*1 773 (2d)W. S. 51. Allison, Appellant. Arthur The State Two, 10, 1932. June Division Bradley & Bradley Langdon B. Jones appellant.
Stratton Shartel, Attorney-General, Sloat, Walter E. Assistant Attorney-General, respondent. *4 County defendant of Dunklin
COOLEY, C. In the Circuit Court degree the in first by with murder the charged wms information was wife, Allison. He county of Pearl alleged killing in his said years’ degree in and sentenced to ten of murder the second convicted deceased appealed. has The imprisonment penitentiary in the and discharge shotgun proximity a fired in by of close the was killed shooting. defendant, one, wras unless it witnessed the head. No her the shot; fired the of theory is of the State The suicide. Mrs. Allison committed defense that a young children, in with their three Allison, Mrs. resided Mr. and Kennett, from Missouri. The four miles about small house frame in family sleeping room and which th" by as a occupied the room the corner of house. West in northeast shooting was the occurred by unplastered partition wms a room it an separated from of and appears It there Payton. w'as occupied lodger, no by then a one door rooms, being through between opening those two each entered door into it from a room to the south. The room was and northeast eleven one-half square. or twelve feet windows, It had two north one on the and side, being one on the east latter south- the somewhat nearer the east than the northeast in corner of the room. There w'ere two beds room, the corner, one in the northeast the in the and other northwest each practically leaving with north, the walls head to the its space some two feet "widebetween the beds.
About midnight of 23, 1929, neighbors June of were the Allisons aroused defendant and wife De- informed that his was dead. ceased was lying found in across the foot of the bed situated the v'ery northeast corner of was the room Her above described. head near the window, east somewhat nearer than north side the south thereof, with hanging projecting opposite the feet or over the side of the bed. head upon pillows The rested two it six elevated top inches or so above level of the bed. The of the was about bed lay top two feet above the floor. Deceased on her back on the bed- of covering was clad in vest and and bloomers. On the bed near right lay single-barrelled her shotgun, side its to ten muzzle six inches parallel body, from her head. It was with the the butt stock or somewhat of body more the north than the being, loosely lay muzzle. or, it, The barrel put across some witnesses grasped gripped right A stick, deceased’s hand. described —not —in golf “toy stick,” lay gun as a beside the with the knob curved or guard end in trigger gun trigger and front body. lay other end near across Some deceased’s left hand which her evidence indicated that with the end the stick -was contact de- though, gun, grasped tightly. ceased’s left hand like charge gun The from the had struck head deceased’s somewhere along right temple practically side or off and had blown top right charge side of her head above the where the struck. cavity The entire contents of the cranial had been blown out. upon pillow's bedcov'ering, Blood and brains were on found beneath, window sill the floor east wall of the room spat- south to the from the window southeast corner the room particles brain with blood substance. The stains on the tered eight ceiling wall or extended to the seven one-half from the feet floor, on the south win- and some found wall near the corner. The panes dow closed and were not broken. The on blood stains witnesses, wall, gun as described indicate that when fired the *5 pointed upward must have been somewhat toward the southeast and horizontally than rather or downward. The of one of the witnesses, Presnail, Dr. who saw State’s the blood stains on the walls given hypothetical questions pro- was had by the effect the shot skull, expressed opinion gun duced on deceased’s the that the would not have had sufficient for phenomena elevation account if all the lying deceased had been pillows down with her head the on six inches above the bed and with gun the butt of the on the bed discharged, when but sitting that if she was on bed elevation the the sitting, would have been sufficient; that, body prob- the would ably have fallen backwards with muscles paralyzing from the relaxed effect of the wound. inquest night A by coroner’s light was held that at the house the witnesses, lay
of lamp. coal oil a Several of whom been some had -jury, they on the coroner’s testified powder that did observe not they they burns face on or but deceased’s head had also said closely thought powder mind, looked with of the or the burns in admittedly light bright and very was not the had not been blood washed from There was that there deceased’s face. evidence some right below practically oh the side of face no blood deceased’s wound; there. the other that there were of blood evidence streaks Admittedly the part of the of the the head above of entrance was blown away. shot of objections
Over the of State evidence the introduced shortly who experiments by certain the witnesses made before trial demon- experts, purpose were not and be of did claim to the dis- strating the near effect, especially powder burns, the of' using found charge gun shells killed, with which deceased discharging the experiments house. the Some of those consisted cardboard, the gun against target pasted upon cotton a made of gun held target being against the the muzzle of placed a tree and target, near against “as varying practically at from distances by gun firing the could,” made Others were as we to several -feet. with tomatoes. cans filled against at small tin tomato similar distances body “dressed, picked of a firing it Others consisted of laying gun on by down made chicken.” Still others were pur- for the discharged, latter causing smooth board and it to be called Testimony doctors pose noting the distance of the recoil. dissimilarity, substantial State Would be indicated there cov- otherwise, a cotton between powder burn indications especially that skull, human target placed against a tree ered deceased; also hair, as was complexioned woman with dark a dark skull from human can with was dissimilar that a tin filled tomatoes when reaction a different probably show its contents and would may observed although be charge gun, from struck dis- can to the tomato gun close the muzzle of held when The deceased. skull of had pieces as it done charge blew it to gun recoil of obvious, that the be showed, as would also if the than board smooth upon a greater laid down when would *6 .77.9 butt resting upon the bedclothes, angle at from the probably an position, horizontal especially by and if held the hand of deceased for purpose discharging her head. tending
As to show indicating motive there was some evidence that twice, years once or several previously, defendant, deceased had left remaining day away, however, a night about and on each occas- ion; Saturday, that on gone 22, June had to she her mother’s intend- ing not to though return she' volition; had returned her own that she carried $2,000 insurance on life, husband; her her payable to and evening that Sunday toward question of the pro- defendant had posed young a Fields, years to man eighteen named age, about he, that Fields, if kill would mother, either defendant’s or wife her give $1,000 defendant would him and a -Ford car. Defendant had ’ a Ford ear according testimony and to proposed get Fields he to $1,000 from his According.to testimony wife’s insurance. Fields’ explain expected get defendant did not how he to $1,000, a sum beyond far his resources, if should kill Clay, Fields Mrs. the mother- in-law, and it was killed, immaterial to defendant which one Fields by the reason assigned being if defendant wife that were killed get he would his back if children and her mother were killed he would get back both wife and children. was impeached Fields for truth veracity by witnesses, being numerous no witness called to rebut testimony that reputation. as to his gone
Defendant in his own behalf that his wife had: testified to her Saturday mother’s on with a sister and the latter’s-husband return; had sent back word that she would not that he saw and there, Sunday acrimony side, talked with her without on either on morning, appeared at which time she disinclined to return and he told change if her that her cow she did her mind send he would might so that she and Clay, the children have milk. Mrs. witness State, promise as to the to send the corroborated cow, only part of the Defendant conversation she had heard. Sunday evening; that further testified that his wife returned home night that he and she talked matters over and she became reconciled remain; they agreed to bed with to that when retired he went year old, in of the the bed in the northwest corner baby, about lay foot of room, down across the and that his wife undressed expressing the in children, slept the other bed in which the tu'O older warm; midnight night about sleeping tention there as by shot gunshot, that his wife had discovered he was awakened then ran herself, Payton’s him and room and informed hurried The latter neighbor’s what had occurred. informed them to a neighbors who he aroused and whom statement confirmed though agitated. Payton, held undei greatly that he seemed testified either side. State, called recognizance as a witness Defendant denied Fields’ about tbe him to kill pay offer Clay Mrs. or Mrs. Allison. He testified that remarked to Fields he give he would it if his thousand dollars he had wife would stay with him contented, to Fields was all he had said *7 subject. on the tending prove
Defendant introduced evidence to that for several and, despondent months before her death Mrs. Allison had been though ill, apparently weight. considerably had lost gave $80
There jail was that while confined in defendant evidence prisoner try to a Hill Fields named Hill to induce was to change story, having to it as knew. his he told to the defendant officers money it was a giving Defendant admitted Hill to but claimed loan enable Hill his pay to to fine. feeling between previous difficulty was
There no evidence of or ill nor, short defendant and his mother-in-law except previous for the wit- separations mentioned, All the between defendant and his Wife. subject always treated who testified on the nesses said that defendant affectionately witnesses Many his wife and seemed devoted to her. reputation good. peaceable law-abiding testified that as a was his man That evidence was not controverted. Appellant
I. evidence contends that his demurrer to should his com have been of sustained; for which reason and because noted, plaint experiments of of above admission of the evidence fully. concedes we have practically outlined the He evidence rather testimony made the State given that if can credence be Fields’ to thoroughly im so submissible argues ease but he Fields contra of full testimony and so peached improbable and his was so evi to sustantial amount dictions that is unbelieveable and does ’ case, testimony in agree. this cannot With Fields dence. To w'e sub any no doubt consideration, if it there can be is entitled to testimony impeaching missibility concerns of the case. So far as jury. As for the question testimony credibility Fields’ was a of set them attempting to testimony, without in his to the contradictions holding inus to justify detail, such as do not consider them out w'e his testi destroy value probative law, they a matter of that as officers, then to the mony. times, first repeated story his He several trial. again at hearing and preliminary three times at the two or In details. minor mostly toas complained of The contradictions sounds That it fairly well. story features he stuck to his its essential expressed improbable, in the statement particularly, prefer without killed mother-in-law wife or to have either his desire some also There may which, to be conceded. ence all those But defendant. against grudge indicating bore a that Fields 781 credibility considerations affected weight of his were for jury. the determination We rule this appellant. urged It is II. that the admission of relat the evidence
ing experiments showing experi and the exhibits the results of the ments prejudicially erroneorrs. This contention we think must be sustained. admissibility The rule as to of such stated evidence is thus in State Bass, v. 107, Mo. 782: 157 S. W. general
“The rule is that a nonexpert permitted witness will not be testify experiments to the court, results out of made but that expert witness who is an experiments and has made under conditions nearly possible circumstances as similar as in the con to those ease, may permitted crete experiments to state the result his [Riggs out 304; Underhills, made of court. Mo. Railroad, Cr. (2 Ed.) 233, Ev. p. experiments, sec. Evidence based on how 422.] *8 ever, with greatest should be received The cautions to be the caution. observed experiments are that unless the are shown made to have been essentially case, under in the same conditions as the the concrete tendency jury. enlighten is to confuse and rather than the mislead Ed.) 1541; (10 Stock, 130 783a, p. Whar. Cr. Ev. Daniels v. sec. [2 ” Pac. l. c. Mo. l. c. 1034.] [251 120.] in experiments The who made were not ex- witnesses the this case perts experi- and it is clear from the that the facts hereinbefore stated “essentially as in ments not made under the same conditions” were showing In of place, the actual ease. the first the of the absence satisfactory. far powder head was from burns on deceased’s face and by lay cursory way witnesses not The observations were made in a gun light. looking poor in The especially for such indications and a degree of known upward angle, an the which was not had been fired at State, according by the which, to the of doctors called diseernibility powder of the burns below extent would affect the testified in effect that the more of those doctors wound. One or angle upward and fired an close to at gun of the head muzzle of of entrance burn would be above powder most of the skin, at the indication on the there would be some shot and-that while care- require a probably would edge might wound it lower matters, it. in such to detect examination, skilled perhaps one ful most wound, which would shown have part the head above the The of away. showed The evidence burns, had been blown powder of similar and to appear same would not burn effects powder case the instant circumstances of skin in the human upon extent experiments. So also target in the used covered upon the cotton as compared with tomato can as shooting of the effect as to 782 degree think, skull,' least,
the human and to at we to the some experiments experiment's with chickens. The to test recoil of the gun misleading. requires could have no or dis- been It if de- cussion to show that the recoil would not same have been the resting gun upon ceased with held'the to-her other head end lay discharged gun it on a board. bed when was as when the smooth this possibilities unreliability dangerous The of evidence out conditions, pointed character, especially on account of dissimilar is (Tex. Crim. Bass, in v. Morton v. State supra, State which In see. paste firing pistol 71 at a App.), 281, experiments S. made W. show target powder marks in board to note the effect of order homi weapon head at the time of the distance of deceased’s from experi So, cide, upon reasoning. inadmissible similar held in pasteboard targets purpose made for were held upon ments like opinion competent Justus, 178, in 11 State v. Ore. in well-considered 256, 200, citing also, Hyde, v. 234Mo. [See, State a number cases. Eng. 406-7; Ed.) (2 pp. Com 316; Ency. 12 & Law S. W. Am. (Tenn.) Hump. 188; State, v. Piper, 120 Mass. Jim monwealth 289.] Norman, A defendant,
III. witness for Eva testified 1924, with attempted Mrs. presence poison Allison witness’ to take intent, attempt which suicidal frustrated. On (cid:127)cross-exam the witness ination she was asked if she had ever been convicted of crime “Q question she in This effect denied. and answer followed: you Tf have shooting your A. I Weren’t convicted for husband? Harry How I it.” been don’t remember In rebuttal State called good lett, Norman, who, terms appears, brother of Mrs. was not on objection timely with his sister. Over that the record defendant’s *9 to conviction, any, evidence, permitted if the best Howlett was times; testify Norman two three that Mrs. had been convicted or County. 1914 of murder” in Stoddard that “in she ivas convicted If objection good and should have been Defendant’s sustained. requiring production the best obtainable the well-established rule day justification facts in this instance needs at late the evidence this for with motion As shown affidavit defendant’s furnish it. an filed Nor trial, 1914, County,Mrs. the facts that in in Stoddard new man, unmarried, evidently age whose who was then not shown but ‘‘ killing man manslaughter, the murder, convicted of had been who baby who was father of her and her the who had seduced years’imprison sentenced to two marry her,” and had been refused to Those facts are shown compelled to serve. was never ment she judge knowledge trial who of the allowed the within have been to containing the affidavit. Howlett’s exceptions bill of signed' the
783 testimony that Mrs. Norman been murder, had convicted of following-, question the shooting to her about her husband, naturally would be understood to jury the that mean she been had convicted of mur dering her In argument husband. his to the jury, counsel for the basing State, argument presumably his on testimony, Howlett’s said: money “That blood talking is still when perjures that woman herself on a fact material and denies her conviction for murder.” The ad of Howlett’s mission was reversible error.
IV. Appellant charges in court, objec error his over tions, jury submitted to degree. of murder in offense the second any He contends guilty that under the if he was crime it only degree could have been murder in first and that the sub mission degree permitted jury compromise second murder to may produced jury have the verdict when returned was not fully guilt. convinced of his
Wo justified are think inclined to the evidence instructions on mur degree. der defendant, in the one, second No unless the witnessed A deadly the killing-. weapon upon a part body, was used vital which, from qualifying or evidence, presump without explanatory may- indulged. tion degree of murder the second If arranged gun golf killed deceased and stick to simulate' suicide as,executed things might thought those have been of as well afterwards early any to conceal the But in upon, crime. event relied cases by appellant support to his contention that it is error.to reversible degree instruct on second murder when the evidence tends to show only degree longer recognized first innocence no or are law in present this since our statute. Follow State the enactment of ing statutory mandate, 445.1, 3563 Sections Revised Statutes 1929, held in cases cannot we have numerous that a defendant com plain degree for that he was convicted of low'-er of homicide than guilty. of which the evidence tended show him Reference to West, many holding v. will State a few of the eases so suffice. [See 128, 138, 511, 522, 478; Whitsett, 232 Mo. 202 100 S. W. State v. Mo. 266; (Mo.), 264, 204 W. 555; v. Barnes S. State v. 134 W. State S. 819; Mo. Weaglev (Mo.), 817, Bobbitt, 10, 31, 228 W. S. State appellant. 114 S. W. This is ruled 511.] V. 9 on are criti Instructions circumstantial evidence they grouird apply on that as worded murder cised effect, appellant, do inform degree and in we understand first applies equally explained to either law therein jury that the rule of *10 submitted, court that therefore should and degree of homicide 6D "which so requested Instruction was worded given defendant’s have instructions degree as to to think the apply either of murder. We given by jury appellant as would not likely have been understood suggest contends but Ave of another trial the instruc- that in the event pos- to tions on circumstantial Avordedas obviate evidence be so concluding para- sibility misconstruction, also such that evidence 9, telling jury that circumstantial graph of Instruction other every hypothesis as reasonable is of such character to exclude Aveightas guilty the same than that is “it is entitled jury Av'hat direct It -to evidence” be omitted. is for the determine weight give it will evidence. 10, relating
Instruction to motive to evidence introduced light purpose shedding to “the intent for thereon refers informa forth in the motive of the defendant in the transaction set is that the . trial.” It claimed . . he is noAVon tion killing. may It instruction as worded assumes that defendant did subject as to be It be so modified to that criticism. should being by susceptible jury. so understood charged with appears Payton VI. It had been filed alleged jointly in the affidavit with this defendant homicide discharged magis justice peace and had been before the of the showing Payton’s discharge Avas magistrate’s transcript trate. The The not have been admitted. introduced the State. That should discharing Payton competent tend magistrate’s action as though guilty, ing to that this defendant was show in this case since defendant’s exonerated harmless probably Payton. motion in defendant’s for neAv alleged complained of
Other errors errors again here. For the need not be notified may not occur trial judgment III II hereof paragraphs pointed out Westimes is the cause remanded. reversed and court circuit Fitzsimmons, CG., concur. C., adopted is foregoing Cooley, opinion by
PER CURIAM: The judges concur. All of the opinion of the court. George (2d) Golden, W. 91. Appellant. S. The State Two, 10, 1932. June
Division