124 Mo. 448 | Mo. | 1894
At the March term, 1894, of the criminal court of Buchanan county, the defendant was indicted for murder of the first degree for having killed and murdered Jennie Punshon, his wife, on the fifth day of January, 1894. At the same term, defendant was tried, convicted of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for a term of twenty years. The case is in this court on his appeal.
The record discloses the following state of facts: At the time of the homicide defendant and deceased were husband and wife, but for sometime prior thereto they had not lived together, the defendant staying with his mother and the deceased with her mother; that on the morning of January 5,1894, the defendant met the deceased on the street in the city of St. Joseph and they went to the residence of his mother, Mrs. Punshon; that when they arrived there he took her upstairs and locked her up in a room; that he took the key and went down stairs, where he met one Miss Cooper, to whom he said: “Jennie is upstairs; come let’s go up there.” They then went upstairs, when defendant unlocked the door and they entered the room, in which the deceased was sitting on a chair with
At about half past 6 Mrs. Windish, the mother of the deceased, and Fred., G-ardy and John Windish were in the kitchen at the Windish home, when the defendant rapped at the door and was admitted by his wife; a single-barrel shotgun was standing near the door; when he came in, Mrs. Windish, the mother, stepped over and picked up the shotgun; when defendant said: “Oh, I guess not,” drew a revolver from his pocket and said: “I’ve got six loads here, enough for all; I will just kill us all;” said he wanted to talk to his wife, and when her mother remonstrated and started toward the front door, defendant said: “Do not go, I’ve got the front door guarded,” etc. * * * “I will kill her (Jennie),” and thereupon drew his revolver upon her. In the meantime Freddie, the brother, was begging the defendant not to shoot. Defendant went into the third room, saying, “Here, Freddie, I want you to witness this.” Pointing his revolver at his wife, he said: “Are you ready to die?” The brother again implored him not to shoot, but to leave; that Jennie was sick, and to leave her that night anyway; when the defendant said to his wife: “You lie down here where it is warm.” “Freddie,” he said, “if you will open the door I will go;” and when the door was open he grabbed up his
Defendant and his wife were next seen at Beeninger & Co.’s saloon, nine blocks from the Windish residence, where the defendant went in and requested to use the telephone in order to call a carriage. The deceased was bareheaded; seemed to be in distress; was crying. They waited there until a carriage arrived. To one of the bartenders of the saloon, defendant said that he had taken his wife from his mother-in-law’s house; that the people at the house had fired two shots at them when they were leaving; that they had staid down at Twenty-second and Messanie for about three-quarters of an hour; that the whole neighborhood was out scouring for them. He showed the bartender a white apron he had under his coat; said he had made his wife take it off so that the .people could not see them in the dark. When the hack arrived, it was in charge of T. H. Donnahue; to him the defendant said: ££I telephoned for Jim Donnahue; I didn’t telephone for you; this is particular; I do not want you to say anything about it; I was over at my mother-in-law’s and raised hell over there.”
The defendant and his wife got into the carriage; the defendant instructed the driver to drive to Eleventh, below Doniphan avenue. After the carriage had proceeded about eight blocks to Fifteenth street, below Reniek, the driver heard a pistol shot, stopped his team, got down and opened the carriage door, found the deceased sitting on the right on the back seat, the defendant on the left, the deceased’s head leaning against the cushion and her face bloody, a bloody pistol lying on her bosom, the defendant’s
The testimony also shows that the deceased had repeatedly threatened to kill herself, and that she was in the habit of carrying a revolver. There was also evidence tending to contradict the witness, Miss Cooper, in her statement that the door was locked to the room in which she found the deceased at the mother’s of defendant on the evening of the homicide, as well also as to several other matters. .
The first contention is that the court committed error in refusing to permit defendant to prove the pleasant domestic relations that existed between defendant and deceased; what she said as to the cause of her absence from him; the threats to kill herself;- the reason therefor; that she was an expert in the use of firearms and was in the habit of carrying a revolver.
It was entirely proper for the defendant to prove that his relations with his wife were of an affectionate character, and that he was an affectionate and devoted husband, in order to show the want of motive to commit the crime for which he was on trial. But such facts could not be shown by the statements of the wife, made before the homicide, for they were mere hearsay. The only authority to which our attention has been called as supporting the .contention of counsel for defendant in this regard is State v. Leabo, 84 Mo. 168. In that case the defendant offered to read in evidence the letters of the deceased wife to a friend written from three to four months before her decease, containing expressions of great affection for her husband, which, upon objection by the state, were excluded by the court. Upon an appeal this court reversed the judgment of the court below and held that the letters should, have been permitted to be read. The opinion is bottomed upon State v. Watkins, 9 Conn. 47; State v. Green, 35 Conn. 205; People v. McCann, 3 Park. Crim. Rep. 294; People v. Williams, 3 Park. Crim. Rep. 84; Willis v. Bernard, 8 Bing. 376; Jacobs v, Whitcomb, 10 Cush. 256; Wal
In State v. Watkins, supra, it was held permissible for the state to prove, for the purpose of showing a motive for the murder of his wife, that some months before and up to that time an adulterous intercourse subsisted between him and a Mrs. B. And in the Green case the defendant was on trial for the murder of a woman to whom he had been married and with whom he was living as his wife, and the state was allowed to prove that he had a former wife still living; that he had married the deceased under a different name from that which he had before borne; that he had imposed upon her by false letters and papers, and that he married another, woman five weeks after the death of the deceased.
In People v. McCann, supra, the state was permitted to prove that, in November, 1855, the wife made a complaint against her husband for an assault and battery, and on his trial for murdering her, several months thereafter, it was held that it ‘ 'might properly be considered by the jury on the question of motive.”
In People v. Williams, supra, it was held that the prosecution was properly permitted to prove that some lime before the killing of the wife she had complained of her husband as a disorderly person, and that he was adjudged to pay two dollars weekly for her support.
The matters that were held to be admissible as evidence in each of those cases for the purpose of showing a motive for the killing, were acts of the deceased, not merely her statements, as in the case at bar. The other cases cited in support of the opinion were either actions for criminal conversation or civil actions growing out of the domestic relations of husband and wife, and exceptions to the general rule. It will thus be seen that the principal case is not supported by the author
The statements of the wife which were offered to be proven were not part of the res gestee as exclamations of pain, nor were they with respect to her health as in Regina v. Johnson, 2 Car. & K. 354; Goins v. State, 21 N. E. Rep. (Ohio) 476; State v. Moxley, 102 Mo. 374 (see, also, 1 Greenleaf on Evidence [14 Ed.], sec. 102), and were properly excluded; and so were her statements to the effect that she intended to kill herself, for the same reasons. She was no party to the prosecution and the state was not bound by anything she may have said. McMillen v. State, 13 Mo. 31; Commonwealth v. Densmore, 12 Allen, 535; State v. Nocton, 121 Mo. 537. It will not be seriously contended that, if defendant’s wife had been living and he had been indicted for assault with intent to kill her, anything she might have said in regard to their amicable relations would have been admissible against the state, and if not then admissible the fact that she was dead at the time of the trial did not make such statement permissible.
Nor do we think the court committed error in excluding the evidence which was offered by the defense tending to show that deceased was an expert with a pistol. It had no tendency whatever to show that she killed herself or to show that defendant was not guilty.
Another contention is that the court erred in instructing the jury on manslaughter in the first degree. That there was no evidence whatever upon which to predicate such an instruction is admitted by the attorney general in .his printed brief, but he argues that, of this, defendant can not complain, because, we presume, of his conviction of a less offense than that for which he was indicted and put upon his trial. We do not understand this to be the law. While, by statute, it is
Defendant asked the following instruction: “Before the jury can find the defendant guilty in this case they must believe from the evidence beyond all reasonable doubt that the defendant on or about the fifth day of January, 1894, at the county of Buchanan and state of Missouri, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, shot with a revolving pistol, and killed the said deceased, and unless the jury so find they will find the defendant not guilty and so return their verdict.” The court modified the instruction by inserting, after the words “not guilty” “of murder in the first degree” and then gave it as modified, and in this it is urged error was committed. The instruction was evidently drawn upon the theory that defendant was either guilty of murder of the first degree or of no offense at all and the modification only made it more explicit and confined it to that offense, in which there was no error. It is not
The fact that a note was found in the bosom of the deceased after her death could not, for the same reasons that exclude any statements she may have made, have been read in evidence, and was not a proper subject of comment by -counsel before the jury, as nothing but vague and uncertain conclusions could have been drawn therefrom.
The conduct of the court with respect of remarks made by it in connection • with various of its rulings during the trial and the treatment of counsel for defendant as well, is severely criticised by them in their brief, because of their effect upon the jury in prejudicing their minds against the defendant. Some of the remarks of the court as set forth in the bill of exceptions were unseemly, but evidently not intentionally so. Trials, especially of the character of this where a human being is upon his trial for his life, should be so conducted that no critic, however astute, could discern any feeling upon the part of the court, or anything that would have the slightest tendency to indicate that the scales of justice were not evenly and exactly balanced. It is to be hoped that upon another trial of the cause no one connected with it will have cause to complain of the action of the court in this regard.
The evidence tended strongly to show the defendant guilty of having willfully, deliberately and premeditatedly murdered his wife, and that unless he did do so, he was not guilty of any offense. The judgment is reversed and the cause remanded.