*1
i£
frаudulently
The
trustee
contends
ac
property
trust
and exercised dominion over
quired
own,
it as its
has, through
action,
property
passed
or if
the trustee’s
into hands
purchaser,
equity
former owner of the
redemption
of innocent
damage.
can hold
accountable
From
trustee
the authorities
appellant,
only
find
true
cited
we
where
sale
is void.
already
only
have
held
We
this trustee’s sale
voidable and
“But,
when the
wrongful
void.
foreclosure itself is
because no
right
exists,
wholly
then such a sale is
void
mortgagee
to sell
and the
acquire
mortgagor
can
under
right
title
it.
has
go
into
equity and have it set aside.
It would
title,
be
cloud on
and it
might
be
he
would also
means which
his title
an
lose
innocent
purchaser,
estopped by
he could
because
be
rights.
laches
assert his
situation, however,
mortgagor
In that
let
stand,
can
the sale
damages,
right
sue at law
because he has
collaterally
attack
By suing
judgment
it.
obtain
at law
paid
value,
its
he does
validity
not admit its
but he would thereafter be estopped to attack
equity.
damages
it in
Such a suit for
at
an especially
law is
appro
priate remedy
an
purchaser buys
innocent
where
foreclosure,
at
be
against
gives
guilty
cause it
relief
rather than the
party.
innocent
Rogers
That was the situation in
Barnes, supra.”
[Peterson
City
Company,
Kansas
Life Insurance
From what have we follows that petition fails judgment cause of action. The state of the trial is, court All therefore, affirmed. concur. Appellant. 878. Hepperman, Emma Two,
Division June 1942.
683: Boy McKittrick, Attorney General, Bolen, and Olliver Assistant Attorney General, for respondent. *4 Politte, appellant. A. L. McKim and H. K. Pellett for
Leo J. *6 BARRETT, Snyder Hepperman C. Emma con- Lee victed poisoning her imprisonment. husband and sentenced to life 3, 1940, Anthony
The State’s March (Tony) that on Hepperman farmer, fifty-one years age, living was a widowed about County. two and one-half from Wentzville St. miles Charles family daughter, years a Ethel, age, His consisted of eleven son, Herbert, a twenty-three, shortly left mar- who home after his riage daughter, Emma. A a Eagan, Isabel farm lived a short away.- Except for resulting distance a toe many sore frost bite years Tony before good Hepperman was in health spirits, inter- operаting ninety-one-acre ested in his farm which was valued at approximately $6,000.00. Sunday, 3, 1940, Tony
On March showed son Herbert following item from the Wanted” “Situations column St. Louis Globe-Democrat: housekeeper “Woman for motherless home. Age Neat. Pleasant. forty-six. Lee, Emma 1419 South Vande- venter.” says The following Monday son morning his father (the wrote letter being inference that it in answer advertisement) and mailed it in the mail following box. Wednesday appeared at the asked farm and Mr. fon Hepperman. daughter, Isabel, was at farm on March 13th and her father introduced Snyder. the defendant as Mrs. Isabel asked the advertisement lady answered' dad she was the whether
her name had inserted she explained she was replied and she аdvertising for not know she was everyone woulcl “Emma Lee” so housekeeper. aas position father for her going keep house she was Emma told Isabel Later marry her in time she if he did two weeks and more and her hus- Ethel, Emma, Isabel Tony, April going to leave. On of them tes- and each friend the- of a former funeral attended band *7 the funeral father about talking to in defendant tified that the as go á funeral your on to to shoe go put “If can you out and said: get go married.” your to and put shoe you can also on pallbearer a 13, All of April 1940. Tony married and were The defendant very op- Steve, were much brother, neighbor and his children wedding. posed to the and hurt, her stomach back April, ill her throat Ethel became in сontinuously. Emma She said and ached, was nauseated vomited she right. Emma vomiting all stop she would be her if would
told she took, many and that him ate too and told she sweets her to doctor a her bologna ptomaine. had Emma said and had she some eaten thought had,an mumps. doctor she jaws The were due swollen . days six and went her sister for to Isabel’s ulcerated stomach. She finally very got Ethel her father sick. got she back home was when straight hospital placed was in a at St. couldn’t walk and she so diagnosed being due to Charles, as arsenical where condition was poisoning. May
By May and Tony’s physical 18th condition critical May Mary’s St. he died on Hospital 27th he was admitted where to enumerating 1940. symptoms Without the doctors described typical poisoning a arsenical ease. died his stomach was Before he lavaged contents, specimen, pre- and the as a urine as well segments An autopsy performed served and examined. and organs were retained and examined Mr.. Koch various Highway . autopsy diagnosis Patrol. The corroborated the previous analysis organs An poisoning arsenic. of the revealed arsenic kidney, liver, brain, intestines, spleen in and The total skin. grains in quantity parts of arsenic found examined .5677 and Tony been it estimated had administered much 15 as as grains being grains normally. 4 a lethal dose —3 Specimens of Ethel’s hair and revealed nails arsenic. employees Two Mercantile Company Wentzvillе testified that April purchased package the defendant Fly a of Seibert’s May purchased Paper and about returned and three more packages. fly paper at early the wareroom the time it as was for bugs. Emma for stated she wanted it water Once asked she flies.. did it purchased for lead but store not have arsenate of and she purple. manufacturing London Seibert’s package a chemist tes- fly eight- paper per tified each sheet of contained cent or grain tenths of metallic and that it was in water. of a arsenic soluble metallic purple per London was'26 cent arsenic. purple reported Ethel London and on it as saw the comments for, I poison, follows: “She said it was asked her what it was potato bugs, said, ‘Well, or flies what and she potato bugs. you you Do think I would use it on After Hepperman defendant came home all the she.did cooking. . (home brew) She made beer which Ethel described as .also being tasting differently bitter and the beer her made: sister employed neighbor lady Once she a laundry do the and this said get told her could she have some beer it from but steps under the belonged as the beer in the back of the basement Tony’s daughter. woman, got also “Yes, Hep’s She said to this ” thousand going get I am it. dollars Hagen, Sergeant
F. Highway Patrol, D. the Missouri State May 22, testified that on Emma Heppermans came to his home reported robbery $43.70 cash and her watch. She stated she saw a man around neighbor the house and identified a prowler. as the told robbery She Patrolman Barr about and said Hepper- Steve man doing something had accused her of and she wanted to sell the farm Tony away take they with her. She told Steve had been *8 robbed and indicated the woman who washing being guilty did the they and going said place to sell the Subsequently and leave. she robbery admitted the was a fake. Hepperman Steve May 24, testified that when :on he was at
Tony’s and .insisting taking saw his condition- he was him ato doctor opinion and the defendant any good. was it wouldn’t do During the course of the Tony discussion told Steve he had been poisoned.
Ethel $1,000.00 had inherited grandfather, her which had been invested in a postal savings day bond. The after Ethel went to her sister’s and get came father her to endorse her name on the bond it could They so be cashed. did not any have ink suggested and Emma that she write her pencil name in on a piece paper (Emma) and she would signature trace off on the bond and write over it got with ink when she home. On.May 25 Tony the defendant took Keller, to Dr. a dentist (cid:127) Wentzville, and asked the dentist to remove teeth. his The dentist eight extracted teeth and Tony that stated was so weak his'physi- and cal condition so bad he refused to remove them, although more of insisting she was that take all. he of them out at that time.
The testify. defendant did not Eight witnesses testified in her behalf.- Two Tony doctors testified that declined théir services and рrotested going hospital. attorney The Hepper- Herbert man as the administrator .of his father’s estate testified that Emma
690 drug A' right clerk had waived her to administer on the estate. and three Tony milk for calves colts testified he sold emulsions some years lawyer that Steve talked to prior to trial. Another stated day Tony him Emma was and afraid before died that Steve was going him get persuade him and to transfer to St. Louis doctor testified property prevent and wanted to it. Another Steve 2 8 10 grains a and that of arsenic was lethal dose 2i/2 15 grains not take an absolute maximum and a man could grains forty-eight arsenic was of and live hours. This witness grains opinion body that a 15 of arsenic man’s contain not could long unless it had been а period administered over of time—two years. autopsy three Dr. Joseph testified he assisted Creech Tony’s and saw A stomach it looked bile. contents like roofing man trips from St. Louis said or three out to he'made two Hepperman fly paper farm saw He around on floors. talking gave Hepperman pack- about it and Mr. him one of the ages fly paper. appellant’s assignment first of error that there is not
sufficient substantial evidence to sustain the verdict. The assignment in this respect amplified by assignment her second erroneously gave court 1, Instruction No. which authorized “upon solely conviction facts upon instead of circumstances finding facts” and did require poison as to the nature of the used or when theory and how it support was administered. In of her the appellant (only poison case, cites cases one and it there held a case was made jury) for the in which it held that the circum stances shown were not sufficient sustain a conviction or that the merely guilt evidence cast a suspicion of part of the defendant and proof required therefore not such as is to sustain a convic tion in criminal Carpenter, 464, case. v. 154 S. (2d)W. 81; Dilley, (2d) 1085; Mo. 76 W. Tracy, State Richardson (2d) 944, S. W. Pritchett, conclusively this case Tony shows that Hepperman died of poisoning. arsenical Furthermore, marriage, after their *9 evidence shows the defendant had desiring a death, motive his the acquisition of all or an interest in $6,000.00 lаnd valued at his perhaps acquisition $1,000.00. Now, of Ethel’s it is estab- since lished that he died from arsenical poisoning and that the defendant had a motive desiring demise, what are the facts and circum- connecting stances her showing with the crime and poisoned that she her husband? In place first bought fly she paper Seibert’s and the London
purple, both of which contain
easily
arsenic
a
in
form
in
soluble
course,
water. Of
no one saw her
poison
administer
but
it has
say
who could
he
necessary
produce
never been held
witness
poison
give
specified kind of
actually
his victim a
saw a defendant
Although
day.
it is
hour of
at a definite'
certain manner
possession
into
very
essential,
poison
important,
if not
to trace
(Mo.),
Smith
of
the accused
show he had access
it.
or
[State
Hancock,
(2d) 241;
State v.
Furthermore,
Taylor
There was her was ill, taking insisting such him to the dentist and thе extraction of Her all his teeth. her refusal permission reluctance and even Steve, anxiety talk to his brother at on one occasion. Her least diagnose his especially ills the local doctor and her statement to one that had eaten something poisoned he him. "When her hus- band told he sick she him Steve was told he seared because prowlers robbery. and the She also told Steve men three Tony came to the to kill house but no able to one was find them and there is indication that he had known appeared enemies. She dispose anxious to shortly marriage of the farm after her and to away, although move spent her husband had his life there. On one occasion presenсe him of Ethel she told if he would stop vomiting Tony all right. he would be Then, presence, her told his brother poisoned, although directly Steve he had been he did not anyone accuse having purposely done so.
There her undoubtedly treatment of suffering Ethel who poisoning. always diagnosed arsenical She her as first illness thing always one and then another and competent before physician was able to examine her and the cause determine troubles. She overly cashing concerned about $1,000.00 bond. There was the made, circumstance beer she some it was for her husband and some for others. it, It bitter when drank Ethel any unlike beer she had admittedly tasted before. There was the fake robbery. Tony’s There unknown A threаtening mys- killers. terious and supposedly letter Tony amorous addressed to which she yard. found in the bugs that there or were no flies requiring fly the use of either paper purple. London
692
evidence,
pages
hundred
over six
briefest resume
This
the
is
the
to sustain
evidence
circumstantial
but it
sufficient
is
con
and
other
each
with
are consistent
circumstances
conviction. The
hy
with the
and inconsistent
guilt
of her
hypothesis
with
sistent
the
juris
in this
poison cases
of the
In each
her innocence.
pothesis of
con
been
have
in each case
circumstances
and
diction all the facts
is
importance
element of
particular
some
in each of them
and
sidered
com
cogently
evidence
circumstantial
all
missing; but when
the
defendant’s
as
sufficiency
evidence
of the
weight
and
pelling
the evidence
in which
only
case
poison
guilt
jury. The
was for the
461,
Mo.
Nesenhener, 164
v.
is State
insufficient
completely
held to be
that the
proof
not even
230,
there
65 W.
and
that instance
S.
ad
to have
supposed
poison
deceased died
fully set
and circumstances
compare
facts
and
ministered. See
David,
v.
poison cases: State
Missouri
considered in the other
forth and
34 W.
301,
S.
“The instruc accompanied explanatory or сircumstantial evidence” under which- quality and of circumstances quantity tions to 'the consequently and upon such would be sustained a conviction evidence and circum jury “upon it facts was not error to instruct the so pointed solely upon often been stances” rather than the facts. hasAs strongest frequently proof out circumstantial is fact. Taylor, supra; Koelzer, v. We think cir supra.] [State poison cumstantial evidence showed the kind administered closely administration,' although enough time and manner of its necessary any specifically jury it not to find more instruct definitely poison than court did in this instance the exact kind of any place time and it of its administration more than is not necessary specifically chаrge general except facts terms same Taylor, in the information. supra.] urged It is that the court’s instruction on circumstantial evi prejudicially dence was require erroneous because does jury to guilt find “that the evidence consistent with her ab solutely every with hypothesis.” other reasonable As inconsistent it, terminology we understand insisting on exact is here in a circumstantial evidence instruction contends Moxley, 102 certain, compels definite the use of language.' languagé But that compel case does not the use certain a formula exactly which must in each and establish followed a con requisites' for hypothesized every ease. instruction *11 circum “but convict the on and with concludes viction must cоnsistent be proven evidence alone the circumstances stantial’ conclusively to must, together, point taken so and with one another her every of innocence” hypothesis reasonable guilt as exclude her language appel than us, emphatic the which, it seems to is more number instruction, together instruction with lant asks. The whole proved substantially jury “the five, circumstances advises the hypothesis that each other and with the must consistent with be theory of inno his guilty, is inconsistent with the defendant and guilt.” that- hypothesis,'except of every with reasonable cence and 354, 357; 342, 157 S. W. l. Maggard, c. [State Conway, Hancock, David, supra; State v. supra; State R. (2d) 128, 131; 154 S. 89 A. W. L. argues it Relying.on Hyde, supra, withdrawing “F” for to refuse Instruction error thе court was concerning purple London jury’s the evidence consideration poisoned with London the deceased was because there no evidence purple-and the purchase London purple. The State of showed ap Tony’s after death- after was found in the house and package however, objection, arrest. with this is that pellant’s The trouble fly no reasoning paper. apply would the Seibert’s There same fly any more there poisoned paper, he was with the than evidence purple. London But the poisoned direct evidence he was with fly paper purple and the London evidence was that the State’s arsenic, purple examined and found to contain the London both arsenic, twenty-six per just cent label on the can said. And necessary evidence, even to refer treatises aside from it is not toxicology London purple on to learn that contains arsenic. The II, pp. 332-333) Encyclopedia (Vol. Americana article arsenic on says: undoubtedly ar compound “The most familiar of arsenic is general oxide, arsenic,’known .’ . public senious . or‘white extensively arts, in the . . . simply as ‘arsenic.’ This is used fly poisons; purposes. and . . . and for rat several other Paris ’’ green large purple quantities and London are used in as insecticides. Tony proof Hepperman died of poison The State’s was that arsenical ing. system, Arsenic was in his before and аfter found both his death. fly paper purple "Whether it was from the or the London no one knows—it could have been from both. But it arsenic and both case, therefor, Hyde contained arsenic and the differs from case cyanide it was Swope in which claimed that Col. was administered strychnine erroneously potassium and and it shown that the poison germs defendant had possession other forms and anything Swope different from administered Col. this instruc properly tion was refused. any all appellant assigns as error the admission Hepperman’s sick Ethel concerning and nature of
evidence cause of her relating the examination especially ness and the evidence theory objection hiiir arsenic. which revealed nails charge of bearing remote, had no is stated to be that it was preju her husband father and appellant’s poisoning Ethel’s her. relies dicially upon She placed suspicion of another offense being tried error when which it was held one cases of other and similar admit of the commission an offenseto v. Bux offenses defendant at or about the time. same ton, (2d) 635, typical the cases relied on.] certain, robbery being and the There the defendant was tried for defendant on proved commission of other robberies fully evening. proof reviewed the on the same The court cases other proof crimes and held that of the other *12 robberies purpose allowing proof rule the of and did not fall within the such purpose showing general enterprise. for the a or criminal of scheme proof Neither were the crimes so related to one another that of one prove tended to the other. also in connection this [See Lebo, Mo. 960, (2d) 695; 339 (Mo.), 98 S. W. State v. Austin exceptions general W. For S. other the in rule see cases 3 A. L. R. 1540. Space permit analysis not an does of exhaustive of the rules and underlying admissibility reasons them for the which of evidence shows to show the of tends commission an offense other than the one say for trial, which the defendant on suffice it that is to there are certain instances and crimes in which though may evidence such is admissible even
it prejudicial acquittаl be to a defendant’s as evidence pointing guilt But', to his if proof log- often is. of another offense ically proves knowledge, design intent or in the commission of the offense-charged for and which the defendant is on trial evidence such may may motive, identity be admissible. Or it show of the de- fendant perpetrator charged may the crime or it inseparable an charged, act from the act in which event evidence tending guilty show to the defendant of another crime is admissible. Or, if the charge evidence tends to establish the for which the de- fendant though is on trial it is prove guilty him admissible an- other offense. 426; v. Gruber 285 S. W. Wolff, State v. [State 1007, (2d) 436; Krebs, State v. (2d) 428; 2 Wigmore, Evidence, 300-365, secs. particularly relating by Sec. 363 to murder poison.]' any In еvent the applied poison rules as cases definitely by Hyde, settled supra, general where the rule all and its fully exceptions is parts discussed. criticism of case [For 2 Wigmore, Evidence, see being sec. poisoned As others 365n.] that admissibility identity case made the test of charged of the act previously indicated we sought and as have proved to be and that pf evidence case—circumstantial instant in the present is element that Hyde case, such Furthermore, here as poison arsenic. doubt though it is or mistake suicide negatives accident but, competent actually “it present; elements are ful that these means, the same defendant used other occasions prove that on c. Hydе, 234 Mo. l. effect.”’ with the same Consequently, there was no Shackelford, supra.]. nature, detailing the cause and of the evidence admission error diagnosed as ar which sickness Hepperman’s Ethel course poisoning. senical attorney permitting “in says court erred The out argument to make statement Dyer, in as set State, Mr. commenting failure the defendant’s assignment No. 20 of error declaring ‘That testify, erred in court further ” forty-third assign undoubtedly refers to Appellant evidence.’ ‘‘ remarks trial where it is stated: Such ment in her motion new testify.” record, being a comment defendant’s failure language used however, such discloses no court, counsel, objection apparently, such did was made objection did not and was questiоn not understand the nor compelled to rule on the statement. following reporter’s part is the official record argument: any are not here to attack individual
“We witness. We are here prosecute point something you that defendant. And let me out point at upon there that sat that chair that testified witness —was person under an assumed name? Was that was afraid to there *13 speak you, out his name and court, before this and before before jury? thing this the Can same be said of the defendant this case ? object
“Mr. Politte: We to that. He reprimanded should be for that statement. ‘‘The Court : That is in evidence. Dyer: “Mr. It inis evidence.
“Mr. Politte: object, want to further I there anwas ad introduced bearing here a different nаme than charged this defendant is here with, but there is no evidence that that ad bears the name placed defendant or paper the her. “The Court: There is to show she said she advertised way that because everybody she didn’t want know to her true name. “To ruling by which Court, defendant, by counsel, duly then and there excepted at the time and still excepts. Dyer: “Mr. That exactly. is it That is the . evidence. . . She her, said you to ‘Then are the woman that advertised in the news- I because Emma name Lee I used the said, ‘Yes. and paper/ she my know about advertisement.’ to my friends didn’t want must we record, which official that will be observed Thus argument was prosecutor’s fact, that adopt reveals as a comment ground that it and on the reаson objected for the to merely objection was testify. The first failure tó on the defendant’s counsel by defense statement and the second object that,'” to “We referred the advertisement no evidence that there
was that by her. The evidence paper in the inserted or was objection was no it to be and Dyer stated and Mr. court may that It be Eagan to it. Isabel testified interposed when com- it was a subject interpretation language quoted is obviously trial testify, but failure to defendant’s ment on the object of be the that to it or understand construe court did not so objection. counsel’s comment, a argument such Assuming, however, that the timely urge error because position it as no is “There can be no the time. objection interposed was not at proper and directly indirectly, to allude, either question but that it is' error behalf; testify statute in his own the defendant’s failure to although express limited to terms mandatory respect, in that it is its timely objection exception.” and requires proper and and Conway, (2d) 128, l. 154 W. c. State v. Mosier S. compare proper correct and (2d) To 245, 44 untimely objections Shuls, 329 Mo. insufficient see: State v. W. (2d) 94, McKeever, 101 S. and State v. assignment merit in this 22. For these reasons there error. evidence, a suppress part
The defendant filed motion to first alleges wrongfully unlawfully of which entered evidence, her home after parcels her arrest and “obtained certain information, articles and description the exact nature which is now unknown to defendant” but which the State intends to use and illegally which was obtained without search second warrant. The part says of the motion writing, the State intends to use certain purporting dying by Tony, declaration and prove the com- mission of certain other offenses the defendant which would greatly prejudice the if defendant’s case the matters were not passed began the trial before and the defendant asked the court inquiry things make suppress into these such evidence. The appellant assigns as error the an court’s failure conduct inquiry *14 into overruling motion this the motion. In with connection assignment appellant says it was error to receive in (the Exhibits and D paсkage C of London purple packages Fly Paper) Seibert’s they for the reason were obtained from the and, therefore, absence, without her consent in her house defendant’s ' . illegally. . daughter, spoken first while the exhibits was One of these they testifying. preparing for said Eagan, was She Isabel Fly Paper under the oilcloth and she found Seibert’s sale initialed it identification and cupboard, that she Hepperman course, gave This, of could and consti patrolman. it to a does illegal an search and seizure. constitutional tute unreasonable against search and seizure protection inhibition and unreasonable apply to unlawful applies only governmental action. It does.not by the defendant could not searches and seizures individuals so fly Steely, 327 suppress paper. as to the Mo. the evidence (2d) 938; Wilkerson, (2d) 794.], highway patrolman Hepperman
A he at the testified May 28, 1940, home can of London purple and that he found a gave which he another patrolman. When asked to describe it the objected counsel that the article itself would be defendant’s the best objection evidence. After London an purple he described the again made produced that the can'itself should best evi . again dence The court then consider motion to asked suppress, agreed which the court to do and counsel said: “Shall wé. presented again, consider it Your the court Honor?” Court: “Yes, you right.” if want.” Mr. “All “Over Politte: Court: ruled.” The patrolman identify D, State then asked Exhibit purple the can which he McMurray of London said he and found Dr. Hepperman kitchen. A description can, detailed of the its history identification preservation given. of its After pass counsel asked the court to suppress the motion to no other or objection further was made admission of the exhibit reason had been obtained in violation of the defendant’s constitu guaranty tional against unreasonable search and seizure. Defense then fully (ten cross-examined the pages record) counsel witness with he, A*mong things exhibit. other reference the witness said Tony’s permission obtained to search the house before he went It there. was not until-the cross-examination was concluded coun testimony sel asked that the regarding the exhibit be stricken for the reason it obtained an unlawful search and seizure. Assuming, therefore, position was in a to ob ject evidence, to the introduction of such for the reasoh it was ob
tained an unlawful search and seizure and in violation of her rights, constitutional she failed to do so until after the witness had fully been examined and cross-examined relative to it and such an untimely objection, especially when it was then surprise her, was a error, waiver if any, in' admitting the evidence. S., 1078C, C. J. pp. Sec. 516-517; Sinovich, [23 329 *15 698 (2d) 83 W. 1082, S. 336 McGee, Mo. 877; v. (2d) 909, 46 W. S. arti- relative to the Eagan had testified Early in the trial Isabel 98.] cles had testified store house, in the the clerks found in the fore- hence the defendant articles, of the purchase defendant’s they when her know what not if she did of them even
warned suppress was filed: motion to the admission error in was no all there But aside Whether suppress. overruling motion to of the evidence question unlawfully obtained was a evidence was or not the 348, Owens, 302 Mo. v. suppress; motion to on the determined [State motion is overruled After the A. L. R. 100; 259 S. W. 32 383.] (State v. timely objection question alive keeps the defendant 338 Hefflin, Mo. 128;W. State v. Tunnell, 433, 259 S. trial interrupt does not then 938) but the court (2d) 89 S. W. only determines but legality of the search seizure pass on the Owens, and relevant. competent whether the evidence [State supra.] in says court erred assignments error, In her supprеss merits of her motion failing inquiry conduct an into the by the again, however, are bound ruling on Here we and before it. then “the court be forth the motion and recites record which sets fully premises, in doth overrule ing informed and advised made by the defendant.-” Not suppress motion to evidence as offered said only legality by a properly determined' motion is the seizure to offer suppress the but the burden is the defendant illegality affirmatively of the evidence and demonstrate search prove Jur., motion seizure. The does itself. Am. Sec. [20 pp. 357-358; Berry (Mo.), 253 W. In face State v. S. 712.] a,dvised fully premises court’s recital that it was informed and in the we inquiry must assume that the court did conduct an or that the support motion, defendant offered nо evidence in of her otherwise she in preserved would have it this record and it could then be determined erroneously whether the court overruled motion. Wil liams, (77 12 App. 310); Mo. Caldwell (2d) 793; (Mo. App.), State v. Smith 653.] As the record stands there was no error the admission of the evi overruling dence suppress. or the motion to appellant assignments thirteen other briefs error, none of may they which be considered because are either not borne out record or aré insufficient in and of themselves. says Instruction No. 4 was erroneous because jury probability directs the to consider the of a witness’ statement but jury may fails to instruct that it also consider improba bility testimony. of a witness’ Aside from the fact that we find nothing instruction, of the kind in the which is one of the circum stantial evidence instructions previously considered, there is no such in the motion assignment objection or to the instruction could not now be considered. and, course, if found new trial Hayes (Mo.), S. Mo. R. [Sec. failed to instruct VIII that the court Assignments V and refusing X do not Instruction case erred all the law of the given have been why instruction should proffered forth set *16 instructing jury in the any part of the court omission the out point Sinovich, nothing supra; review. v. therefore, presents and, [State Glover, 709, (2d) Shuls, 330 Mo. 50 S. W. supra; State v. v. State (2d) 342 112 One of Wright, 58,Mo. S. W. these 1049; v. State 571.] saying assignments by “and more particularly on general concludes slightest is not the evidence of question the There sui suicide.” subject therefore, an instruction on nоt and, in case the cide 412; J., 386, Ludwig, pp. 70 Mo. 30 C. Sec. 165- called for. v. [State 166.] assigned refusing as error that the court erred in It is the withdrawing jury’s Instruction G the consideration against brother, Hep threats the defendant the deceased’s Steve assignment probably perman. This refers to Patrolman Barr’s tes timony speaking the Steve said: “That son-of-a- doing something, ornery bitch me of accused bastard should be good says is killed. no his own brother He he isn’t.” It necessary not decide whether the statement threat is a or should objection have withdrawn because been there was no whatever to the evidence when it was offered. Since the evidence came in objection subject being without it is not stricken or withdrawn. Peebles, 973, Young 337 Mo. 87 W. (2d) 167; v. S. Stаte v. [State (Mo.), (2d) 24 W. S. 1046.] assignments XI, XV, So XVI, it is with error XVII and XIX admitting that the court erred in certain evidence, reference to the objection record reveals that defendant made to the evidence assign when was offered and cannot now its admission as error. Buckner, 229, v. 335 Mo. (2d) 72 S. W. 73; Shawley, State v. [State 352, (2d) 74; 67 S. W. State v. Barbata, 336 Mo. 80 (2d) 865; Everhart, W. v. S. Mo. 604; S. W. Young, State v. supra.] assignments
And same true of that the court erred in indulging in comments remarks to defense counsel, exciting ap plause and from the cheers audience and in permitting a at State’s torney argue facts not evidence prejudicial defendant. allegedly prejudicial court’s remarks are not set out in either assignments of error motion for new trial. v. Zoller [State (Mo.), 1 W. (2d) objеction S. prosecutor’s to argu 139.] any point ment does not out statement which was not true. An ex portion argument amination of reveals that some of it in answer argument, to defense counsel’s and the statement seem to and the reference one evidence, except by the supported be
us to not and was to that statement objection on the did not rule court All which matter. any on the further action requested to take Reagan (Mo.), review. nothing for this court’s presents [State 79; (2d) 44 S. Painter, 329 Mo. 391; Miller, 263 (2d) 82; State v. 1132, 34 W. Cade, S. (Mo.), 39 S. W. (2d) 784.] State v. Godos 326, 172 W. Mo. court are that the erred remaining assignments The two though trial court withdrew admitting certain even evidence disregard it. There are instances jury to' and instructed the has imprоper evidence when case will be reversed in which a criminal given with though an instruction court has even been admitted prejudicial effect ob if its drawing jury’s consideration it from the Martin, 229 action. viously despite remains court’s [State but But, only prejudice must there be not 620, 129 S. W. court and request further action move the' the defendant should may court assume the de discharge jury, the trial otherwise ruling. such with action and There was no fendant to be satisfied may time in a motion raised the first motion and the matter (2d) 425; v. Robinson for a trial. new *17 Sinovich, supra.] Bohling, CG., judgment affirmed. concur. Westhues foregoing opinion by Barrett, C., adopted PER CURIAM:—The judges All opinion as the the court. concur. at McGaughey, Relator, of H. D. relation of Missouri Grayston. M. 335. Charles Banc,
Court en June 1942.