The State v. Joy

• Decision Date: 28 May 1926
• Docket Number: 26908
• Citation: 285 S.W. 489,315 Mo. 7
• Parties: The State v. Hillory Joy, Appellant
• Court: Missouri Supreme Court

285 S.W. 489

315 Mo. 7

The State v. Hillory Joy, Appellant

No. 26908

Supreme Court of Missouri

May 28, 1926

Appeal from Boone Circuit Court; Hon. David H. Harris Judge.

Reversed.

Harris & Price and Cave & Cuthbertson for appellant.

(1) The court erred in refusing to sustain the demurrer offered by defendant at the close of all the evidence, because there was no substantial evidence to sustain a conviction of the defendant for murder, either in the first or second decree. State v. Goldstein, 225 S.W. 911; State v Gordon, 199 Mo. 561; State v. Francis, 199 Mo 671; State v. King, 174 Mo. 662; State v. Staats, 246 S.W. 953; State v. Singleton, 243 S.W. 147; State v. Tracy, 284 Mo. 619; State v. Wheaton, 221 S.W. 26; State v. Bass, 251 Mo. 107; State v. Ruckman, 253 Mo. 500; State v. Kelsay, 228 S.W. 754; State v. Nave, 222 S.W. 744; State v. Adkins, 222 S.W. 432; State v. Hollis, 225 S.W. 952; State v. Anderson, 225 S.W. 896; State v. Welton, 225 S.W. 965; State v. Jaeger, 66 Mo. 179; State v. Packwood, 26 Mo. 363. (2) A verdict of guilty cannot stand if it is based upon suspicion or arrived at by the process of elimination. State v. Ridge, 275 S.W. 59; State v. Ballard, 104 Mo. 637; State v. Woodson, 175 Mo.App. 393; State v. Scott, 177 Mo. 672. (3) The verdict of the jury is unsupported by the evidence and is manifestly the result of prejudice, passion and partiality. State v. O'Kelly and Fitch, 258 Mo. 351; State v. Webb, 254 Mo. 414; State v. Prindible, 165 Mo. 353; State v. Primm, 98 Mo. 368; State v. Castor, 93 Mo. 243; State v. Jaeger, 66 Mo. 173; State v. Burdorf, 53 Mo. 65; State v. Marshall, 47 Mo. 378; State v. Daubert, 42 Mo. 238; State v. Mansfield, 41 Mo. 70; State v. Brosius, 39 Mo. 534; State v. Packwood, 26 Mo. 340. (4) The court erred in giving the State's instruction on murder in the second degree, and in refusing to give the instruction offered on the part of the defendant which was in the nature of a demurrer, telling the jury that they could not convict the defendant of murder in the second degree. State v. Swearengin, 190 S.W. 271; State v. Harris, 177 S.W. 364; State v. Evans, 124 Mo. 397; State v. Tabor, 95 Mo. 585.

North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.

(1) There was sufficient evidence upon which to base an instruction on second degree murder. Whether the homicide is or is not characterized by deliberation is a question for the jury submitted under proper instructions. State v. Snow, 293 Mo. 193; State v. Kyles, 247 Mo. 640; State v. Liolios, 285 Mo. 1; State v. Young, 119 Mo. 495. Furthermore if the evidence showed a case of first degree murder only, the giving of an instruction on murder in the second degree is not an error of which defendant can complain. State v. Bell, 136 Mo. 120; State v. Todd, 194 Mo. 377; 21 A. L. R. p. 626; 16 C. J. sec. 2452, p. 1024. (2) The court committed no error in overruling defendant's demurrer. There was sufficient evidence to prove the corpus delicti and to take the case to the jury. State v. Barrington, 198 Mo. 110; State v. Hall, 231 S.W. 1001; State v. Concelia, 250 Mo. 411; State v. Poor, 228 S.W. 812; State v. Bowman, 294 Mo. 245; State v. Page, 212 Mo. 242; State v. Sassaman, 214 Mo. 738. A conviction may be supported by circumstantial evidence. State v. Hall, 231 S.W. 1001; State v. Barrington, 198 Mo. 110. There is no hard-and-fast rule as to the sufficiency of the evidence to make a case for the jury, and each case must stand upon its own facts. State v. Bowman, 294 Mo. 245.

Walker, P. J. Blair, J., concurs in a separate opinion; White, J., concurs in the result.

OPINION

WALKER

The defendant was charged by information in the Circuit Court of Callaway County with murder in the first degree. He was tried in the Circuit Court of Boone County, convicted of murder in the second degree, and sentenced to thirty-five years' imprisonment in the penitentiary. From this judgment he appeals.

On March 6, 1924, Mrs. Susan Joy, wife of the defendant, was found at about 10:15 o'clock at night sitting on the floor beside her bed in an upstairs room of the residence of herself and her husband, the defendant, bleeding profusely from the mouth and nose. She died almost immediately after being discovered, without having spoken.

The day following an inquest was held by the coroner, who after hearing several witnesses took the defendant into custody, brought him to Fulton and delivered him to the prosecuting attorney. The latter filed a complaint before a justice of the peace, charging the defendant with having killed his wife. A preliminary hearing was had and the defendant was bound over to answer in the circuit court. On March 21, 1924, the prosecuting attorney filed an information in the circuit court charging the defendant with murder in the first degree. The cause was continued twice thereafter on the application of the State. On September 1, 1924, defendant applied for and was granted a change of venue to the Circuit Court of Boone County. In that court the case was continued from term to term until April, 1925, when it was tried, resulting in a verdict and sentence as stated.

The defendant and his wife were beyond middle age, he being fifty-five and his wife fifty-four years old. They had been married about twelve years, and no children had been born to them. At the time of the tragedy they lived on a farm about three miles west of Auxvasse. Ben Joy, an uncle of the defendant, and a Mrs. Nagel, a sister of Mrs. Joy, lived with them. Ben Joy was an old bachelor and had been living with them about five years. He is referred to in the record as "Uncle Ben." Mrs. Nagel, who was a widow, had been visiting them for about three months. These parties were all at the house the night of the tragedy. For some time prior thereto the defendant had suffered with neuritis in one of his feet. On the afternoon before the murder the defendant, his wife and Ben Joy went to Auxvasse. They returned about four o'clock and an hour or more later the three and Mrs. Nagel ate their evening meal. While at the table something was said in regard to the sale of a small interest in some land Mrs. Joy owned in Kansas, and the defendant declared that he would not join in the deed at the price she was offered. No controversy followed this declaration. When the meal was finished, the dishes washed, the cow milked by Mrs. Joy, and the chores necessary to be performed at a country home had been attended to by Ben Joy, these four persons sat around the stove in what was the living and dining room and engaged in general conversation until almost nine o'clock, when Ben Joy went upstairs to bed and later Mrs. Nagel also retired, leaving the defendant and his wife sitting by the stove. The house was a story-and-a-half frame building, consisting of three rooms on the first floor and three on the second. To reach the latter it was necessary to ascend seven steps to a platform about three feet wide and four feet long, across which, in front of the entrance to the platform, a curtain was suspended to serve the purpose of a door in obstructing the view from the space beyond. Two short flights of stairs of three or four steps each led from this platform to the rooms above; the flight on the right led to the room of Ben Joy, and the one on the left to the room of the defendant and his wife and to the adjoining room occupied by Mrs. Nagel. The latter testified that when she went up to her room the defendant and his wife were sitting near each other by the stove, conversing and apparently in a good humor, which had characterized their conduct towards each other during the evening. When Mrs. Nagel went to her room she placed a lighted lamp on a stand in such a position that it would shine through an open doorway between her room and that of her sister and the defendant, and left it burning to light them to bed. After retiring she heard no sound of any kind until a short time after ten o'clock, when she heard her sister call her name. She arose, went into her sister's room and found the latter sitting on the floor beside her bed with her head and shoulders resting on the bed and blood gushing from her mouth and nose. Mrs. Nagel hysterically began to call for Ben Joy and the defendant. The former being nearest came first, followed by the defendant, who almost immediately came from the dining room downstairs, carrying the lighted lamp which had been sitting on the dining room table where his wife had left him when she started upstairs. When defendant saw his wife's condition he fell on his knees, took her in his arms and begged her to tell him what was the matter. She was then in her death throes and died while they were gathered around her without being able to make a response.

Ben Joy testified that he was awakened by the voices of the defendant and his wife conversing with each other; that the former, among other things, remarked that "Uncle Ben talked too much," whereupon he, the witness, in a loud tone, called his nephew a liar and the latter applied a like epithet to him; that the defendant and his wife, when the witness heard them talking, were down in the dining room where he had left them when he retired; that soon thereafter he heard someone coming up the first flight of steps to the platform and when he asked who it was Mrs. Joy answered, "Oh! It's me, Uncle Ben," and that he heard her turn and go up the short flight of steps into her room; that quickly thereafter he heard Mrs. Nagel calling for him and the defendant to come and he went; that he heard no one coming up the stairs before Mrs. Joy answered him.

The defendant testified that after Ben Joy and Mrs. Nagel had gone to their rooms his wife dressed his afflicted foot...