The State v. Burns

• Decision Date: 07 March 1921
• Citation: The State v. Burns, 228 S.W. 766, 286 Mo. 665 (Mo. 1921)
• Parties: THE STATE v. ERNEST BURNS, Appellant
• Court: Missouri Supreme Court

228 S.W. 766

286 Mo. 665

THE STATE v. ERNEST BURNS, Appellant

Supreme Court of Missouri, Second Division

March 7, 1921

Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.

Reversed and remanded.

McKap & Medling and Ward & Reeves for appellant.

(1) The court erred in refusing to rebuke the prosecuting attorney for continuously asking questions that this court had held was reversible error in the former trial. State v Burns, 213 S.W. 116. (2) The court erred in refusing to rebuke J. S. Gossom, hired counsel for State, for an unwarranted attack upon defendant and statements out of the record in his closing argument to the jury. State v Davis, 217 S.W. 91; State v. Dozier, 177 S.W. 360; State v. Spivey, 191 Mo. 112; State v. Reppley, 213 S.W. 480. (3) The court erred in refusing to permit the defendant to show why he had a pistol on the occasion in question.

Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.

(1) Error cannot be predicated upon sustained objections. State v. Miles, 199 Mo. 560; State v. Grant, 144 Mo. 65; State v. Brown, 181 Mo. 213; State v. Burns, 278 Mo. 446. (2) The trial court properly excluded the evidence offered by appellant tending to show why he carried a pistol. State v. Ruck, 194 Mo. 434. (3) It is within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence. 16 C. J. sec. 2240; State v. Dyer, 139 Mo. 212; State v. Musick, 101 Mo. 274; State v. Johns, 124 Mo. 386; State v. Harrison, 263 Mo. 659.

RAILEY, C. White and Mozley, CC., concur.

OPINION

RAILEY, C.

This case was here upon a former appeal and was reversed and remanded on account of errors committed during the progress of the trial. It will be found reported in 278 Mo. 441, 213 S.W. 114. The facts relating to the homicide are not materially different from what they were in the former trial.

The evidence on behalf of the State, briefly stated, tends to show, in substance, that A. P. Bumpas lived at the town of Cooter, in Pemiscot County, Missouri; that his wife was in charge of the post office in said town, and that, with his wife and two children, they lived in the building occupied as a post office; that defendant, on September 27, 1917, the day of the homicide, and prior thereto, was a mail carrier between the towns of Steele, Cooter and Tyler; that, on said date, defendant and deceased were not on friendly terms; that in the usual course of business in carrying the mail, defendant usually remained at Cooter about one hour; that, on said 27th day of September, 1917, defendant had been at the post office about one hour waiting for the mail to be made up; that during that time, the deceased, A. P. Bumpas, had been out in his back yard, and came into the house about the time defendant was starting out to his Ford car, in which he carried the mail, with a mail sack in each hand; deceased followed him out on the porch, cursed him, told him to get out of there and quit hanging around his family, etc. Some evidence on the part of the State tended to show that, at this time, defendant also had a pistol in one hand with the mail sack. Defendant's evidence tends to show that he had no pistol at that time, and that his pistol was in the car. At any rate, defendant went on the opposite side of said car from deceased, and was putting the mail sacks in the car. Defendant testified that deceased had a pistol when they came out on the porch, with deceased following behind. There is some evidence of the State contradicting this, and tending to show that deceased did not go into the house and get his pistol until the first shot had been fired by defendant, while behind his car, with a small pistol. The evidence is clear that defendant fired the first shot. He testified that in getting his pistol it went off accidentally, and that he did not shoot at deceased. Several witnesses for the State testified that defendant fired this shot, but they did not say he fired at deceased. The evidence tends to show that deceased then had a pistol in his hand, or ran in immediately after this first shot, got his pistol, returned to the door and shot at defendant. The latter then shot twice at deceased, one shot taking effect, from which he soon died.

The jury found defendant guilty, and assessed his punishment at ten years in the penitentiary. Defendant, in due time, filed motions for a new trial and in arrest of judgment, both of which were overruled, and the cause was duly appealed by him to this court.

The defendant objected to all the instructions given by the court, and excepted to the action of the court in refusing to give those asked by him.

The instructions given and refused, as well as the other matters complained of by defendant, will be considered, as far as necessary, in the opinion.

I. Appellant complains of the action of the trial court in refusing to rebuke the prosecuting attorney, for knowingly and intentionally bringing before the jury evidence which this court in the former appeal held was improper, for the purpose of creating, in the minds of the jurors trying the case, the impression that defendant had been too intimate with the wife of deceased and had broken up the home of the latter, when no such issue was presented in the case, nor was there any evidence in the cause which warranted any such insinuation.

In disposing of the case upon the former appeal (213 S.W. 116), we said:

"When the witnesses arrived, they found Bumpas on the floor. Mrs. Bumpas refused to allow him to be put on the bed. It was shown, over the objection and exception of the defendant, that she said he should not be put on her bed; a man that would act like he had. If he would explain to the crowd why he had done that, and he was justified, she would let him be put on the bed; but she would not if he did not. . . .

"I. Error is assigned to the admission by the court of the statement of Mrs. Bumpas explaining why she refused to let her wounded husband be put on her bed. This statement was clearly hearsay. While the matter of the statement tended to exculpate the defendant and put the blame of the encounter upon her husband, it further tended to show her partiality for the defendant, and would undoubtedly have a tendency to prejudice the jury against him. Mrs. Bumpas was not a witness, and it was not admissible for the purpose of showing her bias in the case. It was not res gestae, and incompetent on any theory. . . . The statements of Mrs. Bumpas occurred several minutes after her husband was shot and after the neighbors had come in. It was her deliberate explanation of her attitude in the matter. It was, in fact, an argument showing why she did not want her wounded husband placed on her bed."

The defendant was outside the building and was not present when the above conversation occurred. She was evidently smarting under the insinuation cast upon her character by the husband, when he said to defendant, as told by Travis: "From now on, you bring the mail and come and get your mail and go about your business, and don't be hanging about my family."

When the case came up for trial, after the former reversal, the mandate and opinion of this court were on file in the circuit court. It is fair to assume that in the re-trial of the case the judge of the court, the prosecuting attorney and the counsel upon both sides must have been familiar with the language of this court, heretofore quoted, in respect to the above testimony. In utter disregard of our former ruling, the prosecuting attorney, examined Oscar Kearney, a witness for the State, and the following occurred:

"A. We carried Mr. Bumpas in the other room.

"Q. Then what did you do? A. Well, I don't know that we did anything; only tried to administer to him right then and get a doctor, and then I went back to the Supply Store.

"Q. Where did you put him? A. On the floor --

"Mr. Ward: I object, wholly immaterial and wouldn't bind the defendant.

"The Court: Sustain the objection.

"Mr. Bragg: Right immediately after this was done, just showing their actions --

"The Court: If you gentlemen want to reverse this case, let's quit trying it right now.

"Q. Did you see his wife there? A. Yes, sir.

"Q. Did you have any conversation with his wife?

"Mr. Ward: I object to that, wouldn't bind the defendant, any conversation between this witness and the deceased's wife.

"The Court: Sustained.

"Q. Ask you whether or not his wife at the time refused to let you put him on a bed?

"Mr. Ward: I object, and ask that counsel for the State be rebuked for asking that kind of a question.

"The Court: I'll sustain the objection.

"Q. How long was that after the shooting?

"Mr. Ward: We except to the Court refusing to rebuke counsel.

"The Court: The Court will permit you to go ahead and rebuke him right away; is there anything further?

"The Court: Mr. Bragg, the Court has told you and has said two or three times that isn't competent and the Court now admonishes you not to take up my time in asking questions which the Supreme Court has expressly held as not being competent and -- for two reasons, one is, we want to respect the ruling of the Supreme Court, which is the law in this case, and the other is we don't want to waste our time by unnecessary questions where objections would be made and the Court would have to sustain them."

Mrs Bumpas was not a witness in the case. The question as to whether defendant had ever had any improper relations with the wife of deceased was not an issue in the case, and could not, on the record before us, have been made an issue herein. There is no evidence in the record tending to...