State v. Wynne, No. 38548.

CourtMissouri Supreme Court
Writing for the CourtBarrett
Citation182 S.W.2d 294
PartiesSTATE v. GRACE WYNNE, Appellant.
Docket NumberNo. 38548.
Decision Date05 September 1944
182 S.W.2d 294
STATE
v.
GRACE WYNNE, Appellant.
No. 38548.
Supreme Court of Missouri.
Division Two, September 5, 1944.

Appeal from Jackson Circuit Court.Hon. John R. James, Judge.

[182 S.W.2d 295]

REVERSED AND REMANDED.

Joseph L. Judson for appellant; Julius C. Shapiro and Clyde Taylor of counsel.

(1) The lower court committed reversible error in putting the defendant on trial at the time she was tried, for the reason that she at that time was a person adjudged to be insane and the court was wholly without jurisdiction to cause her to be tried without a judicial determination that at the time of the trial she was sane. No trial of that question was had, no judicial inquiry made, and no judicial decision rendered. The instruction given to the jury on sanity dealt alone with whether she was sane at the time of the commission of the offense and not at the time of the trial. The court erred in overruling defendant's plea in abatement. 32 C.J. 627; Cockrill v. Cockrill, 79 Fed. 143; 32 C.J., sec. 228, p. 647; Chaloner v. Sherman, 215 Fed. 867; Kiehne v. Wessell, 53 Mo. App. 667; Rannells v. Gerner, 80 Mo. 474; Imhoff v. Whitmer, 31 Penn. St. 243; Hamilton v. Henderson, 117 S.W. (2d) 379; National Life Ins. Co. v. Jayne, 132 F. (2d) 358; Coleman v. Farrar, 112 Mo. 54, 14 S.W. 825. (2) Upon fundamental legal principle, under precise precedent in courts of last resort, under construction by federal courts of the federal constitution, no court should and no court can legally try a person insane at the time of trial. Hale's Pleas of the Crown 3435; Bishop's Criminal Procedure 66; Howard's State Trials 307; Regina v. Berry, 1st Queen's Bench Div. 447; Hawkinson's Pleas of the Crown 3; Youtsey v. United States, 97 Fed. 937; Secs. 4046, 4048, R.S. 1939; Moberly v. Powell, 86 S.W. (2d) 383. (3) The court erred in giving, over the objection and exception by defendant, in giving its instruction upon insanity for the reason that in this case such instruction was a mere abstract statement of the law upon an issue not in the case and which was prejudicial to the defendant in that it could cause the jury to assume that the defendant was admitting the act of killing and was pleading by way of confession and avoidance that she was not legally responsible therefor. State ex rel. v. Mobley, 241 Pac. 155; Vacuum Oil Co. v. Quigg, 259 Pac. 858; Blodgett v. Springfield Co., 158 N.E. 60; Corbin v. United States, 181 Fed. 296; Dixon v. Dixon, 24 N.J. Eq. 134; Blank v. Township, 44 N.W. 157; 22 C.J. 92; Ellis v. State, 138 Wis. 513, 20 L.R.A. (N.S.) 444; Mandelbaum v. Goodyear Rubber Co., 6 F. (2d) 818; Richardson v. Cheshire, 193 Iowa, 930, 188 N.W. 146; Ryan v. Cooper, 201 Iowa, 220, 205 N.W. 302; Coghill v. Boring, 15 Cal. 213; In re Brigham's Estate, 128 N.W. 1054; Jones on Evidence (2 Ed.), 450; Conduitt v. Trenton Co., 326 Mo. 133, 31 S.W. (2d) 21; Caldwell v. Payne, 246 S.W. 312; Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W. (2d) 718. (4) It is always error particularly in a criminal case for the court to give an abstract instruction of law no matter how perfect and meticulously correct it is worded, upon an issue not involved in the case. Lewis v. Kansas City Pub. Serv. Co., 17 S.W. (2d) 359; Wilsch v. Gleifort, 259 S.W. 850; Moran v. Railroad, 255 S.W. 331; Salmon v. Helena Box Co., 147 Fed. 408; Schipper v. Brashear, 132 S.W. (2d) 933; Humphreys v. Railroad, 83 S.W. (2d) 589; King v. Reith, 108 S.W. (2d) 21; Perles v. Feldman, 28 S.W. (2d) 375; Birdsong v. Jones, 30 S.W. (2d) 1094; Christman v. Reichholdt, 150 S.W. (2d) 527; Gillioz v. Commission, 153 S.W. (2d) 18; State v. Shipley, 74 S.W. 612; State v. Allen, 246 S.W. 946; State v. Bunyard, 161 S.W. 756; State v. Fleetwood, 127 S.W. 934; State v. Richards, 67 S.W. (2d) 58; State v. Banton, 111 S.W. (2d) 516; State v. Saunders, 232 S.W. 973; Avery v. Insurance Co., 280 S.W. 726; Perry v. Van Matre, 161 S.W. 643; Brown v. Railroad, 281 S.W. 452; Moloney v. Bank, 232 S.W. 133; Aronovitz v. Arky, 219 S.W. 620; Lester v. Hughley, 230 S.W. 355. (5) The lower court committed error in the giving of State's Instruction C, for the reasons that said instruction invades the province of the jury, constitutes a comment upon the evidence, is argumentative, and is based upon reasoning false in ethics and morals as well as in law. 64 C.J. 613; Oliver v. Vandalia, 28 S.W. (2d) 1044; Farmers Bank v. Miller, 8 S.W. (2d) 92; Schmidt v. Railway, 50 S.W. 921; Wyat v. Coal Co., 209 S.W. 585; Marden v. Radford, 84 S.W. (2d) 947; 1 Blashfield's Instructions to Juries (2 Ed.), p. 831, sec. 380, p. 840, sec. 383; State v. Wofford, 56 S.W. 162; State v. Lett, 85 Mo. 52; State v. Brown, 64 Mo. 366; Iron Mountain Bank v. Murdock, 62 Mo. 70, Paulette v. Brown, 40 Mo. 52; Blitt v. Heinrich, 33 Mo. App. 243; Smith v. Wabash Railroad, 19 Mo. App. 120; Evans v. St. Louis Railroad, 16 Mo. App. 522; 1 Blashfield's Instructions to Juries (2 Ed.), p. 842, sec. 384; White v. Lowenberg, 55 Mo. App. 69; Poague v. Mallory, 235 S.W. 491; Jacobs v. Danciger, 95 S.W. (2d) 1193; Larson v. Webb, 58 S.W. (2d) 967; Carl v. Ellis, 100 S.W. (2d) 805; Bryant v. K.C. Rys. Co., 228 S.W. 472; Fath v. Hake, 16 Mo. App. 537; Jackson v. Powell, 184 S.W. 1132; Lloyd v. Meservey, 108 S.W. 595. (6) The court committed reversible error in receiving, over the objection and exception by defendant, the testimony of William J. Myers to experiments made by him as to the effect of discharging a firearm against brick when the said Myers had not qualified as an expert upon the question and where there was a total lack of proof as to the similarity between the conditions occurring at the scene of the alleged crime and those under which the experiment was made. 64 C.J. 87; Lynch v. Railroad, 61 S.W. (2d) 918; Cook v. St. Joseph Railroad Co., 106 S.W. (2d) 38; New Era Co. v. O'Reilly, 95 S.W. 322; Holzemer v. Metropolitan, 169 S.W. 102; Ballman v. Lueking, 219 S.W. 603; Burton v. Railroad, 162 S.W. 1064; Wells v. Lusk, 173 S.W. 750; Bretall v. Railway, 239 S.W. 597; Klenk v. Klenk, 282 S.W. 153; Jones' Commentaries on Evidence (2 Ed.), Title, Experimental Evidence, p. 1364; 2 Jones' Commentaries on Evidence (2 Ed.), sec. 738, p. 1386; 20 Am. Jur., p. 628; State v. Allison, 51 S.W. (2d) 51. (7) For every reason that the court committed error in admitting evidence of experiment of shooting an unidentified gun against the bricks as submitted in point (6) of this brief, the court also committed error in permitting the prosecuting attorney to use another pistol and to experiment therewith before the jury in demonstrating that such a pistol in his hip pocket would not show. In addition thereto, it was grievous error to permit the prosecuting attorney to exhibit and flourish and handle the deadly weapon wholly unidentified in the presence of the jury. State v. Pearson, 270 S.W. 347. (8) The court committed reversible error in permitting the assistant prosecuting attorney to abuse the defendant in relation to her daughter charging her with raising the daughter in an atmosphere of adultery, and violation of the Mann Act. (9) The court committed reversible error in permitting the state to prove over the objection and exception by defendant that defendant left the insane asylum and went elsewhere and all evidence concerning her movements from that date until at least August 13, 1935, when a second complaint against her was filed before Justice Dougherty, upon the theory that this was evidence of flight, for the reason that from December 13, 1934, to August 13, 1935, no criminal charge of any character was pending against defendant, and that no movement was for the purpose of avoiding arrest. State v. King, 78 Mo. 555; State v. Mallon, 75 Mo. 355; Wharton Criminal Evidence, sec. 750; 16 C.J. 551; State v. Marshall, 115 Mo. 383, 22 S.W. 452; State v. Jackson, 95 Mo. 623, 8 S.W. 749; Lamento v. United States, 4 F. (2d) 901; Ayers v. United States, 58 F. (2d) 607.

Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.

(1) The court did not err in permitting the Assistant Prosecuting Attorney to demonstrate with a pistol in the presence of the jury how the pistol may have been concealed or not concealed in a man's pocket. (2) The court did not err in allowing the State in the voir dire examination to inquire of the jury panel with reference to their religious belief. Sec. 4125, R.S. 1939; State v. Huett, 340 Mo. 934, 104 S.W. (2d) 252; State v. Goffstein, 342 Mo. 499, 116 S.W. (2d) 65; State v. West, 346 Mo. 563, 142 S.W. (2d) 468; West Mo. Digest Key No. 1178. (3) The court did not err in admitting the documentary and other evidence of the alleged flight of appellant. State v. Blitz, 171 Mo. 530, 71 S.W. 1027; State v. Duncan, 336 Mo. 600, 80 S.W. (2d) 147; 25 A.L.R. 898; State v. Long, 336 Mo. 630, 80 S.W. (2d) 154; State v. Brown, 62 S.W. (2d) 426. (4) The court did not err in permitting to be introduced in evidence the complaint and warrant issued out of Justice Dougherty's court. Authorities cited under Point (3). (5) No error was committed by the court in failing to further reprimand Assistant Prosecuting Attorney Jenkins in his argument to the jury, and in failing to discharge the jury for the alleged improper argument. State v. Barrington, 198 Mo. 23; State v. Londe, 345 Mo. 185, 132 S.W. (2d) 501; State v. Wilkins, 100 S.W. (2d) 889; State v. Johnson, 174 S.W. (2d) 139; State v. Cohen, 100 S.W. (2d) 544; State v. Mangercino, 325 Mo. 794, 30 S.W. (2d) 763. (6) The court did not err in giving Instruction 9 on the question of insanity, under the evidence in this case. State v. Willie Wright, 352 Mo. 66; State v. Creighton, 330 Mo. 1176, 52 S.W. (2d) 556; State v. Bidstrup, 237 Mo. 273, 140 S.W. 904; Sec. 4070, R.S. 1939. (7) The court did not err in giving Instruction 5 on the question of self-defense, for the reason that under appellant's testimony it was an issue in the...

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72 practice notes
  • State v. Johnson, No. 35416
    • United States
    • Missouri Court of Appeals
    • May 4, 1976
    ...tests of 'relevancy, materiality, probative value and reasons of policy in the administration of justice.' State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299(6) (1944); State v. Hicks, 515 S.W.2d 518, 523(11, 12) (Mo.1974). More specifically, in criminal cases Missouri courts have often state......
  • State v. Lunn, No. 1511
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 30, 1975
    ...States v. Reid, 410 F.2d 1223 (7th Cir. 1969); Landsdown v. United States, 348 F.2d 405 (5th Cir. 1965); State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944); Bean v. State, 81 Nev. 25, 398 P.2d 251 'Error in the admission of evidence 'should not be declared harmless unless it is so without q......
  • State v. Holbert, No. 51640
    • United States
    • United States State Supreme Court of Missouri
    • June 12, 1967
    ...in establishing defendant's guilt of the offense on trial. State v. Smith, 357 Mo. 467, 209 S.W.2d 138; State v. Wynne, 353 Mo. 276, 182 S.W.2d 294. And it seems perfectly obvious that their use throughout the trial was prejudicial to the defendant. We may note also that, when the jury was ......
  • State v. Hughes, No. 61616
    • United States
    • United States State Supreme Court of Missouri
    • April 8, 1980
    ..."not connected with the defendant or the crime are not admissible unless they possess some probative value." State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299 (1944). In State v. Cuckovitch, 485 S.W.2d 16, 23 (Mo. banc 1972), a revolver found in the defendant's room was not identified as the......
  • Request a trial to view additional results
72 cases
  • State v. Johnson, No. 35416
    • United States
    • Missouri Court of Appeals
    • May 4, 1976
    ...tests of 'relevancy, materiality, probative value and reasons of policy in the administration of justice.' State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299(6) (1944); State v. Hicks, 515 S.W.2d 518, 523(11, 12) (Mo.1974). More specifically, in criminal cases Missouri courts have often state......
  • State v. Lunn, No. 1511
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 30, 1975
    ...States v. Reid, 410 F.2d 1223 (7th Cir. 1969); Landsdown v. United States, 348 F.2d 405 (5th Cir. 1965); State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944); Bean v. State, 81 Nev. 25, 398 P.2d 251 'Error in the admission of evidence 'should not be declared harmless unless it is so without q......
  • State v. Holbert, No. 51640
    • United States
    • United States State Supreme Court of Missouri
    • June 12, 1967
    ...in establishing defendant's guilt of the offense on trial. State v. Smith, 357 Mo. 467, 209 S.W.2d 138; State v. Wynne, 353 Mo. 276, 182 S.W.2d 294. And it seems perfectly obvious that their use throughout the trial was prejudicial to the defendant. We may note also that, when the jury was ......
  • State v. Hughes, No. 61616
    • United States
    • United States State Supreme Court of Missouri
    • April 8, 1980
    ..."not connected with the defendant or the crime are not admissible unless they possess some probative value." State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299 (1944). In State v. Cuckovitch, 485 S.W.2d 16, 23 (Mo. banc 1972), a revolver found in the defendant's room was not identified as the......
  • Request a trial to view additional results

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