209 Mo. 316 | Mo. | 1908
At the September term, 1906 of the criminal court of Jackson county, the prosecuting
The deceased, Bertha Bowlin, was an unmarried woman, about twenty-one years of age, and resided at No. 1014 Jefferson street, Kansas City, Missouri, with her mother, a widow, who sewed for a livelihood, and lived with her family in a few rooms of the house which she had rented, the remainder of the house being sub-rented by her to other families who occupied the same. The house was near the summit of a bluff or bluffs which front west, toward the Kaw river, a short distance from the boundary line between this State and the State of Kansas. Near the home of the deceased was a driveway called the Kersey Coates Dtriveway, built by the city, beginning near the intersection of Twelfth and Jefferson streets, and extending in a
The defendant lived with his parents at No. 1407 Madison street, in said city, a few blocks distant from the home of the deceased, and was about twenty years of age at the time of the homicide. He had known the deceased for a number of years, was much in her company, had become jealous of her affections and intolerant of rivalry. He became dissipated and dissolute in his habits, a frequenter of saloons and bawdy-houses, and, according to his own statement, the first time he met the deceased was in a house of ill-fame. The year before the homicide, Mrs. Bowlin, mother of the deceased, refused to permit the defendant to enter her house to see her daughter. At this he became very angry, and threw bricks at the door and through a window of the house, one of the bricks striking Miss Bowlin, the deceased, on the arm. He threatened to kill her many times if he saw her with another, and told her if she could not go with him she could not go with anyone else. He violently assaulted her upon two occasions. Once, in the presence of witnesses, he knocked her down with a brick, and while she was prostrate on the ground he bent over her and beat her
Prank Kern, who was with the deceased at the time of the homicide and who was also violently assaulted, lived with his parents in apartments rented from Mrs. Bowlin, in the same house in which the latter resided. In the summer of 1906', Kern commenced paying attention tO' Miss Bowlin, and walked out with her occasionally. He had seen the defendant a number of times, and knew him by sight, and had seen him in a drunken condition in front of Mrs. Bowlin’s house shortly before the homicide. About eight o’clock on the evening of the 19th of July, 1906, Kern and his two brothers were out walking when he saw Miss Bowlin at Twelfth and Summit streets, near their home. As he started across the street to join Miss Bowlin, he saw the defendant standing on the street corner, recognized him plainly, -and the defendant said,
As Kern and Miss Bowlin were starting to go home, Kern was struck on the side of the head from behind. He turned and grappled with his assailant, but another seized him by the shoulder, and he was again struck and rendered unconscious by the blow. He recognized the defendant as the man he saw and grappled with at the time. About nine o’clock, the night of the homicide, a dog belonging to a Mr. New-comb, and chained back of his house, near the foot of the bluffs, below the catch-basin, broke loose twice and ran off in the direction of the place where Miss Bowlin was found next morning. Mr. Newcomb went after his dog each time and brought him back, on one of which occasions he saw two men running north from near the point where the young woman was found. About daybreak, next morning, a boy found Miss Bowlin, almost unconscious, tying on the wet, muddy ground, at the foot of the bluffs, below the catch-basin. Her face was covered with blood,- her clothes smeared with mud, and though still alive, she was unable to do more than move her head a little. She was taken to the hospital, where she died next day at about one p. m., having lived about thirty-six hours after she was found, fatally wounded. At the hospital she called for her mother, who soon came and remained with her until her death. She recognized her mother, and in answer to a question as to who struck her, answered, “Bert Crone,” and kept repeating the word “Bert,” which was the name by winch the defendant was known.
It does not appear in the record where Kern was found, but it does appear that he was rendered unconscious by the blow on the head, and that he was brought to the hospital in an unconscious condition a half hour later than the deceased; that there was a fracture of the skull, near the base, causing a hemorrhage from both ears, and that he did not regain consciousness for about two weeks. Kern was interviewed and harassed a good deal, after he left the hosiptal, by the defendant’s attorneys and others, to whom he made conflicting statements, and stated on one or two occasions that Crone was not the man who assaulted him. At the trial, however, he stated that he had received threatening letters, and positively identified the defendant as his assailant.
The defendant was a witness in his own behalf, and testified that he went to a saloon called the Tralle saloon, owned by Thomas Tralle, in said city, a little before six o’clock the evening of the homicide, and remained there drinking and playing cards until after midnight. In this statement he was corroborated by several of the attaches of the saloon. It was in evidence that there was a large number of men in the saloon that evening and night, but, besides the men who were employed in and about the saloon, the only witnesses who testified to seeing the defendant in the sa.loon that evening were James Pigg and Clarence B.
It is claimed by defendant that the court erred in admitting in evidence, over the objection of the defendant, testimony as to statements made by the deceased a few hours before she died, to the effect that the defendant assaulted her as charged in the information, without having, first, passed upon its admissibility.
The record shows that Mrs. Mattie Bowlin, mother of the deceased, testified as a witness in behalf of the State, and after testifying that she was with her daughter, the deceased, at the hospital the morning after the assault, remaining with her until next day, and that her daughter recognized and talked some with her, the witness was asked by the attorney for the State if she had a conversation -with her daughter and heard her “say anything about whether or not she felt that she could get well.” Counsel for defendant objected to the question on the ground that it was suggestive and said.that the proper way to inquire would be to ask what was said. Thereupon the court said: “I think possibly this ought to be made in the absence of the jury.” The jury was then withdrawn from the courtroom, and the examination of the witness proceeded with. To the last question propounded to her, she answered, “Yes, sir.” She then made a detailed statement of what occurred between herself and the deceased at the hospital, and was cross-examined by defendant’s counsel. Mr. Whitsett, of counsel for defendant, finally announced that he did not want to cross-examine the witness further on this point. The
“Q. Yon said yesterday you had a talk with your daughter before she died? A. Yes, sir.
“Q. Tell the jury what conversation you had with your daughter about her condition. A. I asked her how she felt; she said awful bad. I asked her if she wasn’t going to get well and go home with me. She said, ‘Uh, uh.’ I asked her if she was going to die. She said, ‘Uh, uh.’ I asked her if she couldn’t open her mouth and tell me who it was that hit her and hurt her so badly last night. She said, ‘Hu, hu.’ I said, ‘Who was it?’ She said, ‘Bert.’ I said, ‘Bert who?’ She said, ‘Bert Crone.’ I said, ‘Bert did this, Dovie?’ She said, ‘Sure.’ She emphasized it.
“Q. What was the condition of her mouth? A. The upper lip was cut through, and the jaw bone was fractured, and that made her teeth a little loose. That kept her from talking very distinctly at times; at times she could push her teeth up, and she could speak as distinctly as I'am. ”
The fact that the court sent the jury from the room where the case was being tried when evidence was offered by the State tending to show dying declarations by the deceased, and heard the evidence with respect thereto, and then had the jury recalled and allowed the evidence to be submitted to them, was equivalent to an affirmative ruling by the court that such declarations were primarily admissible. Moreover, in the absence of the jury, the court remarked: “This is a matter that is finally left to the jury, and I think under the testimony, I should let it (that is, the dying declaration) go to the jury;” and thereupon the court directed the return of the jury, and the evidence with respect to said declarations was submitted to them, with all
We recognize the rule upon this subject announced in State v. Zorn, 202 Mo. 12; State v. Simon, 50 Mo. 370, and State v. McCanon, 51 Mo. 160, to the effect that whether or not dying declarations offered in evidence are in fact dying- declarations, and admissible as such, is a question to be passed upon by the court. In this' instance, that is what the court did. Not only this, but upon this question the defendant asked and the court gave the following instruction:
“8. The court instructs you that the statement put in proof by the State claimed to have been made by Bertha Bowlin on the morning of the day upon which she died, was competent evidence, if the jury find and believe that at the time she made such statement (if you find that she did make such statement) she was suffering from the wounds of which she subsequently died, and that at the time of making such statement believed that death was imminent and near at hand and had given up all hope of recovery, and if you further believe from the evidence that said Bertha, Bowlin, at the time of making such statement, if you find she did make such statement, her mind was clear, and that she was able to recall the circumstances attending the infliction of the injury upon her, and that she knew what she was doing, and it would be your duty to consider such statement as the dying declaration of the said Bertha Bowlin, and you should give it such weight as you justly think it entitled to upon a consideration of it along with all the other facts and circumstances disclosed by the evidence in the case. You should consider, however, that such statement was not made in the presence of the defendant, that the declarant was not subject to cross-examination by the defendant, or counsel for him, and that the jury had no*329 opportunity to observe the manner of the deceased at the time such statement was made, and that she was not subject to prosecution for perjury if such statement, or any part of it, is untrue, and if the jury believe from the evidence that the deceased at any other time or times made statements contradictory of or inconsistent with such dying declaration (if the jury believe from the evidence such dying declarations were made), or that she was laboring under the influence of drugs administered to alleviate her condition to such an extent as to cloud her mind, then such contradictory or inconsistent statement and her condition at the time of making the statement introduced in evidence should be considered by the jury in determining the weight to be given to such dying declaration.”
This instruction admits in no uncertain language that the statement made by the deceased on the morning of the day upon which she died was competent evidence, and then proceeds to tell the jury the facts necessary to be found by them to constitute a dying declaration, and the weight to be given it by them in passing upon the guilt or innocence of the defendant. This instruction having been given at defendant’s request, he cannot now convict the court of error upon the ground that “there was nothing left for him to do but to obtain the most favorable instructions possible upon the theory of law advanced by the court. ’ ’
Defendant claims that error was committed in permitting the State to introduce witnesses to testify as to what Kern, a witness for the State, had told them with reference to the homicide. Kern was in the company of the deceased at the time she was assaulted, and was also assaulted at the same time by the same person or persons, and seriously injured. He testified that he recognized the defendant as one of the assailants, and, according to the testimony of other witnesses, he made the same
Several of the State’s witnesses testified, over the objections of the defendant, to statements made- by Kern connecting the defendant with the assault, but the objection made to the admission of the testimony, in every instance, was to the effect that it was “incompetent, irrelevant and immaterial. ’ ’ It has been many times held by this court that such an objection is too indefinite and uncertain, and counts for no objection at all. [State v. Wright, 134 Mo. 404; State v. Moore, 117 Mo. 395; State v. Harlan, 130 Mo. 381; State v. Nelson, 132 Mo. 184.]
- A final contention is that the court should have instructed on circumstantial evidence. This insistence is not bottomed upon the theory that there was no direct evidence that the defendant committed the assault, but upon the theory that Kern’s was the only direct evidence, and that he was shown to be unworthy of belief. We are unable'to assent to this. In the first place, w.e do not think Kern "was impeached; besides, his credibility as a witness was for the consideration of the jury under the circumstances in proof. In the second place, this was not the only evidence of the assault, for, in addition thereto, the murdered girl stated to her mother on the morning of the day upon which she died that Bert Crone did it, and the court, at the re
The murder was a most brutal one, and the evidence proves beyond question that defendant committed it, wilfully, deliberately and premeditatedly.
Finding no reversible error in the record, the judgment is affirmed.