The State v. Aurentz

• Decision Date: 25 June 1926
• Docket Number: 26956
• Citation: 286 S.W. 69,315 Mo. 242
• Parties: The State v. George Aurentz, Appellant
• Court: Missouri Supreme Court

286 S.W. 69

315 Mo. 242

The State v. George Aurentz, Appellant

No. 26956

Supreme Court of Missouri

June 25, 1926

Appeal from Greene Circuit Court; Hon. Charles L. Henson, Special Judge.

Affirmed.

L L. Collins and Allen & Allen for appellant.

(1) The remarks of Mr. Hamlin, special prosecutor, calling the defendant a "red-handed murderer," saying "that the defendant never contributed a cent to the cause of God Almighty" and "there is no evidence that he ever contributed a penny to the cause of morality or upbuilding of society in Greene County or anywhere else," and the further words, "the evidence wholly fails to show where he has hit a tap, except to violate the Constitution of the United States, and has been convicted in Federal Court," to all of which the defendant objected and appellant contends that the wrong it accomplished was not cured by the words, suggestions or admonitions of the court. State v. Ferguson, 152 Mo. 92; State v Reppley, 278 Mo. 342. A prosecutor is out of order when he expresses a belief in the guilt of the defendant, and such assertion on his part requires a rebuke by the court. State v. Hess, 240 Mo. 159; State v. Webb, 254 Mo. 435; State v. Baker, 246 Mo. 376. (2) The instruction upon murder in the second degree purporting to contain all the issues was erroneous, in that it excluded the theory of reasonable doubt, sufficient cause, reason or provocation, and also excluded the theory of self-defense, except by reference to Instruction 2, condemned by this court in the former trial. The instruction omitted the question of reasonable doubt, and omitted the theory of self-defense, except to refer to the instruction on self-defense condemned by this court. State v. Helton, 234 Mo. 559; State v. Stubblefield, 239 Mo. 526; State v. Gabriel, 256 S.W. 767. (3) Instruction 2, on the subject of self-defense, was complained of at the previous hearing in this court, for the reason that it was argumentative, gave undue prominence and emphasis to the negative of the question of reasonable cause of the defendant to believe himself in danger, on account and by reason of the conclusion of said instruction. (4) The lower court must comply with the directions contained in the opinion of this court, and the Supreme Court's ruling on a first appeal is the law of the case, and the trial court must be controlled thereby. State v. Liolios, 252 S.W. 621; Railroad v. Bridge Co., 215 Mo. 286; Gracey v. St. Louis, 221 Mo. 1; Meriwether v. Publishers, 224 Mo. 617; Murphy v. Barron, 286 Mo. 390; Marston v. Catterlin, 290 Mo. 185.

North T. Gentry, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) It was not error to permit the State to indorse the name of witness Welch on the information and allow him to testify, under the showing made by the State. Sec. 3889, R. S. 1919; State v. Jeffries, 210 Mo. 324; State v. Lassieur, 242 S.W. 902. (a) The scope of rebuttal testimony is largely within the discretion of the trial judge. The admission of the testimony of Crow was not error. No objection was made at the time to the admission of the testimony of Mrs. Crow, hence not reviewable. State v. Murphy, 292 Mo. 291. (b) The question "You heard the jury had given him twenty-five years in the pen," asked witness Tiller and complained of, was on cross-examination. Appellant's objection was sustained and counsel admonished to desist in asking such questions and the jury was instructed to disregard same. No exception was saved to the court's action in admonishing counsel and directing the jury not to consider same. (2) Remarks of counsel must be prejudicial to appellant in order to justify a reversal. Objections to the remarks of Mr. Hamlin, complained of in appellant's motion for a new trial, were either sustained without exception to the court's action as to a sufficient reprimand, or were within ligitimate argument or proper inferences from the evidence and in answer to arguments of counsel for appellant, and hence not reversible error. State v. Harvey, 214 Mo. 411; State v. Johnson, 252 S.W. 624-5. (3) Instruction 1 is correct. State v. Hembree, 242 S.W. 914; State v. Emory, 246 S.W. 951-2. (4) Instruction 2 properly declares the law of self-defense. State v. Gee, 85 Mo. 652; State v. Parker, 106 Mo. 224-5; State v. Parmenter, 278 Mo. 540. (5) The failure to give an instruction on manslaughter was not error since there is no evidence in the case warranting it. State v. Aurentz, 263 S.W. 182. (6) There is no evidence in the record warranting an instruction that appellant had a right to shoot deceased to protect his sister. His sole defense was that of self-defense. (7) Reading the given instructions together as a whole, as must be done, they clearly and correctly state the law of this case.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

The information, filed November 17, 1922, charges defendant with murder in the first degree. On a trial he was found guilty of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of twenty-five years. The conviction was reversed and the cause remanded. [State v. Aurentz, 263 S.W. 178.] On the second trial the defendant was again found guilty of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of twenty years, from which he appealed. The statement by the Attorney-General fairly outlines the facts, as follows:

The evidence on behalf of the State tended to prove the following:

On the night of August 14, 1922, in Greene County, Missouri, there was a dance in the dancing pavilion at Percy's Cave, eight miles from Springfield, owned and operated by J. W. Crow, who lived about one hundred and fifty feet from said pavilion, which was lighted by electricity.

The deceased, Ernest Cameron, and his wife, Eva, a sister of appellant, after supper that evening in Springfield, drove with some friends in a car to Percy's Cave to attend the dance. Appellant in his car, accompanied by some friends, also left Springfield about the same time for the same place for the same purpose, and all friendly and apparently in good spirits. Appellant arrived first, and when deceased and party arrived and got out of their car appellant offered them a drink. Deceased declined, but his wife accepted. The cars, with others, were parked near the public highway about thirty feet from the pavilion. These parties then went down to the pavilion where the dancing was then in progress. It appears that soon afterwards some difficulty arose on the dance floor between deceased and his wife. Appellant remarked that, "If these kids don't quit their argument, I am going to kill him" (Cameron).

Presently deceased left the dance floor and went up to where the cars were parked, and later came back and in a few minutes returned to the cars, taking his wife with him. As they proceeded towards the cars it appears that Mrs. Cameron picked up a rock or some gravel and threw it at her husband as he ran along ahead of her, remarking as she did so, "You cowardly s o b , run."

Appellant followed them up to the cars in a minute or two, and when he arrived deceased was standing almost in front of and near a car, smoking a cigarette. Appellant stopped four or five feet in front of deceased and as he stood looking toward deceased, the latter facing appellant, appellant said, "You d little s of b I'm going to shoot you," and drew a pistol and began firing. Cameron turned like he was starting to walk away and fell and died shortly thereafter. Deceased had said nothing to appellant preceding the shooting. Three shots were fired in rapid succession, one making a flesh wound in the shoulder, and another striking the vertebra and severing the spinal cord, which produced death. When the body of deceased was searched soon after, a pocket knife, a watch and some empty cigarette packages were found on him, but no weapon.

After the shooting appellant said, "If there is anybody here that wants to take it up, let him step out." No one stepped out, and appellant walked away into the brush with his gun in his hand. Appellant had checked his pistol with young Crow at the refreshment stand in one corner of the pavilion shortly after arriving, but called for it just prior to the shooting.

The testimony on the part of defendant tended to prove the following:

It was shown that deceased, at different times prior to the homicide, had difficulty with appellant and had threatened to kill him.

Appellant, a single man, lived with his mother in Springfield and on the night of this tragedy took supper at the Yancey home, a neighbor, and afterward, about 8:30, he, together with four others, started in his car to Percy's Cave, arriving there about thirty minutes later. After parking his car they went to the dancing pavilion and danced until about 10:45, when Mr. Crow, the owner and proprietor, stopped the music and dancing. Previous to this time appellant saw deceased, who was his brother-in-law, strike his wife while they were on the platform. The latter appealed to appellant for protection, but appellant told her he didn't want to get mixed up in their affairs, and did nothing.

Deceased and his wife then left the dancing floor and started up toward the cars, and later came back, and then again returned toward the cars. This time deceased was jerking his wife along up the hill and beating her. Appellant and a young woman then went on up the hill in the same direction, and appellant's attention was attracted by deceased fighting his wife, and the latter said to appellant, "George make him quit this." Appellant said, "Ernest. don't hit her any more." Deceased replied, "You are the s o b I want," and made a move with his hand toward his hip pocket and ...