The State v. Fenton
| Decision Date | 12 March 1913 |
| Citation | 154 S.W. 51,248 Mo. 482 |
| Parties | THE STATE v. GEORGE FENTON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court. -- Hon. David H. Harris, Judge.
Affirmed.
Harris & Finley and P. H. Cullen for appellant.
(1) The court erred in permitting the prosecuting attorney to make improper and prejudicial statements in his closing argument to the jury. (a) It was the duty of the court to keep the prosecuting attorney within the bounds of legitimate argument and to administer to him such rebuke as was commensurate with the harm done. Evans v. Trenton, 112 Mo. 395; State v. Spivey, 191 Mo. 112. (b) The prosecuting attorney's reference to other cases was altogether outside of the record, was an attempt to discredit insanity as a defense, and was calculated only to prejudice the jury against the defendant. State v. Lee, 66 Mo. 165; State v. Jackson, 95 Mo. 652; State v Woolard, 111 Mo. 255; State v. Hyde, 234 Mo 256. (c) The remarks charged the defendant's attorneys and the alienists with having trumped up the defense of insanity and constitute reversible error. State v Clapper, 203 Mo. 552; State v. King, 174 Mo. 659; State v. McMullin, 170 Mo. 632. (d) The reference to the appearance and demeanor of the defendant was highly improper, for which alone the judgment should be reversed. Perez v. Ter., 94 P. 1097; State v. Bokien, 44 P. 889; Besette v. State, 101 Ind. 85. (e) The error resulting from the prejudicial remarks of the prosecuting attorney was not cured by the admonition of the court to "keep within the record," nor by the fact that the prosecutor said "I beg pardon" when interrupted by defendant's counsel. State v. Ferguson, 152 Mo. 99; State v. Upton, 130 Mo.App. 320; State v. Bobbst, 131 Mo. 339; State v. McGrath, 228 Mo. 429; State v. Deitz, 235 Mo. 341. (2) The verdict is against the weight of the evidence and is the result of passion and prejudice on the part of the jury. (a) The evidence on the part of the defendant was from witnesses who, by reason of their acquaintance and relationship to defendant, were most competent to judge of his sanity or insanity. Knapp v. Trust Co., 199 Mo. 665; Holton v. Cochran, 208 Mo. 417. (b) Under all the facts and circumstances the verdict is against the evidence and must have been the result of passion and prejudice on the part of the jury. State v. Speyer, 207 Mo. 540; 194 Mo. 459, 182 Mo. 77.
Elliott W. Major, Attorney-General, and Alex. Z. Patterson, Assistant Attorney-General, for the State.
(1) It is within the range of legitimate argument for counsel to discuss all inferences which may be drawn from the evidence and to impress them upon the jury. State v. Johns, 124 Mo. 379; State v. Musick, 101 Mo. 260; State v. Mallon, 75 Mo. 355; Lide v. State, 133 Ala. 43; People v. Phelan, 123 Cal. 551; Milan v. State, 108 Ga. 29; Comm. v. Barrows, 176 Mass. 17; People v. Doody, 172 N.Y. 165. (2) That the inferences of counsel are illogical and erroneous neither calls for the court's interference nor warrants a new trial. Scott v. State, 110 Ala. 48; People v. Amaya, 134 Cal. 531; Sterling v. State, 89 Ga. 807; Sage v. State, 127 Ind. 15; Davis v. State, 15 Tex.App. 594; U. S. v. Flowery, 25 Fed. Cas. No. 15,122; 1 Sprague 109. (3) The jury is not bound by the inferences and may reject them. Hence there can be no harm in the court disregarding them. Mitchell v. State, 43 Fla. 584; State v. Toombs, 79 Iowa 741. (4) Matters of common and general public notoriety may be properly commented on and refered to by way of argument or illustration. State v. Punshon, 133 Mo. 44; People v. Bartheman, 120 Cal. 7; Combs v. State, 75 Ind. 215; Turner v. State, 89 Tenn. 547. (5) The conduct of the accused and his counsel during the trial may be commented on without error. Inman v. State, 72 Ga. 269; Norris v. State, 64 S.W. 1044; Thompson v. State, 44 S.W. 837. (6) Interfering with counsel in his argument is discretionary with the court, and the appellate court will not review such discretion unless it appears that the rights of the prisoner were actually prejudiced. State v. Hamilton, 55 Mo. 520; State v. Allen, 45 W.Va. 65; Inman v. State, 72 Ga. 269; Combs v. State, 75 Ind. 215; Ford v. State, 34 Ark. 649; State v. Turner, 36 S.C. 534. (7) The right of counsel in argument to embellish their arguments with illustrations is not governed by any fixed rule, but is controlled by the discretion of the court, and unless such discretion is palpably abused in such a way as to manifestly tend to an improper conviction the exercise of such discretion will not be controlled by the appellate court. Bulliner v. People, 95 Ill. 396; Seibert v. People, 143 Ill. 571; Todd v. State, 44 S.W. 1096. (8) Courts are loath to reverse judgments on account of improper remarks of attorneys -- especially as in this case, where the proof is clear, because in such cases a verdict of guilty would have been returned regardless of the improper remarks. State v. Dietz, 235 Mo. 332; State v. Harvey, 214 Mo. 403; State v. Church, 199 Mo. 605; State v. Hibler, 149 Mo. 478; State v. Summar, 143 Mo. 220; State v. Dusenberry, 112 Mo. 277; Sec. 5115, R.S. 1909. (9) The remark of the prosecuting attorney, first objected to, in which he refers to the celebrated cases in New York and St. Louis in which the defense was insanity, was surely regarding matters of common and public notoriety and proper to discuss. To state that in certain celebrated cases the defense was insanity was but stating that which every one knows and could not have prejudiced the jury. State v. Punshon, 133 Mo. 59; Northington v. State, 14 Lea, 424; Combs v. State, 75 Ind. 219. (10) Insinuating remarks made against the counsel for the accused furnish no ground for reversal, where the court told the prosecuting attorney that his remarks were out of order. State v. Taylor, 134 Mo. 109. (11) Since the conduct of accused might properly be commented on by the prosecuting attorney, it was not error for the prosecuting attorney to state that appellant had sat at the trial apparently not comprehending anything that had occurred. The attitude and conduct of appellant were matters for the jury to consider, and even though the prosecuting attorney drew an erroneous conclusion and inference from such attitude and conduct, yet the statement of such mistaken inferences and conclusions do not constitute such misconduct as will warrant a reversal. State v. Mallon, 75 Mo. 355; Behler v. State, 112 Ind. 140; People v. Bankhart, 59 Cal. 402; People v. Lee, 60 Cal. 95; Spahn v. People, 137 Ill. 538; Sage v. State, 127 Ind. 15; Ross v. State, 57 P. 924 (Wyo.) . And this, for the reason that counsel do not always agree as to what the testimony is. People v. Barnhart, 59 Cal. 402. (12) As a general rule, the withdrawal of the objectionable remarks of the prosecuting attorney, either by himself or by the court, or a direction to disregard them, is deemed to have removed the prejudice and cured the error. State v. Gartrell, 171 Mo. 489; State v. McMullins, 170 Mo. 608; State v. Wright, 141 Mo. 333; State v. Hack, 118 Mo. 92; State v. Gibbs, 10 Mont. 213; Dunlap v. U.S. 165 U.S. 486; People v. Benham, 160 N.Y. 402.
Convicted of murder in the first degree, defendant appeals from a judgment of the circuit court of Boone county fixing his punishment in the penitentiary for the term of his natural life.
Defendant, a widower, age forty-four, with six children, was married to Salina Florence Jordan, a widow, on December 7, 1910. They made their home in the city of Columbia, Missouri, until March 7, 1911, when they separated without any apparent cause. After the separation Mrs. Fenton resided with her sister, Mrs. Herring, in Columbia, at which place defendant, over Mrs. Herring's objections, called upon his wife frequently. In June, 1911, defendant's wife made a visit to relatives in the State of Oklahoma and on the Pacific Coast, returning to the home of Mrs. Herring on September 17, 1911. On the following day defendant called upon her and "requested her to shake hands with him and kiss him as a wife ought to do." Mrs. Fenton shook hands with defendant, but said that she would not be so deceitful as to kiss him. Evidently by this remark she created the impression that she did not intend to resume marital relations with defendant.
Defendant then visited a hardware store, where he purchased a revolver; returned home; put on his best clothes; again called on his wife and shot her three times, killing her instantly.
The defense is insanity, and the only errors complained of are alleged improper remarks of the prosecuting attorney in his closing argument to the jury.
The evidence shows that defendant's mother became insane in the year 1866, following a severe attack of fever; that she was confined in the Fulton insane asylum for nearly a month and then discharged as cured. There is slight evidence that her mind was not right for some years after she was released from the asylum. Defendant was born about fourteen months after his mother was discharged from the asylum.
According to the evidence of defendant's witnesses he seemed to have been greatly depressed in spirits after his wife left him -- was continually referring to her and requesting his friends to intercede for him and persuade her to return to his home. He would not tell anyone why his wife left him and spoke of her in kindly terms, except on one occasion when she refused to sign a deed for some property he had sold. He finally placed his children with relatives and friends with the avowed intention of traveling. Yet he did not leave home.
Mrs Sherman, who resided just across the street from defendant, testified that defendant...
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