporary insanity.

The State's evidence tended to show the following:

Defendant, with a shotgun, shot and killed his son, Nyman Todd, on the night of April 14, 1935, at defendant's home. Defendant came home that night about ten o'clock, apparently somewhat under the influence of intoxicating liquor. His eldest daughter, Lorie, had gone to bed upstairs but was not yet asleep. Two younger children and defendant's wife were at home. One a son, Norvil, was in bed in an upstairs bedroom. Lorie and Norvil both testified for the State. The youngest son, a child too young to testify, was in bed with his mother in a downstairs bedroom. Lorie's attention, according to her testimony, was attracted by hearing her mother call for Nyman (the deceased). She went downstairs, finding her father with a shotgun in his hands pointed at his wife. She tried ineffectively to get the gun away from him or get him to put it away. About this time Nyman appeared on the scene. It appears that Nyman was married and lived a short distance, perhaps a half mile or so, from his father's residence, and that on the night in question he and a friend, Orbie Hogan, had attended church together. After church they were going to Nyman's home or perhaps to defendant's home, it is here immaterial which, when about a half quarter of a mile from defendant's residence, their attention was attracted by hearing defendant cursing and hearing some member or members of the family screaming, these sounds coming from defendant's residence. Nyman hurried to the place, followed by Hogan who arrived immediately behind Nyman. Hogan testified that Nyman went up on the porch and asked defendant, who then had the gun in his hands, what the trouble was about, receiving no answer, so far as shown; that Nyman then asked him, -- Hogan -- to come and take the gun away from defendant, saying that "he won't shoot you," whereupon defendant said, apparently to Nyman, "You are just a God Damn fool. I will shoot you," and immediately shot Nyman, inflicting a mortal wound from which Nyman died within a few minutes.

There was evidence to the effect that at times defendant had mistreated his wife, mostly at times when he was drinking; that some thirty days or so before the homicide Nyman had told, -- or "warned" -- defendant not to again mistreat his, Nyman's mother and that defendant had then said to Nyman, "I will kill you if you ever interfere with me in anything."

The evidence indicates that, when sober, defendant was not a bad or troublesome man and generally treated his family reasonably well, but when under the influence of liquor was at times abusive to his wife, perhaps to others.

On behalf of defendant, his wife testified that he came home the night of the homicide, apparently sober and in good spirits, said he wanted only some milk for supper and upon being told by her where it was procured and drank some of it; that a sudden change seemed to come over him; that he approached the bed in which she and the little boy were, having a knife in his hand, telling her he had killed a man and the law was after him and wanted her to see the blood on his knife; that he then procured the shotgun from the wardrobe. (He had not killed or tried to kill anybody.) Her testimony in substance was that he was not drunk but appeared to be crazy; further that he had had spells of that kind before, had himself, when sober, indicated that he feared he might be becoming mentally deranged or about to become so and had suggested consulting certain named friends with the view of seeing if some steps should be taken relative to such feared condition; and that that matter had been discussed between them in the presence of the children. A physician, called by defendant, testified in substance, in answer to a hypothetical question based upon Mrs. Todd's testimony, that defendant, at the time of the homicide, was suffering from hallucinations and (in substance and effect), was temporarily insane; but he further testified that he had not examined the defendant and, in effect, that there was hardly enough in the testimony he had heard to enable him to pronounce definitely as to defendant's mental condition at the time of the homicide.

Defendant, testifying for himself, said he had taken two drinks that day but was sober when he came home. He remembered eating his supper or "part of it," but did not remember anything about getting the shotgun or shooting his son. He remembered seeing and talking a few words with the boy after the latter was shot and then his memory again became a blank until about when officers arrived, which other evidence showed was a short time later. Nyman was then dead. Defendant said he was eating his supper when "the last thing I remember it just seemed like something crushed me down and I remember starting to jump out of my chair but I don't remember whether I got up or what I did and that is the last I knew." He said he had not had exactly that sensation before but had had some "very peculiar feelings" at times and had discussed same with his wife and with Nyman, and had told his wife that if he got "totally crazy" to go to certain friends, the ones she had named.

The foregoing sufficiently outlines the facts. If necessary further facts will be stated in the course of the opinion.

Appellant has filed no brief here so we must look to his motion for new trial for the points on which he seeks reversal. The first three points, viz., that the verdict is "against the evidence and the weight of the evidence," that it is the "result of passion and prejudice," and "that it is not supported by the testimony and there is not sufficient . . . evidence of the guilt of the defendant," may be considered together. The first two assignments can hardly be said to be sufficiently specific. [State v. Bagby, 338 Mo. 951, 93 S.W.2d 241, 246.] Furthermore the weight of the evidence was for the jury and there is no indication in the record of passion or prejudice on the part of the jury. The third assignment seems intended to challenge the sufficiency of the evidence. It cannot be sustained. There was ample evidence to justify submission of the case to the jury and to support the verdict.

The fourth assignment in the motion for new trial, that the court erred in giving "instructions Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11," because they did not "declare the law of the case as made by the testimony," without further specification or explanation and stating no reasons has so often been held too general and indefinite to present for review the instructions or claimed errors therein since the enactment of present Section 3735, Revised Statutes 1929 (Mo. Stat. Ann., p. 3275), that further citation of decisions is unnecessary. Those interested will find many cases so holding in note 13 to said section, Mo. Stat. Ann., page 3281 et seq., where many cases by this court are cited.

It is contended that the court erred in permitting the prosecuting attorney to state to the jury in his opening statement that he expected to prove that "immediately prior to the shooting of the deceased by the defendant the deceased had reprimanded defendant about the treatment of his (the deceased's) mother." In State v Lindsey, 333 Mo. 139, 62 S.W.2d 420, 422 (3-7), we said, "The rule is well settled that the opening statement of the prosecuting attorney is not error if he acts in good faith and with reasonable grounds for supposing that he can prove the facts stated. The trial court has a wide discretion in determining whether the prosecuting attorney is acting in good faith." (Citing authorities.) In the instant case there can be no question as to the prosecuting attorney's good faith. His statement, as shown by the record, was that Nyman, not "immediately" before the shooting but a "short time, . . . within a year or two years" previously, had so "reprimanded" defendant. Defendant's counsel objected to that "as too remote if it was within a year or two years." The court at...