The State v. Dunn
| Decision Date | 23 December 1903 |
| Citation | 77 S.W. 848,179 Mo. 95 |
| Parties | THE STATE v. DUNN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Criminal Court. -- Hon. B. J. Casteel, Judge.
Affirmed.
B. M Lockwood and Myron S. Martin for appellant.
(1) The trial court erred in excluding the evidence of defendant himself from the hypothetical question propounded by the defense to the expert, Dr. Dunsmore, and in not permitting the witness to answer the first hypothetical question in which were assumed material facts testified to by defendant. The rule with reference to hypothetical questions is that they may assume any material fact or facts which the evidence in the case proves, or may even tend to prove. Russ v Railroad, 112 Mo. 45; State v. Railroad, 119 Mo. 246; Benjamin v. Railroad, 50 Mo.App. 602; Hicks v. Railroad, 124 Mo. 115. The ruling was in direct violation of section 2637, Revised Statutes 1899 which says that, "no person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination." The defendant in any criminal cause, by this statute, is, so far as the competency of his evidence is concerned, placed on the same basis as any other witness in any given criminal case. State v. Sanders, 106 Mo. 188; State v. Bank, 73 Mo. 592; State v. Palmer, 88 Mo. 572; State v. Patterson, 98 Mo. 283. (2) The court erred in excluding from defendant's hypothetical question propounded to the insanity experts the assumption that there was no motive on the part of defendant for the shooting of deceased, and the court erred in excluding the answer of the experts to the hypothetical question in which it was assumed that there was no motive for the alleged murder. (3) The court erred in allowing the State to reopen its case and to introduce evidence in chief over the objections of defendant. The court in its ruling on this point admits that the evidence was not by way of rebuttal but that it was evidence in chief and highly improper and prejudicial to defendant.
Edward C. Crow, Attorney-General, and Bruce Barnett for the State.
(1) In appellant's brief the contention is made that it was a physical impossibility for defendant to shoot the deceased in the manner and by the means contended by the State and testified to by the State's witnesses. This contention can not be considered. The appellant set up the defense of insanity, and this is tantamount to a plea of confession and avoidance. By interposing such a defense, appellant confessed the commission of the act charged, but denied the criminality thereof, because of incapacity to entertain a criminal intent. The simple and single issue is "insanus vel non." State v. Soper, 148 Mo. 239; State v. Welsor, 117 Mo. 570; State v. Pagels, 92 Mo. 300. (2) There is no substantial evidence in this case indicating insanity. Defendant's own expert witness, Dr. Dunsmore, testified that from his examination of defendant, made after the killing, he found defendant's mind to be in sound condition. An effort was made by the defense to show peculiar acts on the part of defendant during the week preceding the date of the killing, but the acts shown were too slight to be considered even as evidence tending to show or indicate insanity. In answer to a hypothetical question, the expert witness testified that, provided the person described in the question was not intoxicated at the time, he believed he was insane, the disease of lead-poisoning culminating just at that time, and that this could be true although the party was sane up to that time and recovered immediately thereafter. This court has refused to indorse this doctrine that a party may be non compos mentis just at the time of commission of an offense, though sane just before and just after the time. State v. Soper, 148 Mo. 237; State v. Levelle, 34 So. Ca. 131. (3) The state of rage which the defendant was in at the time of the commission of the offense and immediately prior thereto was, no doubt, attributed by the jury to the fact that he was intoxicated. There was ample evidence to justify the jury in believing that he was under the influence of liquor at the time, and this court will not review the evidence upon this point, nor attempt to determine the weight thereof, the finding of the jury thereon being final. State v. Franke, 158 Mo. 589. (4) The court committed no error in permitting the State to reopen its case and introduce evidence in chief out of the regular order and after the close of the defendant's testimony. Such matters are discretionary with the trial court. State v. Warton, 139 Mo. 526.
This is an appeal from a conviction of murder in the first degree.
The defendant was indicted in the criminal court of Buchanan county for the murder of Alfred M. Fenton on the 20th day of July, 1902.
The indictment is sufficient and in the ordinary form. It is not questioned by defendant. The facts out of which this prosecution grew are in substance as follows:
On the night of the homicide the defendant was in Rushville, a town in Buchanan county. About eight o'clock he was in conversation with Hally Conrad, Wez Yazel, Hally Chitwood, Luther Moberly and perhaps other young men of that town about thirty or forty feet from Dr. Culver's drugstore, in said village. Jeff Fenton, a brother of the deceased, was walking along the street, and as he approached the above mentioned group of young men, the defendant was swinging a 38 Colt's revolver on his finger, and turning to Jeff Fenton said, "Hold on a minute; wait a minute and take a drink with me." Fenton replied he didn't care to take a drink, but the defendant insisted, and to prevent trouble Fenton drank with him.
After so doing, defendant pulled Jeff Fenton by the shoulder and told him he liked him and his brother Alf and would die for them; that although they had once had hard words he had since worked for them and was friendly to them now and expected to remain so. Soon, however, this friendly tone changed and he demanded to know of Jeff Fenton where his brother Alf was. Jeff attempted to excuse himself, saying he must go and take his wife and child home, to which defendant replied, "No you won't g -- d d -- n you, you will never take them home again," and placed his hand in his shirt bosom and started to draw his pistol, but Moberly, a deputy sheriff, stepped in and said, "Consider yourself under arrest," and at the same time took defendant's pistol from him. He resisted the officer and the latter called on Conrad to assist in arresting him.
In attempting to subdue defendant Moberly struck him with the revolver. They took him to a justice of the peace, Esquire Allison. The justice ordered him under arrest, and directed the officer to go after Jeff Fenton to make the complaint against defendant for disturbing the peace, and placed defendant in charge of Conrad and Merritt. They, however, released the defendant, who threatened to go home and get his gun and kill both Moberly and Jeff Fenton; that he would kill Moberly if it took him a thousand years. During the time they were at the house of Allison the justice, defendant was very violent and abusive. Mrs. Allison begged him not to use such language, as her mother was old and infirm, and it would frighten her.
At this time defendant had his trunk at the house of Mrs. Mary Stanton, where he stayed a portion of his time, and when Conrad released him he went to Mrs. Stanton's and got his shotgun and left her house.
Returning towards the business portion of the town and carrying his gun in both hands, he met Charles Webb and Robert Page and drew the gun on them and asked who they were, and when they told him he said, "All right; go on." Further on he halted Rev. Mr. Chapman and demanded to know who he was, and when he ascertained said, "Oh, it's the preacher, is it?" and asking to be excused, passed on down the street.
After this he stopped Virgil Morrison about opposite the home of Luther Moberly and thrust his gun in his face, but when he discovered who it was, released him, saying, and then started down the street. He also stopped other citizens in the same manner, and when he found out who they were, said he was looking for Moberly or Jeff Fenton.
Finally he came to where Jeff Fenton, Holly Chitwood, A. F. Shane and others were standing. He went up to Jeff Fenton, working his gun, and said who is that? Fenton replied, "It is me, Mr. Dunn." Defendant then asked "Jeff, have you got anything against me?" to which Fenton answered, "Nothing in the world, Mr. Dunn."
After turning to the others, and finding out who they were, he said, "That is all right." About this time Alf Fenton, the deceased, Charles Sampson and Cy Fisher, drove up in a buggy. The defendant inquired of Jeff Fenton if that was not Alf's buggy, and Jeff said it looked like it. The defendant thereupon stepped out from the shade of the trees in which he was standing, and stopped the horse. He asked, is that you Alf, and Alf answered, "No," and started the horse, but the defendant stopped him again, whereupon Fisher and Sampson got out of the buggy.
The defendant asked Alf Fenton who the parties were who had jumped out of the buggy, and he told him Fisher and Sampson. He then told them to get back and Alf also requested them to do so and they did so.
The defendant then pointed his gun at Alf Fenton, placing the muzzle near to his face. And the latter caught the gun and attempted to push it away, whereupon defendant shot him twice, and Alf Fenton fell out...
To continue reading
Request your trial