The State v. Gartrell
| Decision Date | 03 February 1903 |
| Citation | 71 S.W. 1045,171 Mo. 489 |
| Parties | THE STATE v. GARTRELL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. W. W. Graves, Judge.
Affirmed.
S. W Dooley, J. F. Smith, T. W. Silvers and Rhodes Clay for appellant.
(1) The case should have been continued on the application of defendant. One of the defenses was defendant's insanity. To prove this he had made an effort to obtain the testimony of Judge Dudley, Doctor Black, his former wife, Mrs. E. G Seligson, his daughter, and Dr. Rhodes. These witnesses lived in different parts of the country and had known defendant under different circumstances. Judge Dudley had known the defendant in California, during the year 1889. Defendant's daughter had been with him in recent years 1895-6-7, in Texas. Doctor Black had treated him in Kansas City during the year 1889. Dr. Rhodes had been his family physician. His former wife was residing in Virginia. These witnesses had had opportunities to observe, at different times, and at different places, the habits and actions of defendant, and each fact would have been a link in the chain of circumstances tending to prove his insanity. The motion for a continuance discloses diligence on the part of defendant and his attorneys in trying to procure the testimony. They had written to where Judge Dudley lived and found that he was in the consular service of the United States, and they had not had sufficient time to procure his address and take his testimony. They had gone to the former residence of Dr. Black and found that he had moved away. They had not been able to learn his address. They had given notice to take the deposition of Miss Gartrell in Texas but were unable to take same on account of her sickness as certified by her attending physician. They had given notice to take the deposition of defendant's former wife, in Virginia, but she, being of an erratic disposition, had refused to testify. This is certified to by the notary. They had a subpoena issued for Doctor Rhodes, of Mexico, Mo., but he was too sick to attend trial. This is sufficient diligence. State v. Whitton, 68 Mo. 95; State v. Hickman, 75 Mo. 460; State v. Anderson, 96 Mo. 250; State v. Klinger, 43 Mo. 127. (2) Assignments two, three, four and five may be considered together. In these assignments, defendant asserts that he did not have a fair trial, on account of passion and prejudice, and that reversible error was committed on account of the unrebuked remarks of the prosecuting attorney and the assistant prosecuting attorney. These remarks were abusive in the extreme, and tended to reflect on defendant's character. The readiness with which the audience applauded the vituperative remarks of the counsel for the State in regard to defendant, disclosed that the courtroom was filled with people clamoring for defendant's conviction. There was an entire absence of that calm, deliberate consideration which should characterize the conduct of a trial. By reference to the record, it appears that the sheriff was unable to control the audience. Under such condition conviction was inevitable. Prosecuting Attorney Horn, in his opening address, characterized the defendant as a "bum." He referred to his clothing as "shabby." He spoke of his condition as being "without means, without support." He referred to defendant's habits as those of a frequent visitor of places "questionable for morality." In his closing address, Assistant Attorney Clark, called the defendant a "murderer," an "assassin," a "snake." All these remarks were excepted to. There was no rebuke of counsel by the court. This court has reversed cases for less reprehensible conduct. In State v. Ulrich, 110 Mo. 350, defendant was called a "sugar-loaf, squirrel-headed Dutchman." Held reversible error. In State v. Fisher, 124 Mo. 460, defendant was referred to as a "contemptible brute, unworthy of the respect of the community." This was held reversible error. In State v. Young, 99 Mo. 666, defendant was characterized as a "low-down, dirty devil." This was held reversible error. In State v. Bobbst, 131 Mo. 328, this language was used, referring to defendant: "This infamous, lecherous scoundrel." Defendant was charged with concubinage. Reversed. In State v. Prendible, 165 Mo. 359, the defendant was referred to as a "loafer." Held error. The prosecuting attorney in this case stated matters not in the record and which could not be testified to under any circumstances. (3) The court erred in permitting W. P. Gartrell to be introduced in evidence. He was jointly indicted with defendant, for the same offense. His case had not been disposed of. He was brought into court, seated by the defendant, and identified by witness Patterson as the party seen in company with defendant. Our statute expressly prohibits a co-indictee, while his case is pending and undisposed of, to testify. If the State could not force W. P. Gartrell to testify verbally, could he be put on exhibition as a link in the chain of testimony against defendant? R. S. 1889, sec. 2636; State v. Chyo Chiagk, 96 Mo. 395. (4) Defendant was clearly entitled to an instruction on manslaughter in the fourth degree, and it was error for the court to fail to give such an instruction and to refuse instructions 22 and 23, asked by defendant on this point. State v. Mathews, 148 Mo. 185; State v. Garrison, 147 Mo. 548; State v. Grugan, 147 Mo. 39; State v. May, 142 Mo. 135. And the fact that defendant claimed the killing was done in self-defense does not deprive him of the right to an instruction on manslaughter. State v. Mathews, 148 Mo. 184. (5) The court should have given an instruction on good character, after a futile attempt by the State to impeach defendant, and the remarks of the prosecuting attorney reflecting on defendant's character. R. S. 1899, sec. 2627; Laws 1901, p. 149. (6) The court should have instructed the jury "that the law of self-defense is applicable alike to the insane as well as to the sane, that both defenses (insanity and self-defense) are consistent, and if the jury find one or both such defenses in favor of the defendant, they should return their verdict of not guilty."
Edward C. Crow, Attorney-General, and C. D. Corum for the State.
(1) (a) Complaint is made that the prosecuting attorney in his opening statement to the jury, denounced the defendant as a "bum," dressed in "shabby" clothes. But such remarks were not objected to, nor was any exception made to their utterance. Defendant also complains that he was prejudiced by the prosecuting attorney's stating that while in Kansas City the defendant frequented places of questionable morality. He did object to these remarks and the objection was sustained. And no exception was taken to the failure of the court to rebuke counsel. (b) As to the statements made by Mr. Clark, who was assisting in the prosecution, it is only necessary to call the court's attention to the fact that the remarks were not properly objected to nor was the court called on to rule whether counsel had overstepped the bounds of legitimate argument. Besides, in calling the defendant a murderer and an assassin counsel only pronounced him what his whole argument was intended to demonstrate him to be. Only on the clearest showing should a judgment be reversed for this cause. The words were not used in a vituperative sense. State v. Griffin, 87 Mo. 608; State v. Ewing, 79 Mo. 463; State v. Musick, 101 Mo. 273. (c) Defendant's guilt was clearly and conclusively shown. In such cases a judgment will not be reversed because of improper remarks of counsel in addressing the jury. State v. Phillips, 160 Mo. 507. (2) No specific objection was made to the competency of Simpson. The specific cause for the challenge should have been given. State v. Evans, 161 Mo. 107; State v. Taylor, 134 Mo. 109. While it is true that juror Bothwell had talked with a witness, it appears that said witness only told him something of the burial of the deceased and that said witness did not undertake to set out any of the facts pertaining to the crime, and that his opinion was not even partially based on what the witness said, but wholly on newspaper reports. He was a competent juror. State v. Hunt, 141 Mo. 630; State v. Duffy, 124 Mo. 1; State v. Williamson, 106 Mo. 162; State v. Bronstine, 147 Mo. 530. (3) No error occurred in permitting defendant's son, who was jointly indicted, to sit where the witnesses might identify him. Had the defendant denied the commission of the crime, or that he was accompanied by the son, the matter might have presented a different phase. But he admitted both. Besides, several witnesses had already testified that they had seen the son at the jail, and that he was the party that they had seen in company with defendant. The court had the right to order that he be brought before the jury that the witnesses might look at him and testify. Attorney-General v. Fadden, 1 Price 403; Rice v. Rice, 1 A. 736. (4) The evidence did not warrant an instruction for manslaughter in the fourth degree. The testimony of defendant did not show that he struck deceased with the ax while in a violent passion. On the other hand, he testified that deceased started towards him with a wrench. His testimony, if believed by the jury, made out a case of self-defense and the jury were so instructed. State v. Sumpter, 153 Mo. 436; State v. Smith, 114 Mo. 406; State v. Sneed, 91 Mo. 522; State v. Meadows, 156 Mo. 116; State v. Ellis, 74 Mo. 207; State v. Lewis, 118 Mo. 82. (5) The instruction on the defense of insanity is a copy of those that have frequently been sanctioned by the court. And the jury were clearly and intelligently advised that they must acquit the defendant if they believed he acted in self-defense, or if he killed deceased at a...
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