The State v. Allen

• Decision Date: 19 November 1921
• Parties: THE STATE v. CHARLES FRANKLIN ALLEN, Appellant
• Court: Missouri Supreme Court

234 S.W. 837

290 Mo. 258

THE STATE v. CHARLES FRANKLIN ALLEN, Appellant

Supreme Court of Missouri, Second Division

November 19, 1921

Appeal from Grundy Circuit Court. -- Hon. L. B. Woods, Judge.

Affirmed.

Lesley P. Robinson, J. D. Allen and H. E. Thompson for appellant.

(1) The trial court erred in refusing defendant's offered instruction numbered eleven on manslaughter and erred in failing and refusing to instruct properly on manslaughter. State v. Turner, 246 Mo. 598; State v Conley, 255 Mo. 185; State v. Wilson, 242 Mo 481; State v. Sebastian, 215 Mo. 59; State v Hanson, 231 Mo. 14; State v. Heath, 221 Mo. 565; State v. Gordon, 191 Mo. 114; State v. Vest, 254 Mo. 466; State v. Grugin, 147 Mo. 39, 50; State v. Brown, 188 Mo. 451; State v. Mermann, 117 Mo. 629; State v. Winsell, 98 Mo. 137; State v. Wilson, 250 Mo. 329; State v. Whitsett, 232 Mo. 529; State v. Good, 271 Mo. 49; State v. Beckner, 194 Mo. 299; State v. Nelson, 166 Mo. 191; State v. Spencer, 160 Mo. 123; State v. Dorn, 202 Mo. 12; 21 Cyc. 972; Kelly's Criminal Law, sec. 250. (2) The trial court erred in giving the State's instruction numbered nine on the presumption of guilt. State v. Swearingen, 269 Mo. 177; State v. Cole, 213 S.W. 110; State v. Stubblefield, 239 Mo. 530; State v. Garret, 207 S.W. 784; State v. Burns, 213 S.W. 114; State v. Wansong, 217 Mo. 50, 58; State v. Frame, 204 S.W. 8; State v. Sloan, 207 S.W. 782; State v. Little, 228 S.W. 797. (3) The trial court erred in permitting the bloody garments of the deceased to be exhibited before the jury, and erred in leaving them before the jury during the afternoon session, and during the night session, and also during a portion of the morning session of the court in plain view of a number of the jurors all the time, and all of them while passing in and out of the jury box. State v. Porter, 276 Mo. 388; State v. Edelen, 231 S.W. 588. (4) The trial court erred in refusing to allow the wife of defendant to testify as to what she told defendant in the house as to the threats and conduct of deceased immediately prior to their entering the house, and what defendant said when starting out with the gun, as evidence of his intentions, and his state of mind, all of which was a part of the res gestae. State v. Reaves, 195 S.W. 1030; State v. Vest, 254 Mo. 466; State v. Cruts, 231 S.W. 606; State v. Anderson, 252 Mo. 98. (5) The trial court erred in refusing defendant's offer of evidence to the effect that on the day the baby was born as well as before, that she (deceased) did not propose that the baby should live. State v. Burns, 213 S.W. 117. (6) (a) The court erred in stating within the hearing of the jury that "defendant has been on the stand and don't show in his testimony that it was in the protection of his wife and child the shot was fired." (b) And also erred in making these remarks to counsel for defendant for objecting to the presence of bloody clothes: "and the court sees no reason at this time in order to gratify the wish of the attorney," as being prejudicial to defendant and counsel. Rose v. Kansas City, 125 Mo.App. 236; Wright v. Richmond, 21 Mo.App. 81; State v. Hyde, 234 Mo. 200, 255; Padgett v. Ry., 159 Mo. 155; Schmidt v. Railroad, 149 Mo. 283; State v. Davis, 217 S.W. 91; Landers v. Railroad, 134 Mo.App. 80; 38 Cyc. 1316; R. S. 1919, sec. 4037. (7) The court erred in not giving defendant instructions 1, 2, 3, 4, and 5, and instruction 11, being approved instructions, on defendant's theory of his case, and erred in its attempt to cover defendant's facts in instructions asked by the State. (8) The trial court erred in admitting in evidence the testimony of Lea Allen, wife of defendant, taken at the inquest, and erred in permitting the State to cross-examine her at the trial on her testimony obtained at the inquest; for the reason she was not advised that she may not testify, having then no counsel, but was placed on the stand by the coroner (or State) and compelled to testify. R. S. 1919, sec. 4036.

Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.

(1) The court did not commit error in permitting the bloody garments, worn by deceased at the time of the killing, to be brought into the courtroom and in permitting same to remain therein exposed (if exposed) to the jury's view. At the trial of a case, such as the one at bar, it is proper to admit in evidence and permit the jury to inspect clothing worn by deceased at the time of the killing. State v. Stair, 87 Mo. 268. Evidence of this character is, in the discretion of the court, admissible, although the corpus delicti is admitted, to show the nature of the wound or to throw any relevant light upon a material matter at issue. State v. Porter, 276 Mo. 387, 396; State v. Long, 209, Mo. 366, 382; State v. Miles, 199 Mo. 530, 546; State v. Thornhill, 177 Mo. 691. (2) The court did not commit error in admitting in evidence the testimony taken at the coroner's inquest. (a) Statements made by a witness when testifying at the coroner's inquest may be admitted in evidence to impeach him. People v. Bushton, 80 Cal. 160; State v. Dixon, 131 N.C. 808; People v. Hawley, 111 Cal. 78, 88; State v. Eddings, 71 Mo. 545; State v. Jefferson, 77 Mo. 136. (b) Defendant's wife was not improperly cross-examined at the trial on her testimony given at the inquest. (3) The trial court did not commit error in refusing to admit testimony as to what defendant said in the house immediately prior to the fatal shooting. Such declaration was self-serving and no part of the res gestae. State v. Long, 201 Mo. 664, 674; State v. Atchley, 186 Mo. 174, 194; State v. Holcomb, 86 Mo. 371, 378; State v. Van Zant, 71 Mo. 541; State v. Shermer, 55 Mo. 83; Angus v. State, 29 Tex.App. 52, 61. (4) The court did not commit error in refusing defendant's offer of evidence to the effect that on the day the baby was born as well as before, deceased said that she did not propose that this child should be raised by Lea Allen. Such testimony was clearly hearsay. State v. Wilson, 250 Mo. 323, 329; State v. McNanara, 212 Mo. 150, 163; State v. Punshon, 124 Mo. 448, 455. (5) Instruction 11, offered by the defendant and involving the subject-matter of manslaughter, was properly refused by the court. The existence of malice was not negatived by any of the testimony in the case. (a) "Manslaughter" is distinguished from murder solely by the absence of malice as a constituent element of the crime. State v. Hartley, 185 Mo. 669. (b) The mere fact of passion upon the part of a slayer will not reduce the homicide from murder to manslaughter where there was a previous purpose to kill. State v. Nelson, 101 Mo. 464; Collins v. United States, 150 U.S. 62, State v. Pankey, 104 N.C. 840. (c) Where the existence of deliberate malice in a person who killed another is once ascertained, its continuance down to the perpetration of the meditated act must be presumed, unless there is evidence to repel it; there must be some evidence to show that the wicked purpose had been abandoned. State v. Johnson, 23 N.C. 354; State v. Tilly, 25 N.C. 424; Riggs v. State, 30 Miss. 635. (d) Where malice is shown to have been harbored, and a fresh provocation arises to the party cherishing the malice the provocation is to be disregarded unless the murderous purpose can be shown to have been abandoned before the act was done; because where provocation intervenes between expression of malice and the killing, the presumption is that the killing was upon the malice and not upon the passion produced by the provocation. State v. Dettmer, 124 Mo. 426, 435; State v. Wilson, 242 Mo. 481, 502. (6) The court did not commit error in giving instruction 9, on the presumption of guilt. Instructions in said form have been repeatedly approved by this court. State v. Schmulbach, 243 Mo. 533; State v. Hudspeth, 159 Mo. 178, 195; State v. Grant, 152 Mo. 57, 64. (7) The mere statement by the court as to what it understood a witness to testify to is not prejudicial when the witness had, in fact, testified as the court stated. State v. Ethridge, 188 Mo. 352; State v. May, 172 Mo. 630, 652; State v. Sanders, 76 Mo. 35; Traction Co. v. O'Neil, 109 Va. 670; The Oriental v. Barclay, 16 Tex. Civ. App. 193; Olson v. Solverson, 71 Wis. 663. (a) Statement by the court of the grounds of its ruling as to the competency of evidence is not objectionable as a comment on the evidence. State v. Ruck, 196 Mo. 416, 434; State v. Thomson, 155 Mo. 300. (8) The remarks of the court addressed to defendant's counsel in replying to objection made to the presence of bloody clothes: "The court sees no reason at this time in order to gratify the wish of the attorney while the court thinks no harm done by them, to direct the sheriff to remove them," is not reversible error. State v. Teeter, 239 Mo. 485; State v. Duestrow, 137 Mo. 44, 88; State v. Musick, 101 Mo. 260, 273.

RAILEY, C. White and Reeves, CC., concur. David E. Blair, J., concurs in separate opinion.

OPINION

RAILEY, C. --

On November 6, 1919, the prosecuting attorney of Grundy County, Missouri, filed, in the circuit court of said county, his verified information, charging defendant with murder in the first degree. It is alleged therein that defendant feloniously, etc., shot and killed Leota Marrs, in said county, on October 13, 1919. On February 5, 1920, defendant waived a formal arraignment and entered a plea of not guilty. On February 7th, 1920, after a trial before a jury, the latter returned into court the following verdict:

"We, the jury, find the defendant guilty of murder in the second degree, and assess his punishment at imprisonment in the State Penitentiary for a term of ten years."

Defendant in due time, filed motions for a new trial and in arrest of...