*1 petent jurisdiction that provisions of the statute imposing' them provisions. provisions violate constitutional The with reference to per a flat two cent rate are not intended to come into unless effect, adjudication and until such an That 'made. contingency has not happened, happen. questions never may The raised appel- purely lant under are this head therefore academic. It will time enough pass upon validity for us provisions challenged by aggrieved when some one who feels through their at- tempted enforcement. judgment dismissing plaintiff’s of the trial court bill is affirmed.
All concur. 116. (2d)W. 56 S. Appella William James State v. n t. Two, December
Division *2 Heffley Gross and Jno. E. Bridgeman, K. D. for appellant. B. B. *3 el, Weightman, Attorney-General, Bay Assist- Stratton Short Attorney-General, respondent. ant for Appellant was FITZSIMMONS, guilty manslaughter found C. *4 punishment and his years penitentiary. was assessed at seven in the judgment appeals. charged From the He with in he was murder the degree causing wife, second for Payne, the of Lillian death his striking couple on on piece her the with a of wood. head The lived County their farm in five Oregon, Holt about miles of south and the alleged April assault have 1, 1930, ap was been made on Payne walking wife pellant and his were home. Mrs. died nineteen days hospital Joseph, County. later in a in St. Buchanan The in County. change Upon formation was filed in Holt venue, appel of County. lant was tried in Andrew At twice trial the was first degree convicted of murder the punishment in second and his was twenty years’ imprisonment. fixed at A granted was and had, resulted, stated, and it as has a manslaughter been in verdict. assignment I. first The is the error refusal of the trial court to sustain a the Appellant demurrer to evidence. had and deceased twenty-five years. been married about was She his second and wife marriages. April he had children from both 1, 1930, On and left, a school bis home, noon, wife their sometime about attend away. They across house, district election at the school a mile walked latter The public they a met Charles Lee. fields to road on which Payne then election. informed he was too late for the school get expected a her she inquired called his wife fool and how down. get the them taxes down if she did not to the school vote distance, a along road short couple walked back with Lee the "When they and short cut home. then entered a to take a wheat field their they mile from well into the field and about one-half were were object put Payne, stoop, pick up an home, appellant, Lee saw object post a it his left arm. was small and was not under con- Lee, piece in information. of wood of the dimensions stated along Guy, the same tinuing road, met Arnold who turned into Guy was half Paynes crossing. about field were When which “standing Paynes woman over mile in the field he saw (indicating.)” explain. like further this the record does not daughter years and a Payne, couple, Viola fifteen old parents pupil school, district at home when her went to was Upon departure, neighbor their she visited a named the election. back Forney, that she was when her but she testified home mother cut parents She then observed her had a returned. her head and blood clotted about the wound side of parents which her hair. Viola went into the field over her in blood, pool post, there also a about had walked and found fence projecting diameter, with nail from one two or three inches post about nail. She post end. There was blood on laid the it fence, find it when she for against but she could not searched given wound, for to the later. No treatment field, as her days, worked in the corn had been custom. In next ten meantime, complained pains head and mouth. Her she jaw not eat. went was swollen and she could She to a doctor at again Missouri, April 10, on On latter Oregon, date, Joseph to a in St. the doctor where sent April 19. died grounds appellant sup principal advanced One of wholly is that evidence was circumstantial of the demurrer port with his innocence. his motion for a not inconsistent and was daughter, conceded new trial piece wood, with the described-in the infor Viola, him connected *5 Payne motion in his that Viola he contended “demon But mation. mentally that she was so weak on witness stand and strated worthy testimony was not that her consideration irresponsible so unjust permit to unsafe and verdict to stand it would be and that testimony of this based any on witness. She in wise was which testimony was in trial her times the case and at each testified three principal ones were Of materially these differences the different.” home of length Viola was at the disparities to of time she found Forney April 1, on also as to where the afternoon of frequent pool Viola testified to post of blood and the in field. quarrels her mother. one in which her or struck father threatened testified, a water bucket quarrels, threw these Viola At lap. in mother’s baby, which mother hit the and also the But later point, baby year one old. Viola stated that the was one age appeared baby eight years latter old, said that the and the hold as us to Upon to be is not for established. the record it mentally matter of law that Viola was weak demonstrated that she so irresponsible worthy considera- and so that her was not judge was testi- tion. The trial saw and listened to Viola while she fying. opportunity conduct, her He had an demeanor observe self-contradictory He appearance. her statements. He heard charging later had him that Viola before the motion for a trial he, motion, mentally irresponsible. By overruling weak and effect, appellant’s appraisal in of Viola as a wit- accept refused to ness. The record not warrant soundness does us to ruling respect credibility. this to Viola’s here, urges in
Appellant, in his motion for also a new support alleged of his in- demurrer “the wound have been upon flicted was not a mortal wound deceased the defendant from which It the deceased died. is insisted the State de- wound, which poisoning ceased died from tetanus contracted alleged head, it is but that defendant inflicted the deceased’s there no substantial evidence to show that this is true.” Eberhart, Mrs. Ethel at her two whose house called on Oregon, April visits to the doctor the town of testified that on Payne’s side, head and mouth were drawn to one and it was difficult for her talk or to swallow. These conditions were April 13, day hospital. much on worse that Mrs. went to the Oregon doctor in scalp testified that he found a wound on the Payne’s long left of Mrs. side head. It was about an inch ex- gave treatment, to or imarlv skull. truded down to the it a.local He April observed, the first time she called on visit., her second tetanus,” days later, developing three that Mrs. “was lockjaw. rigidity jaw She had muscles. of the neck and of only mentioned, wound discoverable him was the one and he germs through was of that tetanus entered that wound. had again He saw her Joseph at St. considerably
condition was worse. The doctor further testified germ any through tetanus could be introduced break in skin *6 gave difference. This that the of the break made do doctor size opinion that Mrs. it his died of tetanus. as and, at Tadlock, Joseph, practicing physician Dr. D. W. a of St. County, Payne, coroner of Buchanan time of the death of the superficial body a exami- officially the made viewed to of the head scalp He on the left side nation. found wound scalp The made, which reference has been but no other abrasions. itself, produce He also swore, sufficient to death. wound he was not germs into human only that can introduced testified tetanus be system through open hypothetical In an wound. answer a predicated Dr. Tadlock symptoms shown Mrs. from, gave suffering’ also opinion that tetanus. He it his she was germs through the expressed that the tetanus entered autopsy or make scalp. perform in the The coroner did not an lesion He microscropic taken from wound. a examination a culture permitted testify stated in the death was not to the cause of death death prepared. which On issue the cause of certificate he follows: Coroner Tadlock on cross-examination as testified “Q. body, Now, doctor, you examination made of the from the Payne’s you wound, now after Mrs. made of the*examination willing say tetanus death, you not she died from would even Well, just limit- A. poisoning, from that examination? you, would say I it.” ing that, it that died with couldn’t she “Q. your you after And from of the wound examination made you die, poison, say tetanus could not she did if she died of you particular wound, could the tetanus into that entered —from I your only lesion, would Well, A. one examination? since we found germ particular say enter that lesion.” tetanus did objection record admission in evidence of a court sustained an to the produced by laboratory which a technician complete he a exami- died. An undertaker that made testified only one body woman and found nation of the unclad of the dead wound, namely left side of the head. one on the sixty-eight years age and behalf, appellant, his own man returning home farmer, that, wife were testified while he and his field, hit him chunk which she threw a across wheat part here” it and hit “behind He threw back shoulder. He being by the denied body not shown record. indicated post. with He testified her in a chunk or he hit the head with through crawling injury that his wife received head testimony way He denied the wire their home. fence on barbed Appel- quarrels and blows. daughter, Yiola, threats, as to his under- said to the local on cross-examination that lant also denied head was caused his wife’s Oregon taker at that the wound undertaker, family an fall kitchen. The called accidental appellant. rebuttal, affirmed this statement of phase is that the pith of the second of the demurrer accept not this view of
corpus
not shown. We do
delicti was
*7
Ed.)
473,
(4
Kelley’s
and Procedure
sec.
Criminal Law
record.
corpus
“In
homicide the
correctly
rule is
stated thus:
criminal
the
of
being
agency
of a human
and the criminal
delicti consists of death
may
proved
circumstantial
by
another as the means thereof and it
in support
evidence.” Five Missouri cases are cited
of this state
agency
proof
law. But
criminal
of the accused
ment of the
the
of the
delicti,
corptis
although
agency
is not
essential element
such
an
of the
must be shown after
fact of a crime has been established
order
the
concurring opinion
may
separate
that a
be had.
of
conviction
See
Joy,
489,
285
7,
v.
315 Mo.
S. W.
JJ.,
in State
White,
BlaiR
494;
306,
(2d)
l. c.
44 W.
Gillman,
also see
v.
329 Mo.
S.
State
opinions
that
the essential
older text-books and
held
elements
corpus
proved
of
circumstantial evidence.
the
delicti could not be
recognized in Missouri
But that rule has not been
for some time.
205,
Schyhart
(Mo.),
S. W.
l. c.
In the
v.
[State
211.]
Payne
clearly
ease,
Mrs.
died
it was
established that
instant
1,
April
1930;
April
the same
hospital
Joseph
19,
a
that on
in St.
year,
washed at
scalp
a
which was not even
suffered
wound
symptoms of tetanus.
time;
days
and that a few
later she showed
note
'Oregon
observe or
did not
appears
It
signs
local doctor at
10. But
April
him on
Payne visited
of tetanus when Mrs.
developing
she was
again
April
13,
when she called
he saw
hospital
in the
dread
her
disease. And when he visited
is
that tetanus
evidence
she was much worse. There was abundant
system
the human
which enter
disease,
germs of
an infectious
through
abrasion on
wounds,
skin
there was no other
scalp. The
body
Payne
except
mentioned cut on
develop after
possible
it is
for tetanus
medical witnesses testified
germs
have
healing
through which
closing
or
of the wound
that,
passed
body.
they
in their
into the
were definite
wound.
scalp
was due to
in the ease of
the disease
not cause
point
itself could
There is no merit in the
that the wound
all,
objection
most, if
mortal
might be raised to
not
death. The same
the ex
consequences of
woundings. Death
internal
comes
or fractures
causes concussion
wound.
If a blow on the head
terior
injuries,
Other
may
brain disturbances.
skull,
there
arise fatal
con
as a
with death
minor,
up pneumonia,
usually
sometimes set
traumatic, that is to
is called
sequence.
pneumonia
In these cases the
might
in tetanus
result
scalp
A
wound that
say,
caused
a wound.
as
of death
proximate
cause
as
fatal infection should be
other
of the
might crush the skull
point that
same
a bead wound at the
sufficient
was
brain. There
mortal disorders
produce
victim and
appel-
question whether
jury
it
circumstantial
make
evidence
scalp wound
thereby
caused
post,
with
lant struck his wife
demurrer
opinion that the
resulting
death. We are
in tetanus and
rightly
overruled.
that,
County,
Holt
testified
George
II.
E.
Gelvin, Sheriff
went to
Joseph,
in the
in St.
you hit her
appellant:
“Tour wife said
farm and
said
“I
I hit her
post.”
answered:
didn’t.
in the
with a
head
testi
the sheriff
chunk.”
cross-examination
with a
On
head
Forney
Payne.
Joe
not
with Mrs.
fied that in fact he had
talked
between
present
this
testified
ivas
and heard
conversation
that he
appellant.
sheriff
admission
assigned
objection
Forney
sheriff and
over
*8
many
"which
of murdered
Appellant
error.
cites
in
statements
cases
be
death,
either
persons
to be inadmissible
made before
were held
they
they
part
gestae or
were not
cause
were not
of
res
because
dying
In
and substance of
declarations.
the instant case
meat
appellant
that
Sheriff
statement
the admission of
Gelvin’s
may
sheriff
had
his wife with a chunk.-
be conceded that the
hit
It
ascribing
Payne a
which in fact
used artifice in
to Mrs.
statement
ad
she
him.
is well
did not make to
the rule
established
thereby
by
missions
not
inadmissible.
obtained
such means are
made
128,
136,
74
l.
court held
Phelps,
In
of
v.
Mo.
c.
the case
State
authority of
defendant
to be admissible
confession of
Phelps
Patterson,
v.
III. The oft is again made here that failing “the court in properly erred reprimand” to rebuke and Attornev-General, argument certain Assistant “who closed the for the state, jury disregard and to instruct argument.” to such It what, would not add an atom the body of the law to out set Attorney-General Assistant said, objections and what counsel ap- for pellant As made. happens too often the Attorney-General Assistant iii argument his statements, made likely which were more to excite the passions prejudices of the jury than to aid it in its deliberations. But, as we read record, appellant merely objected argu- that the ment was improper. The court took this view of it each in- stance said in substance that argumentative statements were not supported by the evidence. The gave trial court such corrective relief as the form objection of his warranted. assigns the trial court Appellant as error refusal of
IV. newly-discovered ground grant evidence. trial on the witness, Mary Forney, on cross-examination State denied that she County prosecuting attorney H. Dungan, told M. former Holt hearing attorney prosecuting preliminary who at the time how case, and the former of this not see Viola did known so about this have could have much case could gone fence post, out there the wheat field and discovered the Forney Mary Viola was at the home of the witness witness nearly Appellant until dark on afternoon alleged Dfingan motion, supported by affidavits, that Mr. his Forney testify did him new trial would make the state making. Corbin ments which cross-examination she denied appellant, present son of at the trial testified that he was at the time Forney attorney prosecuting make to the heard the state question. Dungan Mr. ments in at a new trial be purposes and it material for would but would cumulative *9 sufficient to sustain motion for This is not a new contradiction. Miller, (2d) 407; 37 W. (Mo.), trial. Willis S. v. v. State [State 26,Mo. S. W. 1104.] assigns Appellant giving V. as error the In State’s error, If for a struction this be the motion does not disregard specify it, we must it. and therefore R. S. [Sec. any appearing error, judgment There not reversible is 1929.] Wesfhues, CC., Cooley and affirmed. concur. by Fitzsimmons, C.,
PER The foregoingopinion CURI A M: judges adopted All concur. as the of the court.