*1 497 position husband any distinction between possible not discuss (cid:127) 3003, supra. under Sec. respect to these issues and wife establishing gift by Mr. of his interest testimony Schwind judgment chancellor. The discredited to Mrs. Schwind was remanded with directions to therefore, cause reversed is, entirety of an estate upon the existence decree based enter a Cooley Westimes, Schwind. during joint lives of Mr. Mrs. CC., concur. by Bohling, C., adopted foregoing opinion PER CURIAM: The concur., judges All opinion court.
as the Appellant. Benson, S. W. Frank Two, July 3, 1940. Division appellant. B. Bell and Ellis G. Cook Charles General, and Boy McKittrick, Attorney Bradley, L. Lawrence As- Attorney General, respondent. sistant *2 in circuit WESTHUES, Appellant Benson convicted C. degree Nodaway county, Missouri, in second
court of murder term imprisonment penitentiary and in the for a sentenced to twenty-five years. duly appealed. From sentence he May 22, 1934. The to have been committed on offense was may surrounding A detailed statement of the facts the homicide Hamilton, found in 340 Mo. 102 S. W. 642. be State accessory being He Hamilton was convicted of an after the fact. charged immediately aiding appellant escape Benson in his after the homicide. Benson later Hamilton’s conviction was affirmed. Nodaway apprehended the State of California returned to and county for trial.
Hamilton and his children lived on a farm three small a short dis- Maryville. tance farm south of house on this was divided into by an partition. two rooms unfinished There was also a smokehouse buildings premises. Other thereon need not be mentioned. In early part May, 1934, Benson, deceased, Larry Hays appellant and Mrs. Boekelman came to the Hamilton farm and remained until day of parties the homicide. After these arrived Benson and slept Hays, Hamilton the smokehouse while Mrs. Boekelman and slept children in the house. introduced that Hays they Benson and were the Hamilton while at home made various journeys night. emphatically at This was denied Benson. He go trips he did not testified these and was at the Hamilton thaj; only days. evening May 21, Hays home On the three Benson and They left in car. returned 3:00 Hamilton’s or 4:00 m., Hays May Hamilton, smokehouse, awakened who was They him had informed been shot. house where attempted gunshot water was heated and treat Benson’s wound, which located in back neck. suggested of his It was called, Hays whereupon a doctor and Mrs. that be Boekelman left in stating hour, in about an They returned purpose. a ear for that Mrs. Boekelman trip of they find a doctor. This were unable to by appel- point briefed kept mind, must be because Mrs. Boekelman lant a conversation had between pertains to trip unsuccessful they looking doctor. After this while Maryville doctor who dressed Hamilton to a aid took Benson to Hays and Mrs. Benson returned When Hamilton and wound. and Benson retired, Hamilton Boekelman had but were awakened Hays inquired partook adjoining who few room. of a drinks He if if been removed. they had seen a doctor and the bullet had but that the was not was informed that had a doctor bullet seen found. It was then about 7:00 a. m. place
Hamilton went about the to do his chores sleep. went to smokehouse Within few minutes Hamilton screaming. woman He ran heard a house where Mrs. shot him and was Boekelman informed shot dead. *3 Hamilton testified at and evidence was about the same this trial his as it atwas his own trial. He testified Benson had a revolver that in hand and his said: dirty
"Get me out of here. I rat. He didn’t shoot me shot accidentally.” Mm accidentally and I didn’t shoot Hamilton took Hopkins Benson to where left him and he then notified the officers. Mrs. Boekelman that came Hays testified Benson into the room while asleep; dozing was sound that going on; she was but knew what was something cigarettes, that Benson said then came to the bed and Hays through shot sleeping; head while he was he, that Benson, said to the witness: my "Look at the back dig bury of and him hole in it. neck— my way.”
I on am The of Hamilton and Mrs. Boekelman was sufficient to sustain a conviction murder. pleaded self-defense. making He denied the statements shooting reference to as related Mrs. Boekelman and May 21,
Hamilton. on Mm He testified that Hamilton informed Hays he, that had said that the first Hays, time saw talking to going Mrs. Boekelman he was Benson, to shoot and Hamilton advised leave; him he gathered to that then clothing his and to started leave Hays persuaded stay. but him to He further testified that that eve- ning Hays he and Joseph, to St. and on trip, the return while Hays riding seat, he, the back Benson, heard a shot and felt a blow on the back neck; Hays of his that drove the car the balance of trip Hamilton’s; return to that this was the time he had Hays ever been with at night. a car Hays He testified that Mrs. Boekelman had two .45 caliber pistols; automatic Hays guns trip had one of these on the to Joseph; St. that after he, Benson, gun shot claimed that accidentally discharged. his on cigarettes bought that he had
Benson further testified where bed near the trunk and had left them on the visit to the doctor from the smoke- returned slept; that he and Mrs. Bockelman noticed cigarettes; that he then getting purpose for the house these As to lying the trunk. guns articles one of the and some other as shooting Benson testified immediately prior happened what follows: condition jury under what “Q. . . . Tell the court feeling around you A. I was brought him? what it about that shot cigarettes. trying package find things on the I was to trunk. his ‘you said, Larry Hays up in bed and doing rose I was While time, I you will kill the other b-. I didn’t snooping, s-of I reached up gun and window, picked He reached now.’ Hays. Larry grabbed gun down, oif the trunk and shot “ he shoot I fearful would Q. Why you do it? A. Because was did again. me “ bodily injury possibly Q. you would receive you Were fearful Yes, death? sir. gun? got he A. He “Q. was he in when position What ’’ sitting position.
in a through Hays’ head passed The evidence disclosed that the bullet bore no marks or evi- pillow the wall. and mattress struck having If evidence of Benson dence been touched bullet. ground justifiable be true homicide was self-defense. permitted introduce in its evidence chief was evidence, objection, the a conversa defendant’s substance of over tion which have between and Mrs. occurred of a doctor to Bockelman while treat Benson’s search gunshot how wound. This conversation had reference to Benson had *4 Bockelman asked if told her how Benson re been shot. Mrs. was neck, replied: the ceived the wound in his witness bullet ways quite from Hamilton home they “He said the a. garage got ‘go away a prowling shot and Benson said ’’ ’ stay him in pulled let here and he the car and came home. me previously testimony The witness had in her stated that she noticed ill-feeling morning May on between Benson and the of It will be remembered that that Hamilton was the time alleged have leave. advised to to Appellant’s point briefed reference to the admission of has by Hays alleged Bockelman, to statement made Mrs. the above justify quoted. The State seeks the admission of to this evidence theory show the state of the tended to mind or it intention of Hays. A number of cases cited been examined and have we find that support contention. 1 do not the State’s Wharton’s Criminal Evidence, 685, 437, by State, cited the page sec. reads as follows: crime, by made victim of which part
“Statements the a not are of
501 hearsay and inad- gestae, dying declarations, threats, or are the res excep- an There is missible, though the declarant is dead. even by made of mind case of declarations as to state tion to this rule the defendant, . meet the . upon departure a to deceased his a by Hays was not such been to have made The statement hear- event, out past It a narration made of statement. of a clearly gestae, and under ing defendant, part not of the res of pur- self-serving Hays, made for the part of the circumstances shooting with reference pose exculpating himself from blame to of Wharton, con- quoted, announced above of Benson. The rule 5 Atl. length Perelli, 321, 125 sidered at in the of v. Conn. case State say: following 1357, court 705, 121 A. L. R. where the had the ‘‘ justified in the the admission The rule as laid down earlier eases ground testimony his intentions on the a deceased witness as to 76, 92; gestae (Douglas Chapin, 26 part it was v. Conn. the res Smith, 376, Hayden, Ky. 71; v. 1 v. 49 Rep. Law State Conn. Conn, 351, 161 381) Journey case, page but in the was restated 517, indicating ‘A a in- page present Atl. follows: declaration as future, ap- particular tention to do a act immediate made parent good self-serving admissible to purposes, faith and not for admissible, prove performed. that the fact It is not act was in as gestae, part res fact relevant issue.’ This but as to a fact inis accordance with more modern and better reasoned doctrine. 288, note; Wigmore, (2 Ed.) A. L. R. Evidence see. [113 1725.] theory important rule itself is more than the on which it is Farnam, 417, founded. 82 Ore. 161 Pac. Ann. Cas. [State 1918A, underlying, essential of all characteristic 318.] admitting (see note, supra) numerous eases such A. L. R. evidence intention, design is that the statement must refer to the or state referring mind of declarant. parts Those .statements to the past present, acts and intentions pure of the defendantss were hearsay them, subject cross-examination, a person as made not exception hearsay and are not within rule defined Journey case.” Applying that rule to the situation at hand it is evident that wag
evidence inadmissible. urges
The State further that the was harmless it because was an agree admitted fact that Benson shot. We cannot with the contention that the evidence harmless. Benson claimed justification. self-defense as a testified that reached for He gun and said to him: you
“I kill time, didn’t other I will now.” *5 If prowling garage Benson was shot while a then there was no Hays. other time as referred statement of So the hearsay appellant’s evidence to the heart of defense. It was very damaging inadmissible, prejudicial and if rights ap- trial concluded of the at the close trial court
pellant. The given the erroneously An instruction admitted. is ad incompetent evidence Where disregard evidence. jury to defendant, rights of the highly prejudicial mitted of character instruction. by withdrawal generally [See not cured the error is 887; 881, l. c. 129 W. 620, 640, S. Martin, 229 l. c. Mo. State v. 469, We are 466, l. c. 597, l. 613, 92 W. Minor, c. S. 193 Mo. 470.] can that we a character was of that the evidence such opinion cured instruction withdrawal of law that say as a matter not case remanded reversed judgment therefore error. The is CC., concur. Cooley Bohling, trial. Westhues, C., foregoing opinion
PER CURIAM: The judges concur. All court. opinion adopted as Guy A. Friend, v. Next Smith, His Smith, Minor, Sarah J. Company, a Pacific Railroad of Missouri Thompson, Trustee (2d) 70. W. Corporation, Appellant. S. Two, July 3, 1940.*
Division Opinion September Term, 1939, May 1940; *NOTE: filed at motion rehearing filed; May Term, 1940, July 3, motion overruled at