State v. Trainer

• Decision Date: 05 March 1935
• Citation: 80 S.W.2d 131,336 Mo. 620
• Parties: The State v. Sarah Elizabeth Trainer, Appellant
• Court: Missouri Supreme Court

80 S.W.2d 131

336 Mo. 620

The State v. Sarah Elizabeth Trainer, Appellant

Supreme Court of Missouri

March 5, 1935

Appeal from Buchanan Circuit Court; Hon. J. V. Gaddy Judge.

Affirmed.

W B. Raez, Maurice P. Murphy and Joseph H. Allen for appellant.

The error of the trial court in permitting the jury to attend the murder picture show, entitled "Luxury Liner," the separation of the jury and the improper influence the same had upon the jury, and too the outside influences and information with which the jury came in contact, as fully explained and set out in appellant's motion for a new trial and the supporting affidavits thereto attached, is sufficient to entitle appellant to a reversal of this case. This instant case being a capital case neither appellant nor her counsel for her could consent to the separation of the jury, nor to their being subjected to improper influences, as heretofore mentioned, while attending said murder picture show, nor to attending of such an improper picture show because of the improper effect or influence the same would have upon the jury in their arriving at a fair and impartial verdict in this cause. It was and now is a right to protection which the law will not permit a defendant (appellant herein) to divest herself of and no agreement or consent of her counsel can rob her of such protection under the law. Sec. 3682, R. S. 1929; State v. Schaeffer, 172 Mo. 342; State v. Collins, 81 Mo. 657; State v. Jeffries, 210 Mo. 333; State v. Shawley, 67 S.W.2d 74.

Roy McKittrick, Attorney General, and Wm. W. Barnes, Assistant Attorney General, for respondent.

(1) There is substantial evidence to support the verdict. State v. Cavinees, 326 Mo. 998; State v. Harris, 324 Mo. 231; State v. Henke, 313 Mo. 627. (2) Argument is too general to present anything for review here. State v. Fisher, 46 S.W.2d 556; State v. Jackson, 283 Mo. 24; State v. Parsons, 285 S.W. 413. (3) The record fails to show any bias or prejudice of the jury toward the appellant. State v. Hepley, 279 S.W. 702; State v. Reed, 44 S.W.2d 33; State v. Steelman, 318 Mo. 632. (4) No exceptions were saved with reference to the cross-examination of the witnesses complained about, including appellant. State v. Barker, 294 Mo. 319; State v. Beaucleigh, 92 Mo. 495; State v. Brockington, 36 S.W.2d 913; State v. Curtis, 23 S.W.2d 125; State v. Nelson, 132 Mo. 197. (a) Scope of rebuttal testimony is largely within discretion of trial court. State v. Martin, 56 S.W.2d 140; State v. Mason, 14 S.W.2d 615. (5) Mere assertions in motion for new trial are not proof of the truth thereof. State v. Aguelera, 326 Mo. 1215; State v. Feeley, 194 Mo. 315; State v. Jenkins, 327 Mo. 334; State v. Smith, 114 Mo. 423; State v. Stogsdill, 324 Mo. 130; State v. Tummons, 34 S.W.2d 124. (6) It should affirmatively appear by affidavits of appellant and her counsel, that knoweldge of the alleged misconduct of the jury did not come to them until after verdict. State v. Barrington, 198 Mo. 93; State v. Burns, 85 Mo. 49; State v. Howard, 118 Mo. 136; State v. Hunt, 141 Mo. 637; State v. Robinson, 117 Mo. 666.

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

OPINION

COOLEY

By indictment returned in the Circuit Court of Buchanan County defendant was charged with murder in the first degree for having shot and killed Cora B. Jones. Upon trial she was convicted of murder in the second degree and her punishment was assessed by the jury at fifteen years' imprisonment in the penitentiary. From sentence and judgment on the verdict she appealed.

The homicide occurred in the street near Stearn's grocery store in St. Joseph at about 6:30 P. M., December 17, 1932. Forrest Trainer, son of defendant, and his wife, Edith, had gone to the store to buy some groceries. Forrest owed a bill there. He was then without money or employment and Mr. Stearn declined to extend further credit unless something was paid on the bill. At Forrest's request his wife telephoned Fred Trainer, Forrest's father, to come to the store and soon thereafter he arrived, coming with Cora B. Jones, the deceased, in her automobile, which she parked at the curb. Fred Trainer was defendant's ex-husband, they having been divorced a year or so previously. They had separated several years prior to the divorce and from the time of the separation Fred Trainer had roomed and boarded at the home of Cora B. Jones and her husband. Defendant believed that Mrs. Jones had alienated Mr. Trainer's affections and had caused him to leave her. Mrs. Jones knew that defendant so believed and the feeling between the two women was anything but cordial. Forrest Trainer's feeling toward his father seems also to have been somewhat bitter, at least on this occasion. When Fred Trainer arrived he and Forrest got into an argument over payment of the grocery bill, Forrest insisting that his father pay it and that he had agreed to do so. The argument became heated. At one time Fred Trainer started to get back into the car in which he had come and was prevented by Forrest, who said that since he had to walk his father should walk also. The State's evidence is to the effect that Mrs. Jones was attempting to get Fred Trainer away from Forrest and into the car or to assist Fred in so doing when the defendant, who had not been present when the quarreling began, appeared on the scene, walked up close to Mrs. Jones and shot her, saying to her as she fired "You will never break up another home," or some such words. The bullet entered deceased's right eye and passed through her head. She died the next night. The State's evidence clearly makes a case of murder.

Defendant claimed self-defense. In brief her evidence tended to show that Mrs. Jones had injected herself into the argument between father and son and had assaulted and beaten Forrest with an automobile crank or iron bar of some kind; that while that was going on Edith Trainer had sent defendant an urgent telephone message to "come quick, they are killing Forrest down here;" that in response to such message she hurried from her home a few blocks away to the scene of the difficulty, accompanied or immediately followed by Mr. George C. Henderson, who roomed at her house; that when she arrived Mrs. Jones was striking Forrest with the automobile crank or iron bar; that she snatched a pistol from the pocket of Mr. Henderson's coat; that Mrs. Jones told her to keep out of this or she would get her. Defendant herself testified that just before she fired Mrs. Jones "raised her hand and said she would kill me and had something in her hand." Defendant offered evidence also that on several occasions Mrs. Jones had made threats to kill defendant, some of which had been communicated to her.

I. Appellant makes a number of assignments of error. We will notice such as are sufficiently preserved in the motion for new trial.

It is first contended that the court erred in permitting the State to cross-examine defendant and her witnesses, Henderson and Forrest Trainer, about statements made by them at the police station after their arrest on the night of the shooting. It appears that defendant, Forrest Trainer and Henderson were all arrested immediately after the shooting on a charge of felonious assault, Mrs. Jones being then still alive, and were taken to the police station where they were questioned by the officers. They made some statements contradictory of their testimony at the trial and were cross-examined about those statements. Defendant's point seems to be that because they were under arrest, did not have counsel and were not advised by the officers "of their legal rights," it was not permissible to cross-examine them as to the statements they had made. Forrest Trainer was not cross-examined as to statements made to the police. Witness Henderson and defendant were asked on cross-examination if they had made certain statements to the police contradictory of their testimony at the trial. Both testified that they did not remember what they had told the police. In rebuttal the State called the police officers and proved by them that such statements had been made. Appellant complains also of the admission of the officers' testimony. Of all this it is sufficient to say that no objections were offered to the questions so propounded to defendant and Henderson, nor to the rebuttal testimony of the officers, except that as to two or three questions put to one officer defendant objected on the ground that the witness sought to be contradicted had not been asked about that particular statement, -- a ground of objection disproved by the record. Those objections were properly overruled.

In this connection appellant says in her motion for new trial that she orally requested the court, at the close of the case, to give the jury a cautionary instruction explaining that such rebuttal testimony of the officers was introduced and should be considered only for the purpose of impeachment. The bill of exceptions does not show that such oral request was made or that defendant requested such or any instructions. The statement in the motion for new trial that such request was made does not prove itself. [State v. Tummons (Mo.), 34 S.W.2d 122, 124 (5, 6).] The statute, Section 3681, Revised Statutes 1929 (4 Mo. Stat. Ann., p. 3227), does not require the court, without request, to instruct on a collateral matter of this kind. Its failure to do so was not error. [State v. Preslar, 318 Mo. 679, 685, 300 S.W. 687, 690 (2).]

II. It is asserted in the motion for new trial that the verdict, as to the punishment assessed, was a "quotient verdict," arrived at by having each juror state the number of years' imprisonment he thought should be assessed and dividing the sum of the numbers so suggested by twelve. There is nothing in the record to...