The State v. Rumfelt
| Decision Date | 26 May 1910 |
| Citation | 128 S.W. 737,228 Mo. 443 |
| Parties | THE STATE v. MARTIN RUMFELT, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ripley Circuit Court. -- Hon. J. C. Sheppard, Judge.
Affirmed.
Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
(1) The information was not assailed before verdict. The motion in arrest questions its validity. The information charges every element of murder in the first degree. State v Evans, 158 Mo. 592; State v. Gray, 172 Mo. 434. (2) The evidence tended to show that appellant murdered his brother while he slept. Whatever conflict of evidence there was, was settled by the verdict of the jury. State v Miller, 188 Mo. 379; State v. McGee, 188 Mo 409; State v. Smith, 190 Mo. 723. (3) Numerous exceptions were taken to rulings which were too clearly correct to require discussion. (a) Many of the objections were "in the stereotyped form so often condemned" as insufficient. State v. Harris, 199 Mo. 723; State v. Pyles, 209 Mo. 632; State v. West, 95 Mo. 149. (b) In excepting to the exclusion of evidence appellant's counsel in several cases failed to advise the court what the desired evidence was. State v. Foister, 202 Mo. 48; State v. Page, 212 Mo. 237. (c) In other cases the answer was in when the objection was made. State v. Sykes, 191 Mo. 79; State v. Harris, 199 Mo. 723. (d) The state of feeling between appellant and deceased was competent. Underhill on Crim. Ev., secs. 323, 330. (e) The cross-examination of appellant as to the shells was proper. They had been referred to in the direct examination. The cross-examination as to the time of appellant's return to the home was also proper. So was the examination of the appellant as to the lacings of his shoes. State v. Myers, 221 Mo. 612. (f) The questions put to Fugate relative to certain letters, elicited no evidence for or against appellant. In addition, the court specifically advised the jury that they must not consider the questions and answers concerning the letters. The questions were in nowise harmful in the first place. (4) Instruction 1 as to (a) motive, (b) 2 as to the presumption of innocence, (c) 3 and 11 as to conviction on circumstantial evidence, (d) 4 and 10 as to reasonable doubt (when read together), (e) 5 as to previous good character, (f) 6 as to statements of appellant, (g) 7 as to appellant's testimony, (h) 8 as to the credibility of the witnesses, (i) 9 defining terms, (j) 12, as to the substance of the offense, are all in proper and approved form. (a). State v. David, 131 Mo. 396; State v. Foley, 144 Mo. 620. (b). State v. Grant, 152 Mo. 64. (c). State v. Moxley, 102 Mo. 388. (d). State v. Nueslein, 25 Mo. 123; State v. Paxton, 126 Mo. 508; State v. Whalen, 98 Mo. 226. (e). State v. Brooks, 92 Mo. 556. (f). State v. Tobie, 141 Mo. 561. (g). State v. McQuire, 69 Mo. 202; State v. Maupin, 196 Mo. 175. (h). State v. Martin, 124 Mo. 521; State v. Mounce, 106 Mo. 229. (i). State v. Harrod, 102 Mo. 597; State v. Harper, 149 Mo. 520. (j). State v. Thomas, 78 Mo. 342. The instruction as to an additional presumption of innocence, arising from the relationship between appellant and deceased, was error in appellant's favor. State v. Grant, 152 Mo. 68; State v. Soper, 148 Mo. 217. The complaint in the motion for new trial that the court erred "in not giving instructions . . . covering the whole law of the case," is unfounded, in the first place, and, besides, no request for further instructions was made. This ground cannot be considered. State v. Palmer, 161 Mo. 171; State v. Bond, 191 Mo. 563; State v. West, 202 Mo. 137; State v. McCarver, 194 Mo. 742. (5) Appellant complains in his motion for new trial of certain alleged remarks of counsel for the State, asserted in the motion to have been made during the argument of the case. There is nothing in the record, outside the motion, supporting this assignment. It cannot be reviewed. State v. Meals, 184 Mo. 260. The affidavits were merely an effort to use the statement of a juror for the purpose of impeaching his verdict. The trial court quite properly gave no heed to it. State v. Cooper, 85 Mo. 261; State v. Rush, 95 Mo. 205; State v. Sprague, 149 Mo. 424.
This cause is pending upon appeal on the part of the defendant from a judgment of the circuit court of Ripley county, Missouri, convicting him of murder of the first degree.
On the 16th day of February, 1909, the prosecuting attorney of Ripley county filed in the circuit court an information charging appellant with murder in the first degree. At the March term of court appellant waived formal arraignment and entered his plea of not guilty. A jury was forthwith impaneled and sworn and the trial proceeded.
The evidence on the part of the State tended to show that during the year 1908 defendant and his brother, the deceased, lived together, "batched," as the witnesses put it, on a farm in Ripley county, Missouri. Defendant had conveyed his four-fifths interest in the land to deceased; the remaining one-fifth interest belonged already to deceased. The brothers had not been in complete accord concerning their business affairs, and their treatment of each other, according to the witness Moore, their brother-in-law, had not been entirely brotherly for sometime.
On November 12, 1908, some twelve hours prior to the death of Andrew Rumfelt, he and defendant were observed "not to appear right, like they had at other times," and it was noticed that they did not speak to each other.
At about 11 p. m., November 12, 1908, W. A. Moore was aroused by defendant repeatedly calling his name. Moore arose and at his kitchen door met defendant, gun in hand. Defendant told his brother-in-law that he was awakened by the report of a gun; that he supposed his brother was shooting at a stray dog, probably; that he felt to see if his brother was in bed and at that moment a second shot was fired into the bed near his, defendant's head; that he threw back the covers, sprang out of bed, seized his gun and fired, but "did not know which way he shot;" that he got more shells from the mantel, spilling others upon the floor, reloaded his gun and fired at the form of a man going out the door, but "didn't know whether he killed anyone or not." This recital defendant repeated to others later that night.
Defendant was nervous and excited and urged his brother-in-law to go back with him at once to see whether his brother had been killed and whether he had killed anyone with the shots he said he had fired. Moore took defendant's gun from him and unloaded it, taking out a "New Club" shell. Moore then induced defendant to come into the house and then it appeared that he was fully dressed save that he was wearing no hat and that his shoes, though laced to the top, were untied.
By means of the telephone Moore summoned some of his neighbors. To these defendant told his story substantially as he had done to his brother-in-law. Defendant, his brother-in-law and the neighbors who had gathered in, went to the Rumfelt house and there found Andrew Rumfelt dead. The outer door was fastened with a chain. A charge of shot had passed entirely through the head of deceased, having entered about two inches above the left ear and having passed out of the head on the right side, the wound of exit being about six inches long. The left side of deceased's face was powder burned; some of the shot had lodged in the pillow beneath the dead man's head. Another charge had been fired into the end of the pillow slip on the side of the bed not occupied by deceased, passing through the bed and into the wall beneath. Deceased, when found, was lying on his back with his arms folded, the bed covers being "snugly drawn up over him" and "tucked under him on both sides." There were no indications that any one save deceased had occupied the bed that night. The wound in the head was the only evidence of violence on the body of the deceased. An empty "Robin Hood" shotgun shell was found near the head of the bed and an empty "New Club" shell near the door. These shells had the appearance of having been recently fired and were of the same kind and caliber as other loaded shells found in the belt belonging with the defendant's gun and also in a box on the mantel. The "Robin Hood" shell found was like one which Andrew Rumfelt was seen to place in the gun the day before. There was no indication in the room that more than three shots had been fired, though, according to defendant's first story, his unknown assailant had fired two, and he, defendant had fired two. Defendant, while in jail, had an empty shell burned. Defendant, sometime after the killing, stated that he fired only one shot and fired that at a form in the doorway. It appeared that the charge which struck the wall near the door could not have struck where it did had the door been open. The gun identified by defendant as the one used by him on the night of the killing was in evidence, and it was shown that the empty shells found on the floor had been fired from this gun; the impression made by the plunger on the shells in question being somewhat to one side of the usual position, and the plunger on the gun used by defendant being loose in such a way as to strike shells fired by it as those in evidence were struck.
There was also evidence tending to show that in order for the fatal charge to strike deceased as it did it must have passed within an inch of the pillow on which defendant asserted he was lying when his brother was killed. There was other evidence for the State, however, tending to disprove this. The bedding and pillows on the bed on which deceased lay when killed were burned by one of appellant's counsel, and the witness, Moore.
On cross-examination some of the State...
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