*1 ease, think that is not moot the reason that parties these right Moreover, rights. public to a of their final determination liquor laws, proper be affected enforcement will Bird, is, also, a matter of State ex rel. Brown et al. costs. W. (2d) 73 S. 821. legality to test plaintiff
If the wanted the action evidence, suspension, relator Ms orders of and not review the Spencer rel. proper remedy would have certiorari. State ex been Anderson, (2d) 101 W. 530. S. provisional prohibition For the stated, reasons above our rule in is made All absolute. concur. Wynne, Appellant. 38548. 182 v. Grace No. Two, September 5,
Division Joseph L. Judson for appellant; Shapiro and-Clyde Julius C. Taylor of counsel. *3 MeKittrich, Hewitt, Boy Attorney General, Govell B. Assistant Attorney General, respondent.
BARRETT, 13, C. -A September has found that on 1934, Wynne Grace Mary tried, shot and Thompson. killed She was guilty found years and sentenced imprisonment, to fifteen December January 2, 1942. From the facts and circumstances 1941— detailed by the State’s reasonably witnesses the found that shooting killing Thompson Mary purposefully she acted and with malice 'guilty therefore degree. of murder in the second
Briefly background defendant, the homicide is this: the Grace Wynne, and John “Jack” were married in 1913. She years divorced him seven later because of “other women.” left She City Kansas January, and in divorce, within a month Wynne. married They Arthur child, Dorothy one In the Lou. meanwhile Mary. Jack married At the time Thompson were divorced he deputy clerk’s office circuit salary at a of about $125.00 month. he became an Subsequently politician, influential operator a successful slot machines and *5 man of By considerable means. frequent 1925 he was a attentive and Wynne’s visitor of Mrs. Oklahoma. In 1931 she moved to Kansas City divorcing Wynne and after lived in the Pickwick Hotel. Thompson paid bills, all her bought her an supplied automobile and money. room, kept her clothes paid daily He visits to some her with spent night her. frequently with there and killing were
According evidence the facts of the State’s homicidal threats Grace went to the that after numerous 1934, shortly eight after o’clock and waited September 13, on home Mary home from a porch bringing on that Jack was knowing stepped front out from As Jack unlocked the door vacation. post Mary five a .25 caliber automatic a and times with behind shot riecocheted Grace in the forehead. One bullet and struck of the matter that she went to the Grace’s version settling purpose for their home with Jack prearrangement triangular particularly discussing and for the affairs says money Mary amount of to have for divorce. She a stepped porch “John, like upon said, as she she I have come face, you do, Mary” Mary jumped told me. How do her her, they fighting. The scratched and kicked fell to the floor thing next felt if she knew she as she had been hit in the head crawling steps. a brick as and became unconscious she was down the She did not a and that did not shoot testified that she Mary. failed,
The admits has for that she in her motion assign trial, specify new as C giving error the of Instruction expert and the relating urges admission of to firearms but she power the court has its discretion to consider matters these and that the they plainly court should do so are error affect rights prejudicially. substantial power Whether the court has urged we need not decide. has, exigencies Even if it of this case are compel not such as to its exercise. complained The matters assigned of were not as error or called to the trial court’s attention appellant’s motion for a trial and new under the statute we precluded considering are Mo., from them. R. A., 4125; sec. State Bailey (Mo.), (2d) 380; 169 S. W. (Mo.), v. Lazie S. W. 122; Sharp (Mo.), 300 S. 501.W. arguments it with
So her that the court should have sus tained her quash juris motion to indictment and her plea to the alleged diction in which it was jurisdiction the court did not have try previously adjudged she had been because insane probate court. merely The record recites that these motions came hearing for and were overruled. On this state of the record there being nothing on the face of the record or the (State indictment Finley, 193 Mo. 942) showing S. W. invalidity juris or diction nothing regard. us review in motion plea prove and the do not themselves in the absence of the evi any, dence if produced, support them, we cannot the court erred. pleas Motions and of this nature not different are from mo pleas tions based on the assertion that defendant had not had
282 (2d) hearing 39 preliminary (Mo.), v. Lettrell S. W. [State 307 juvenile Miller, jurisdiction or that v. court had [State 556] 365, plea jeopardy. 270 S. W. or a of former Mo. 291] 106 Revard, 170, Mo. 705; Rozell 279 S. W. 341 (Mo.), State v. 906; 434, S., 660, W. 22 J. 679. 426, pp. C. secs. S. charges, court instructed In addition to formal insanity. The degrees murder, jury on the three of self-defense and “insanity” jury they if found court defined and instructed the that they Wynne that Mary was insane when she shot give acquit court to urged It is that it was error should her. prejudiced the instruction because it a mere abstraction and ad jury-to that assume she would cause that killing contending way of confession mitted the act and was It for her acts. legally responsible and that was not avoidance she insane there whatever that she was is insisted that was no evidence shooting although time she was or even claimed to be at the asylum adjudged 19, 1934 and to the on November committed insane sanity appealed judgment and from a of restoration of Joseph in St. which necessary in 1940. to detail circumstances not give to pass caused the to the instruction nor whether have court insanity and any pointed because it is out there was evidence appellant prejudiced we cannot see the instruction how killing manner did not tell the that the claimed. The instruction way of insanity plea by confession that admitted ab says merely gave an appellant avoidance. As the instruction they her insanity that if found stract definition of and told they acquit Even there was no to be insane her. if should injured in insanity see we cannot how injured by an instruction struction more than defendant is no evidence of either. State on alibi self-defense when there is 422, 500, 625; Pohl, 310 W. State v. 170 Mo. Millsap, Mo. 276 S. Mo. 161 In 695; 347, S. W. Bunyard, 756.. sanity similar circumstances been held instructions under harmless, 255, State, 171 Ark. 283 S. W. error Chriswell v. is our view State, 46 Okla. 287 P. And it Watson v. Or. in prejudice certain demonstration .absence p. 24 C. sec. S., struction in case was harmless. J. Dorothy daughter, Lou, for her testified The defendant’s twenty-one at the time of the trial. She about mother. She was he acquainted with Jack when stated she became little call on her mother. She was then but a came to Oklahoma brought presents He “Daddy Jack.” her girl. called him She Dorothy Lou and her mother Jack met of her welfare. was solicitous City. six. they to Kansas She then came the station when at daily Jack and saw Hotel almost Pickwick She went Mary. married She he was knew her mother. She knew thought they were spent night with her mother. She often Jack pleasant. The time she together relationship last happy and their Joseph That when Jack went to St. Jack was fourteen. saw and drove them took mother the institution there from gave promised $2500.00 occasion he the mother Topeka. On *7 meet in to them Dallas New Orleans. attorneys said: argument closing
In his one of the prosecuting in to Jury: of the I am to answer Mr.. “Gentlemen ashamed again, Walsh, you Walsh tells I am remind of it but Mr. ashamed to you among accomplishments that this defendant raised that other that fashion which she raised daughter. daughter, of the in Think insight of the you character gentlemen. give that an of the Will not fourteen, pld years John and when defendant here? When she was having Mary to Ham- married, married 1925 was been in daughter in mond, prior time, to remains that gentlemen, Wynne and Wynne Mrs. divorced from Arthur Oklahoma before was married, Mary Hammond, both of them John was married to while daughter and. she reared circumstances, gentlemen, these under ‘Well, my you proposition had the with the audacity confront daughter Why, gentlemen jury, of the good training.’ you go across the adultery, we call it and when State of Missouri going to believe line it of the Mann Act. Are is a violation you?” these what tell witnesses argument prejudicially that urged
It is that the so erroneous argument is that discharged. It jury should been said Mann with reference for The was' abuse. statement uncalled court,, comment but as that improper Act have been only is on for the offense said, “The defendant trial objection, on argument be I think the the instructions and should prescribed in refused be stricken.” The court confined to that. Let the comment say that the court abused its discharge and we cannot argument remaining part cannot classified discretion. The of be , that abuse or which would entitle low order of denunciation 23, Barrington, Mo. new trial. State v. argument obviously reply to portion A S. W. 235. Londe, 185, Mo. high praise the witness of defendant’s [State argument prosecutor’s much of the (2d)W. 132 S. 501] appeared from his they on the facts fair inference and comment (Mo.), (2d) 889; 100 S. W. standpoint. State v. Wilkins Johnson, 785, (2d) 544; State 351 Mo. (Mo.), 100 S. W. Cohen 139. 174 S. permitting State to urged the court erred It asylum Joseph on at flight from the SL the defendant’s insane
prove August on that date and 11, It until July 1935. is contended that eharge pending character 1935,. there was criminal - her none of movements consequently against her and at time avoiding argument were arrest. This does present picture background full the evidence in its complaint admissible. first against It true filed her justice court had been dismissed and a complaint second justice August might filed in another court until It interpolated any complaint that she was not tided on the filed basis grand justice in a nor an indict court information but on a September 6, night shooting returned on ment one “you me. said, witness testified the defendant to hold don’t have away. going They anything I am not to run is all fixed. won’t do 19, 1934, adjudged by to me.” On November she was insane complaint signed by Probate Court Jackson on a her County appear She did not the proceedings though mother. at she inwas jail probate hearing. near the court and knew She or her lawyers represented by mother were Thompson. chosen she While asylum Joseph weekly by was in the at daughter, St. visited her lawyers mother, frequently and friends. *8 Many purpose persuading for the visits were her it was that things to her best interests to remain in the institution until “cooled things “quieted July 11, 1935, off’'’ until Jack or down.” On she given was a of absence for the her purpose visiting leave mother Joseph. in a hotel in was met Thompson daughter St. She and her Topeka. Topeka daughter driven to Prom mother and to went Pueblo, Trinidad, Fe, Houston, Antonio, Santa San Dallas finally operated New where she a shop flower the name under .Orleans Thompson. years City After several detectives from Kansas found her. Once came she back the once re officers, or twice she voluntarily. City turned Kansas Once she resisted removal from the State of Louisiana a in proceeding in the Federal courts there. She told Jack, said she while she was in St. Joseph, that she no had right get place. many" and was anxious to out of There are regard other circumstances her various movements and her incar Joseph ceration the institution at St. but these are illus sufficient to though charge that pending trate there was no on day flight of her did, though charge she flee fact, pending. that even no From though may day these circumstances she not have fled that to avoid she have thought arrest fled a trial which she avoid imminent though proceeding pending. State v. Duncan, Mo. 80 S. W. 147. Prom all evidence it a fair inference that feigned she had insanity permitted insanity proceeding or an instituted avoiding trial, filing for the a of a complaint an arrest. Stevens, Mo. 97. In event in the circumstances of this ease was not inadmis merely sible complaint proceeding there was no because or criminal pending against original day flight. her on of her Annotation, 25 L. R. A. appeal
The substantial merit this lies in question appellant unfairly whether the unjustly prejudiced prosecuting' attorney’s pistol exhibition and demonstration with a he cross-examined her. night Mary Thompson
The appellant shot was asked what she gun. done it had with the She she thrown said had The police shrubbery bushes. porch searched near the and found a .25 pistol. pistol placed caliber automatic was marked and police department’s property pistol disappeared room. That from property room it and no one to find it and was able produced was not at nor the trial disappearance was its accounted for. As we said the appellant testified that have a she did gun did Mary Thompson. shoot Both and her daughter always Thompson testified that Jack carried a There was no direct testimony shot his effect had wife that he desired her death. from the But defendant’s state- ‘‘ ’’ ment dirty a double Grosser and had shot (the appellant) though unlikely it a possible most inference from that statement that he shot circumstances his wife. had
At any rate, daughter, Dorothy Lou, on cross-examination the said carry gun her mother a did not and she never her with a saw gun. gun. Thompson carrying But she had often seen Jack small, black, thought. gun, flat As to whether ‘‘ trigger truth, trigger she said To tell I don’t know—had a some place.” long She was asked: “Was it a about (indicating). Q. carry gun? (indicat- And “Where did John A. Back there Q. Q. ing). large In hip pocket? bulge, A. his Yes. It made help couldn’t but see A. I it until it? didn’t see he took -Q. pocket? coat off. A. Yes. up When would stick over his Q. In ? pocket (indicating) Yes, with him A. it was there. *9 Q. sticking he you gun When would take off his could that coat, see pocket? Q. out his of A. out of his sticking Yes. You could see it Q. pocket? gun large Dorothy? Yes. a it, A. It wasn’t then, Q. carry small, gun A. It ordinary looked an to he like me. Did it in ? pocket a scabbard or in his think it was kind of A. I in some something. Q. a ease or That his case? pocket, was inside the A. Yes. Of course that was in the winter time. He had an overcoat too. Q. gun see wouldn’t the until he would take his off? A. You coat Q. you sticking Yes. Then would it out of his coat? see Yes.” A. On direct that Jack examination the stated owned a “all time.” carried revolver the On cross-examination and attorney gun you say Thompson carried, the State’s said: “This John say, just ordinary type gun what a A. I couldn’t an of it? gun guess. you of Q. sticking I Did see it out his A. pocket? ever Q. much, Not it stick much. How much of it did out? didn’t out stick gun the that much of Q. you Would Very A. little ... ? I know.” A. don’t (demonstrating) stuck out point in the cross-examination precisely appear at what does It demonstrating with began attorney pistol and produced the State’s Q. high (indicating)? it that But, up “Did stick it. he continued: ? More Q. (indicating) A. How that quite A. Not that much. about Q. (indicat- More like that Q. A. Yes. like More like that? that. ing) it.” Yes, sir, ? A. that is objected to point defense counsel cross-examination At the as jury be identified display unless it of firearms before the “the by the used defendant. by the to have been claimed State the revolver prejudice inflammatory, prejudicial, highly and is calculated ’’ against the the defendant. gun in said that the Then, jury’s presence of the the court out itself agreed gun the question .25 caliber It was the ease. nor with had no connection whatever with the defendant gun the “Let the record which court then said: show caliber J. Caeser auto- offered to is an .25 ha_s ordinary State use it at this pistol, exhibiting the State is matic the court understands and Hill, only for the pocket attorney, time in State’s Mr. asking will purpose of defendant whether the amount that it same attorney pocket is about hip out of of State’s extend Thompson’s pocket.” Appellant’s extended from his counsel Mr. gun among other objection and then made further use effect any foundation, subtle things said a fire arm for the “without upon the'jury highly . inflam- will have . . such prejudice the matory prejudicial character as to the existence of eyes in the and make them conscious of gun before them.” exception said objection the court Then, over defense counsel’s objection, per- jury.- passing “In will be upon to the Hill, pistol Mr. State’s mitted to exhibit the automatic which asking attorney, only the witness pocket has in pistol extended determine what extent the John pocket from his when it. no con- occasions she did see There is by anyone pocket tention Hill in his pistol which Mr. bolds anything question, the world to do with the occurrence pistol personal property Mr. Jack is conceded Gibbs, investigator Prosecuting Attorney’s office, and is an entirely completely unconnected with this ease in manner ’ ’ whatsoever. proceeded then with the cross-examination-. attorney The State’s “Q. you say Wynne, Thomp- Mrs. would saw John *10 large (Indicating.) that? pocket Well, son’s as A. tell was Q. truth, sticking I see paid the never much attention. You did Yes, Q. you anything Do pocket? sir, out of his A. I did. see
287 sticking of my gun ? pocket (indicating) say out A. I the didn’t . Q. larger that size. than you . . Do know whether it was ¶ gun you I (indicating) really have know. shown A. I don’t I pay any Q. did not gun. you attention to his . . . Would gun larger the this, just I gun (indicat- than have shown ing) ? A. I Mr. I no it.” say, couldn’t didn’t attention to pay Hill.
Weapons objects or other furnish be sub- which evidence mitted to the jury. of the “real” or “demonstrative” senses Such (“autoptic Wigmore) physical evidence il- proference,” a direct is taking by lustration of a description of an place fact oral Thayer, Wharton, witness. Evidence, p. 713; Cases on 2 Criminal Evidence, 755, p. Sec. 1274. But “real” or “demonstrative” such probative relevancy, materiality, evidence must meet the tests of 2 justice. value and reasons of policy in the administration of Evidence, underlying Wharton, Criminal its 756. The rule see. philosophy by might is Wigmore: “Accordingly, summarized asserted, priori,’ ‘a quality that where the existence or the external issue, object or condition of a or material is in issue relevant thing tribunal, inspection itself, produced before the provided specific or always proper, policy principle reason of ought decidedly contrary. be, ap- and such bears Such 4 parently is, Wigmore, accepted Courts.” principle 1151, pp. sec. Evidence, 240-241. objects weapons with the defendant or
Thus or connected crime, sufficiently possess relevant and when become identified^ S., probative great value. C. J. see. 712. But note with what pains the court demonstrates that the machine the riñe and gun, pistol City were used Kansas Union Massacre identifiable defendant, Richetti, crime. State his associates and the general weapons 330. 1015, 119 S. As a rule and ob- Mo. jects or are admis- not connected with the defendant the crime they probative S., some C. sec. possess sible-unless value. J.
p. any one could shot the Thus when of three deceased respective .44, pistols properly and .38 caliber were their .45 admis- deceased killed against the defendant because the sible in gun. the .38 caliber Harris bullets and caliber .38 129 Fla. 177 So. State, caliber jury, gun .25 case, court told
In this as the the crime. question had no whatever with connection far pistol how its use was demonstrate The stated Thompson’s And a pocket. of John demonstration stuck out might probative force for that with a have some illustration entirely materiality aside relevancy from purpose. But case, far pistol of this of how circumstances under the fact, similarity proof not sufficient pocket, of his stuck out Wigmore, Evidence, to warrant demonstration. circumstances *11 one tes- No Evidence, sec. 757. 1154a; Wharton, 2- Criminal sec. automatic caliber Caesar Thompson carried a .25 J. that Jack tified of size not know the did The insisted defendant evidence little there was but As a matter fact he carried. of the gun was habitually There gun he carried. size of or type general jury’s pocket than hip of his other of size evidence his of gun out far the stuck knowledge pockets. ITow personal of witnesses relevant, was a fact that if and pocket, material clearly as gun a about as illustrate without could describe and definite more especially with no gun a could demonstrated Evidence, Wharton, present. Criminal similarity of circumstances Thompson’s gun out of 755, p. how much a stuck At most sec. Hotel Pickwick Dorothy or the saw it when defendant pocket relevancy, ma- Tested collateral, a if not matter. immaterial, was pistol properly teriality and of circumstances similarity its demon- question whether and the decisive admissible evidence of deprived prejudiced the defendant and stration exhibition contends. error harmless as the State fair trial or whether the a in its single comparable instance We have able to find but a been In presents. problem present to the case and circumstances a after threats Rusnak, 108 N. J. 145 Atl. L. an Within grudge standing policeman. of the defendant shot a long and found shooting searched room police hour and half of the his revolver, homicide, hidden in a shoe. other than the one in the used urged It error that it was to receive that evidence. court was of'the that the could infer the defendant view victim, although carried “in his he quest this revolver his found) police for that actually weapon” (which used another However, reason the revolver was in evidence. second admissible though in- opinion pistol court was the further that even harmless; techni- admissible “but if its admission was the error cally erroneous, prejudicial not have been it was and could merits, maintaining on the other his defense since defendant beyond evidence reasonable doubt demonstrated actually (Italics shot supplied.) and hilled the decedent.” little, any, be that as we view it there is but if doubt that doing Wynne Mary shot and killed in so certainly guilty degree she was murder second yet has found and Aside from we cannot the error was harmless. probative relevancy, similarity reasons of circum- value stances which exclude demonstrative the reason would policy principle” directly “of contrary” which “bears to the prejudice objection unfair to the accused. The to the introduction weapons evidence, or other demonstrative not con- especially when prej- crime, ground nected with the defendant on the of unfair psychological udice is principles. based on sound and philosophical They are “First, is a tendency natural to infer from mere production object, material evidence, and without further deadly truth of all predicated sight that is of it. Secondly, the weapons injuries or of asso- cruel tends overwhelm and to reason atrocity ciate the accused with without sufficient evidence.” Wigmore, Evidence, 1157, p. sec. *12 presence obviating objections present of factors are not these objection least instant case. “The be at phase may its first authenticated,
partly object by requiring properly overcome to be requirement en- production; constantly before after this is by objection forced phase Courts. The in its second cannot entirely overcome, by court; even express instructions from the but demonstrating is to be necessity doubted whether the of thus way possibility method and results of to this give the crime should prejudice.” Evidence, Wigmore, p. undue 1157, see. Error harm- in the admission “should be declared of evidence 485, less question.” Richards, unless is so without 334 Mo. 494, 67 (2d) 58, S. W. does demonstrate that 61. The record injured by by was not the error as showing disregarded evidence. could not have been influenced 132; S., Nasello, 325 Mo. Secs. 30 S. W. C. J. pp. object weapon 1915(7), 954-958, 980-981. The awas lethal —coincidentally a .25 caliber automatic The inherent nature weapon such, case, this under the circumstances of tendency the jury undoubtedly would to infer ‘from a demon- predicated stration with it “the truth of that is of it” when all nothing fact or the crime. it had whatever to with the defendant do prejudicial Because error the entitled accordingly new trial and the West- cause is remanded. reversed and hues, 0., dissents; Bohling, C., concurs.
PER foregoing opinion adopted Barrett, C., CURIAM:—The opinion judges All the court. concur. Kathryn Ryan Individually, Ryan, Trustee, v. Charles M. Augusta Ryan Ryan George Nancy Goebel, Ryan, Ryan, Alice
Cable and Susan Appellants. 38764. 182 S. Ryan, No. (2d) 301. One, September 5,
Division