*1 COURT SUPREME OP MISSOURI. (cid:127) State v. Dooms. Appellant. DOOMS, THE STATE v. JOHN L. Two, December 1919. Division de- 1. HEARING: Waiver. Failure to accord to PRELIMINARY placed preliminary hearing he is on his trial fendant' may waived; irregularity, for murder is an and if arraigned pleads does at the he is not raise time guilty, or at time until he files his new motions for a arrest, right. waives Degree: 2. MURDER: Information in First Election to Prosecute for Although Degree. charges Second the information defendant degree, attorney prosecuting may murder in prosecute first elect degree; although murder unquestionably evidence estаblishes in the first murder complain defendant cannot on account a conviction of degree years’ murder in the second and a verdict im- of twelve prisonment. Objection: 3. EVIDENCE: No Bloodhound: Instruction. Deceased through sitting shot a little after in a dark a window while family. room with his About o’clock in the two afternoon of following day bloodhound trailed the tracks a man neighborhood. side of house to abode in the defendant’s objection No was made to the evidence when offered. The court judges weight- that "the instructed are the sоle of the credibility witnesses,” gave the evidence and the of the hut specific weight testimony given instruction to the to be concerning dog’s object Held, first, actions. that failure to testimony admission the time it was offered awas any objection thereto; and, assignment second, waiver of the motion for new trial that the “court instruct the failed weight given against as to the of the assignment bloodhound” does not amount to an the court to-give cautionary point, failed instruction on the relates weight testimony, given fairly the instruction assignment. fully cоvered that 4. INSTRUCTION: Reasonable Doubt: Refusal of Defendant’s. Where given presumption the court has a correct instruction on trial, innocence reasonable doubt in a murder it is not error subject Besides, refuse one on same asked defendant. requested by argumen- the instruction defendant in this case was partisan, tative and and should for that reason. refused (cid:127) 85- TERM] . Testimony 5. MOTIVE: Sufficient Evidence. that because of some disagreement separated; and his wife there- *2 feeling after bitter him between members of his existed family, espeсially community, her; towards that he left and in stating general returned, a short time that he had come- hack for a settling up; neighborhood that he told witnesses that he youngest away him, alive; take his would son with that dead boys it, get would not him do let but would he. him; they get of them as two or three weeks be- bought rifle, frequently fore the homicide and was seen watching gun; thereafter his wife’s home while armed with the gun through dark, and that at the time a was fired window after wife, killed, his son who was son’s wife and others room, of his children were in the is sufficient to establish motive. Shooting Killing -:6. at One: Another. The fact that defendant’s by prompted motive commit murder was a desire to kill his equally attempting wife is available him inif to kill her he being killed son. motive, There sufficient evidence to establish law, circumstances, supply under such will motive if necessary. were Necessary may 7. -: Not to Guilt. The be found though murder, appear. no motive is made to If jury believe all the evidence that defendant did adduced actually charged, guilty, commit crime should be though the evidence fails to establish motive. defendant, 8. JUEY: Murder: Selected Sheriff: Waiver. Where part selecting convicted of murder in the took they objection the trial made to the manner in which object selected, arrest, it is late in his for too motion regular time, panel jurors the first that a was not drawn county court, jurors the twelve trial were selected panel sheriff; from a selected this course he had objection. waived such Stewart, Appeal Court. —IIon. Fred from Douglas Circuit Judge.
Aejbtemed.
Frank W. McAllister, Clarence Attorney-General,- P. LeMire, Assistant respondent. Attorney-General,
(1) evidence introduced was sufficient. "Where evidence introduced tending show guilt the verdict of the will
86 SUPREME COURT MISSOURI. OF y.
State
Dooms.
be disturbed. State v. C’oncelia, 250' Mo.
State
425;
Sharp,
v.
MOZLEY, C. On the 3rd 1918, the of County, attorney Douglas prosecuting filed Missouri, county, an in information circuit court said where- charged Dooms, in' the John L. instantly in that he murder of shot and first Vol. 1919. TERM', day killed son, Dooms, A. 3rd Ms William prosecnte defend- December, 1917. State elected to ant under said information for murder in the degree. appears It a mistrial Febru- had at the Avas ary term of court and the continued cause said April day the court to the the 8th term, On April April being day term of the first of said ,tlie same arraigned dnly for- defendant murder Avas degree plea guilty, a the second jury and entered his impaneled, duly on raised AA’as the issue had his plea, charged re- verdict of his punishment jury, fixing defendant’s turned imprisonment years Penitentiary. twelve Mo- judgment filed, neAV trial and arrest of tions thereupon overruled the court, defendant appealed duly the cause to court. years tragedy
For before the date of the A. lost his life, William Dooms defendant Douglas family part' on a in the lived farm eastern County, boys girl There one Missouri. were seven being family, boys one A. Dooms. William years A account homicide, few on some separated, disagreement, wife community, there in the boarded here and while wife and other members of continued reside the farm after mentioned. Even heretofore appears separation bitterness continued misunderstanding existed defеndant and his between prior wife wife. A feAvmonths homicide *4 put keep peace; him under to bond threatened whereupon community left the defendant and did shortly return the homicide. Two or three until before Idlled A. was Aveeks William Dooms purchased rifle caliber Winchester which be- a 25-20 frequently longed after that son, seen and was his gun. carrying premises about the said day 1917, the December, deceased, the 3rd On residing at of his A. was home Dooms, William He been in farm. had at Oklahoma mother said COURT SUPREME MISSOURI. OP prior several thereto, months to Her had returnеd part preceding home the latter of the About October. p. Dooms, or 6 m. 5:30 date, said A. said William several members wife, other his mother family sat about room fire southwest their engaged- day house, The been conversation. had cloudy lamp darkness had and a had fallen lighted. upon opened a There out door that was porch family on the the room west side of where sitting. were A south of the door window few feet was family were that communicated room. with’said While engaged seated stated, above conversation, аs through from the window, shot fired outside was 25,20 instantly rifle which struck deceased. A killed cartridge footprints along porch, was porch. the by of the rifle bullet side A 25-20 extracted Avas physician from the inflicted wound deceased. following day On the p'. o about two m. the ’clock brought requisition, of a services bloodhound were into trailing tragedy and after scene of the where staying pointed defendant was the bloodhound him out dropped cartridge the one had made who along porch beside the where tracks deceased was рlaced killed. Defendant then arrested county jail. further that defendant de- discloses custody person youngest
sired the of son and laboring impression under the mem- other opposed having cus- bers such tody. witnesses Some stated going boy away;” “that he said “there to take the going get trouble, got they them as him.” Following the facts little more Josie detail, Dooms, Dooms, at defendant’s wife Thomas swore got gun that he from her above mentioned three home about before deceased she killed; weeks was: gun gave him; defendant told hеr said she *5 TERM¡
State v. Dooms. gave he he the nine, wanted shells and she him all he ever need. said three-quarters mile E. W. lived who McDaniels, go from the down road home, saw defendant Dooms home, and the house when he near arrived stopped though trying he ain brush he was as acted get something, he witness a view when saw into, he off the woods. went cartridges M. Miller that the
William taken testified person from the nine in number, they caliber, turned over to him and that were 25-20 judgment body taken from ball a 25-20 deceased was caliber hall. him he was
R. that defendant told’ C. Buxtоn stated away youngest going take from rest son family; hoy away going from am “I take going to them; won’t me take am let I others him; get just hoy will take the dead as I alive; or they of them will of me.”
George in a conversation with' Denton testified that prior shooting- of his of deceased there one of troubles, defendant said would he up seen; had ever torn the worst families one out of them. there made scatterment Avould shortly testified that Louallen Jennie Mrs. killing, front of she saAVdefendant Mrs. Dooms looking standing at house He
home. coming gun an he her turned arm, on d when heard premises. away around walked Aveelcs-prior' that two three testified Jones John killing fire, house on the Dooms told Avitness came hour about one-lialf family. some of trouble with Witness had day folloAA’ing he found that on the fire stated further by.ihe premises, garden some tracks over Dooms they the shoe been made if looked wearing time. at defendant was Thursday before that on Louallen testified Claud nine killing he was the*Collins about home, SUPREME COURT MISSOURI. OF *6 p. putm. horse in the his barn feed found a it and gun manger, m;. p. the and about eleven when witness gun gоne. took horse out the his was Defendant was night. there that quarter Wallen,
Dali lived who about a a mile from the Friday prior home, that on Dooms testified killing defendant told him that he home had come general “settling’ up” might they and that kill “they him, would not kill of him than more he gun them.” carrying would of Defendant at was the time of the conversation, but it too dark was it. witness describe day
John Brown testified that deceased was going he killed saw defendant down the road towards gun carrying home, he Dooms was at time.
Floyd grandson Dooms, testified that just he returned from he school, with other some playing pond; the barn children it near out growing dark; saw was a man he took to be whom shortly looking house; that he at the he was defendant; away turned around walked down the from off fence n house, hour later and deceased shot one-half was and killed. present Bumps
Mr. that he testified when the was dog place to defendant where he was trailed arrested. ldnda him, said to bad.” Defend- Witness looks “This replied, got liberty, very ant haven’t “I much longer anyway.” live much Defendant.testified in own behalf; admitted having’ gun, bought ownershiр of the a few weeks before another he it frequently one sons; of his admitted past it home,
carried Dlooms evening day him the de carried substantially killed. He all denied ceased positively shooting son, other evidence denied the deceased. no brief in nor court,
Defendant filed represented however, In the counsel. lower 19-19. TERM1, Yol. 280] Dooms. rendered counsel filed a motion to arrest judgment formal verdict reads, omitting- jury which parts, follows:
“1. verdict, Because and sentence judgment is insufficient to incarcerate law defendant prison. state
“2. Because the State Missouri should been elect, objection, permitted over defendant’s try for murder in such offense . The offense for
having committed the evidence, as shown tried, one blood, of cold and that by tying- wait, *7 the most character. atrocious there
“3. Because or no evidence showing was kind that defendant a any ever awarded was preliminary (cid:127) placed trial before on for trial being- this court murder.
“4. Because the record defend- proper shows ant awarded a regular panel not by-the was selected jurors by drawn cоunty by panel by sheriff.” selected also, trial, filed motion for new which omit-
And, formal parts, follows: ting- reads as
“1. Because the is evi- unsupported verdict dence. against and Because the verdict to contrary
“2. given the court. the laws
“3. Because and to court admitted submitted and immaterial irrelevant evidence jury incompetent, the defendant, to against great and damage to the defendant and over ob- injury his not, without jections thereto, this, to-wit: guilty, verdict possibly, court at divers during progress times allowed witnesses witnesses, said from divers trial and differences between defendant testify family at when fаmily, other members his wife the deceased not was differences of such family time shown present, was family, such member was SUPREME COURT OF MISSOURI. family to have known of such had married differences, long*prior thereto, and had either removed, was residing several home, from the miles was or D'ooms part residing any ain distant or state; had never taken interest whatever in affairs; all this, friendly to times and with his father, against no and took interest either or his said thereof; father account evidence admitted so jury, understood ño tending doubt, malice, show ill will, hatred revenge part on the defendant deceased. “4. permitted Because the court one witness testify to trouble some between defendant some neighborhood people, church over objection, defendant’s and which knowledge deceased or connection or concern. plaintiff “5. Because (State) utterly, failed,
prove any part motive on the of defendant for the kill- ing of son. Failed show will, ill malice, revenge purpose by said deceased towards taking contrary, conclusively life; shown feeling best of usuаl parental affection toward deceased and by deceased toward defendant.
££6. Because the failed instruct *8 weight against given as to testimony the of the defend by the bloodhound. ant
“7. Because the have out all should stricken testimony the the to bloodhound as master, permitted the hound was not to continue the trail the residence of deceased to the good further character not reason'one be con- should ¿is dog tending a a the evidence to form victed testimony in the defendant. link ‘‘ not have under should State, evidence, 8. The pеrmitted try murder elect to defendant for to been degree, being, absolutely in the case to warrant same. The was one of murder anything, if not the trial first did warrant 9o TEEM, - years The of twelve shows a lower offense. verdict probability, been not have defendant, in all charge under the committed, crime degree. the indictment for murder in first “9. that' Because it not shown was preliminary a trial was before awarded justice being placed upon peace trial before for murder.” overruled stated these motions were above
As excеptions appealed duly saved and case court, court. Broadly speaking, these it will be observed generalities, speculations with more deal or motions less overlap main, It arguments and, in each other. them, dispose unnecessary seriatim, be will therefore examining with such but points will content ourselves we disposition appear necessary to a correct the case. reversed case that the
I. insisted It is given prelim that defendant because inary hearing it is justice he peace before before a the circuit put guilt innocence in trial of ar- that defendant discloses record court. plea raigned entered circuit impaneled, guilty, the Preliminary Hearing. resulting conviction, in his had, trial pre- given never once that he was remembered peace liminary hearing justice until necessity preparing a face to face came judgment -De- trial. and for new motion arrest progress could halted the of his fendant any stage raising prior simply to conviction given preliminary hear- such he had not Doint ing, allowing matter himself but contented intending ride, sneak, evidently hold the so «necessary. become for future should it reserve use 505.6, Section It true that Revised Statutes *9 right preliminary a de- examination accords charged felony, of a with the commission fendant SUPREME COURT MISSOURI. OF right
such may be waived of the defendant. conduct In the case of Pritchett, 696, this precise question, held, this that: not “It is necessary charging the information, also murder, charge previously that defendant had been accorded a preliminary point examination, can the he nor given preliminary hearing a be raised in point motion in arrest. The at an most relates irregularity, during not made or if before pages will be considered waived.” On this 703-704 of “Although justice might, case it said: is after preliminary discharge prisoner, examination, such way operate action would in no a bar to an indict prosecuting attorney ment, or to an information justice the- might offense, same and whatever the do legal standpoint pre in liminary. merely from a case is complained The matter an most irregularity. Besides, the was not before made during regarded trial, it must, therefore, be George having parte In been waived.” the case Ex McLaughlin, right that the 210 Mo. it held is preliminary may examination waived at the time de required plead if fendant circuit is general guilty” pleads it. plead he issue “not he waives precisely That what did. When he general right guilty he waived issue hearing preliminary We, of tlie Peace. Justice therefore, overrule contention. pro urges, say a novel least,
II. Defendant proceeded position, not be effect that he could degree reason in the seсond for murder anything a brand of that if murder the first most atrocious unsuspecting lying hurl wait to Election to presence wife, while Prosecute Second-Degree family, other members of mother and Murder. says eternity. lie into attorney prosecuting prosecuted for that. character for reason valid in some doubtless *10 95 TERM', State v. Dooms. pursued, why
course not done. was However, assignment. no merit in this the is Murder in degree first all of the of contains unlawful elements and, homicide hence, all contains con- elements stituting degree, ap- in the murder second and no reason pears why prosecuting attorney may not elect part prosecute State to for murder in the second. ground complaint course Such no valid for furnishes defendant. court
This hhs held that where the times charge in the indictment or information is murder degree may prosecute the State first elect to for degree. murder In the second case of v. State Rollins, 226 l. court in Mo. c. this said: “An 531, dictment or information for murder in the first grade every every our under statutes, embraces degree highest criminal from the homicide prosecuting attоrney lowest. The elected case this proceed only. murder he had This right to do.” v. In State l. c. Schieller, 130 Mo. 515, same doctrine announced, is also v. eases State 212; 237 Mitchell, v. Mox ley, l. 115 Mo. c. Jones, State v. 651; 106 Mo.
State v. 90 Mo. Keeland, l. c. 338. against appellant
We, rule therefore, this attorney prosecuting hold that well within right prosecute under the de- law when elected degree. fendant murder in the second alleges III. Defendant error because the court weight jury “failed to to the instruct testimony given the bloodhound,” complains further because the whole of testi mony not stricken оut. objection
No made the ad- as to testimony jury, mission incompetent and had it been incompetency timely its waived because objections thereto not made. [Ladd Williams, n (cid:127) SUPREME* COURT OP MISSOURI. App. l. cited.] 398 and c. We cases
Bloodhound though testimony do not understand that incompetent timely by party be can admitted without objections being made such and wh*enhe discovers that unsatisfactory and after cross-examination npon get same matter he can rid verbal all of it motion to strike out. gave very apt instruction to effect “that judges ivere the sole tueight n *11 credibility and the evidence the wit- of of nesses.” duty Under instruction this it of weigh all of submitted
case, pass credibility on the and of well. witnesses as objection asigned The in the motion for trial does new go give cautionary the failure of court to a “testimony given against instruction to the as defend- by ant the bloodhound,” relates, but above indicated, weight testimony. of It becomes therefore unnecessary to except consider further, to add complaint fully said instruction made, covers fairly, and and a correсt instruction is the law. under point against appellant. ruleWe this Appellant complains IV. that the court committed refusing by error in an instruction asked him presumption g'ave of innocence. The court an instruction npon presumption innooense of follows: reads as which presumes
“The law dfefendant to be innocent, presumption him attends until overcome this him, proves beyond guilty evidence a which reasonable you a have reasonable doubt of defendant’s doubt. If guilt you acquit him, a doubt should but Instructions. acquittal ground on authоrize an touching be a substantial alone defendant’s doubt guilt, possibility a. mere of his innocence.” a
We think correct instruction. this reads as follows: The refused instruction presump- laAv the defendant with “That the clothes protects innocence, him it of -until overcome is tion which TERM', guilt beyond evidence a reasonable doubt, positive which means that the evidence must be clear, abiding, fully satisfy and conscience minds jury; it justify not sufficient is a verdict suspicion strong that there' probability abe guilt, requires proof producing law clear, ‘entirely guilt, undoubted and satisfaction’ burden establishing prosecution; that, is prosecution seeks conviction on circumstantial evidence alone, the cannot convict the State unless proven beyond g-uilt has defendant’s a reasonable doubt facts circumstances each other with consistent guilt absolutely and with inconsistent ’’ theory reasonable of innocence. argu vice this instruction is that too is partisan,
mentative and refused and should been Bjut ground.- properly aside from it was this gave proper because refused, thе court instruction presumption covering innocence, -it has held unnecessary duplicate it wholly court that instructions. [State v. Guinn, 685.] l. c. quite duplication It is manifest that instructions *12 jury the confuse, tend to rather than make the clear, they pass. issue must We hold that properly said instruction refused against point appellant. rule the agree V. We cannot with defendant's contention that the State failed to show a motive for the crime. above set out shows that bad blood ex~ him, fathily, especially' wife; isted heween and his general that dеfendant s~id he had returned home for a settling up; going that he was to take his Motive. youngest away them, alive; son dead or boys it, that the woul~I not let him do but he would get they him; as of them as would of that two prior killing procured or three weeks he the 25-20 Winchester, frequently ealiber and was thereafter seen watchina' the Dooms home while armed with said zuri
7-280 Mo. SUPREME COURT OF MISSOURI.
State v. Do.oms.
night
sitting
and on the
deceased was killed while
around
single
stove after dark.
If
did
him
defendant.
out
indiscriminately
he
shot
into
victim fired
with the result that
killed.
deceased
That
prompted by
act wаs
a motive to commit crime
happened
possibly
that
fact
kill
deceased would
not alter the situation;
under these facts,
law,
supply the
necessary
motive if' it
be
supplied.
But it
been held
has
this court
State
Barrington,
v.
l.Mo.
c.
motive
where no
103,
appears
yet
for
if
crime,
commission of
jury believe from all of
evidence that
did
charged,
in fact commit the crime
then
be
he should
guilty,
any
matter
no
motive
whether
apparent
are the
deed
not. To
effect
same
131,
David,
cases
l. c.
v.
State
We hold for the commission аp- rule the of the crime pellant. shown, urged proper It that the shows that VI. record regular panel defendant was not awarded jurors county a selected drawn panel by selected sheriff. trial before the select-
Defendant submitted selecting participated the twelve who in which he ed, steps done tried the case took any existed, if behalf', correct this errors duly qualified they were existed; none we hold Jury competent try case under the law purpose. under jurors every respect We hold right question the waived condition defendant this therefore selecting date, late contention. overrule *13 judg- lastly the verdict, contended that It is
VII. in law to are insufficient incarcerate ment sentence and prison. in state (cid:127) 99 1919. OCTOBER TERM'. Eversmeyer Broyles. assignment.'
We do not verdict was The so view punishment one of and assessed defendant’s years Penitentiary, and term of twelve the State judgment duly that verdict the court rendered finding with sentenced defendant accordance jury. anything or If there further'to do Sufficient Evidence. necessary to make valid tfiat to do judgment verdict, not advised what sentеnce, we are pursuing it further we hold ivas. Without matter judgment and sen- verdict pronounced tence thereon were valid uphold conviction. sufficient to defendant’s given painstaking considera^ care We have thus by appellant, points raised which has tion being quite favored brief because of laborious, counsel, prolonging without learned of defendant’s is opinion of what further, in consideration fair said, has had we think herein impartial affirmed. judgment trial, and so It ordered. is
Railey concur. White, C'G., opinion foregoing PER CURIAM:—The Mozley, C., hеreby adopted opinion All the court. judges concur. Appellant, EVERSMEYER, BROYLES v. W.W. ENO BENNETT. RICHARD T. Two, 4, 1919. December Division Description. Ejectment: Indefinite Annullment: JUDGMENT: survey fixed and of Government are section lines and corners in- there- are monuments whether visible determined description dicating their So if the land location. point ejectment beginning judgment is the northeast states section, certain fractional and from corner of a distances, there is no described courses and lines are any uncertainty allegation as to the location of there is