State v. Dipley

KENNISH, J. Upon an information charging murder in the first degree for the killing of Stanley Ketchel, appellants were tried and convicted of that offense at the. January term, 1911, of the circuit court of Webster county, and were sentenced to imprisonment in the penitentiary for life. They appealed to this court. The crime was charged to have been committed on the 15th day of October, 1910, at said county, by the — 468 — shooting of Ketchel with a rifle in the hands of the appellant Walter Dipley. Appellant Goldie Smith was charged as an accessory before the fact. No point is made on this appeal as to the sufficiency of the information. ' The evidence tended to prove the following facts: B. P. Dickerson, a resident of the city of Springfield, Missouri, owned a ranch in Webster county, upon which he employed four or five men, including a foreman. Stanley Ketchel was a noted young pugilist from Michigan. He had been visiting his friend Dickerson in Springfield for about two months preceding the homicide. It was understood that Bailey, the foreman of the ranch, was to quit the services of Dickerson and that Ketchel was to succeed him as foreman. Appellants were then respectively twenty-four and twenty-two years of age, Dipley being the older. They had been brought up in Christian county, which adjoins Webster county. They had known each other as school children, but both had left their home county a number of years before. Dipley had lived in Jasper county and had entered the naval service of the United States Government, while appellant Goldie Smith had also resided at a number of different places. She had been twice married and was not divorced from her second husband. She had been leading a wayward life, and Dipley was a deserter from the navy. Without pre-arrangement, on the 11th day of September, 1910, both had returned to Christian county to/visit relatives and were thrown together in driving from the railway station to the neighborhood where their relatives resided. After recognition and a renewal of their acquaintance, it was agreed on the drive that they should represent themselves as husband and wife, and afterwards it was agreed that they should live in that relation and form it in fact as soon as Mrs. Smith was free to marry. After a short stay with their relatives they went to Springfield, repre — 469 — senting themselves as husband and wife, under the assumed name of ITnrtz. They applied at an employment agency for a situation and were referred to Dickerson, who was looking for a man and wife to keep house and work on his ranch. They were employed and left Springfield in company with Dickerson and Ketchel for the ranch, October 12, 1910, arriving there the same day about 12:30 p. m. Within a radius of two hundred yards there were two small dwelling houses on the ranch, and one larger house where the foreman lived and in which Dickerson and Ketchel had a room reserved for their own use; also a large barn. Bailey had not removed all of his furniture from the main house where appellants were to reside and so they were placed temporarily in one of the smaller houses about a hundred and fifty yards distant. Dipley did not commence work for his employer until the next day. He worked Thursday and Friday. On Friday he was in the field some distance from the house, putting in wheat. Friday afternoon Ketchel and appellant Mrs. Smith moved appellants’ effects from the smaller house to the larger one. That evening after supper Dipley went to one of the other houses in which Brazeal’s family was living and where Bailey was stopping for the night preparatory to leaving the ranch the next day. He called Bailey out and told him he expected to have trouble with Ketchel and was going to quit the ranch and return to Springfield. He inquired if he and his wife could ride in the hack with Bailey to the railroad station the next .day, and was informed that he could. Appellants testified that soon after supper Friday evening, Mrs. Smith warned Dipley to be on his guard for Ketchel. That the latter had made bad threats against both of them that afternoon. That she then told Dipley she did not want to remain there and that they decided to leave. They further testified that about midnight, at the solicitation of Dip — 470 — ley as to what had happened, Mrs. Smith told him that while she and Ketchel were moving the goods that afternoon Ketchel assaulted her, throwing her upon the bed and partly accomplishing his purpose, and that he thereafter threatened that he would kill her and her husband if she should tell what he had done. Mrs. Smith testified to the truth of the facts so said to have been communicated to appellant Dipley. Ketchel was fatally shot by Dipley the next morning at the breakfast table, between 6 -.30 and 7 o ’clock. He was shot in the back with a rifle, below and near the shoulder-blade and about an inch to the right of the spinal column. The bullet ranged slightly upward and to the right, causing the pleural cavity to fill with blood and making it difficult for him to breathe. As soon as Ketchel was shot he ran through an adjoining room to his bedroom upon the west side of the house and lay'down upon the bed. Some of the employees were soon there, ministering to him as best they could. In half an hour a physician arrived and later two physicians from Springfield, but they were unable to give him relief, and after having been removed to the hospital in Springfield he died there that day about 6:30 p. m. After he was shot deceased made a statement which was admitted in evidence as a dying declaration. In this statement he said a number of times, “I guess they have got me,” and also said, “Yes, he told me to put up my hands and I didn’t do it and he shot me.” There was much testimony, direct and circumstantial, tending to prove that Dipley borrowed the rifle from Ketchel that morning, on the pretext that he wanted to shoot a groundhog or some other object, when his real purpose was in fact to kill Ketchel, and that after the shooting he gave as the reason for his act that Ketchel had assaulted his wife the day before. There was also evidence tending to prove that Dipley — 471 — followed Ketchel into his bedroom after he was shot and struck him on the forehead with the rifle and took from him a revolver which Ketchel was carrying on his person at the time he was shot. Appellants ’ version of the shooting, briefly, in addition to the occurrences of the day before as heretofore stated, was to the effect that an altercation arose between Dipley and Ketchel when the latter sat down to his breakfast, because Dipley had not gone to work; that Dipley referred to Ketchel’s misconduct of the day before; said he had quit; that Ketchel then threatened to shoot Dipley, and that the latter sprang and got the rifle and shot as Ketchel was trying to draw his revolver. After the shooting Dipley left appellant Goldie Smith at Brazeal’s and fled from the ranch, taking Ketchel’s revolver with him. He was arrested at a farmer’s house the next morning where, giving an assumed name, he had stopped over night: The foregoing is but a summary of the evidence, a detailed statement of which is not deemed essential and would unduly extend this opinion. Additional facts will be referred to when necessary in the discussion of the errors assigned. I. At the close of all the testimony appellant Mrs. Smith requested an instruction in the nature of a demurrer to the evidence, which the court refused. In the motion for a new trial, as well as in one of the assignments of error in this court, it is urged that the court erred in refusing said instruction, and that the evidence is insufficient to support the verdict. That contention stands at the threshold of a consideration of the alleged errors, for if it should be sustained it removes from the case many of the grounds relied upon as reversible error. The theory of the State was that the evidence of Mrs. Smith’s guilt was entirely circumstantial, and the — 472 — jury was so instructed. In adopting that theory, little reliance was placed upon the words of the dying declaration, “I guess they have got me,” for that is not circumstantial but direct testimony, and the rule is that where there is any direct evidence an instruction on circumstantial evidence should not be given. [State v. Crone, 209 Mo. 316.] But waiving the technical question suggested and viewing the testimony broadly, let us examine the record as to the facts and their probative weight tending to prove the criminal participation of this woman in the tragedy which resulted in Ketchel’s death. And in considering the question we must do so mindful of the rule of law as recognized by the court in this case that circumstantial evidence must be consistent with the guilt of the accused and inconsistent with'any reasonable theory of innocence. At the outset we are confronted with the remarkable fact that although there were three eye witnesses to the homicide, each of whom was seen immediately thereafter by others than the parties to the tragedy, and talked about the facts, yet, aside from Ketchel’s general words, “I guess they have got me,” not one word was said by either tending to prove the woman’s guilt. The most searching scrutiny of her conduct immediately after the homicide, is equally barren of any act indicating a consciousness of guilt. We are not disposed to attach much weight to the words of the victim, “I guess they have got me,” so far as Mrs. Smith is concerned. It is evident that she ’ told Dipley the evening before of some improper conduct of Ketchel toward her. This fact is proven by Dipley’s-visit to Bailey after supper, and by what he then said. The further fact that Ketchel was carrying a revolver in a scabbard, before breakfast and at the breakfast table, at the time of the homicide, has little less significance as to his knowledge. Ketchel knew Dipley and the woman as husband and wife. If, when — 473 — lie made said statement, he was aware, as we think he was, that the woman had communicated to her supposed husband the information which caused the latter to shoot him, how natural that he should have used the words under review, without intending to implicate the woman as a party to the crime. Besides, when Ketchel stated the facts as to the shooting, there is no mention of any act or word connecting the woman with what had been done.' The suggestion that she so placed Ketchel at the table as to enable Dipley to kill him without peril to himself, is the merest conjecture and wholly insufficient to support a conviction of the highest crime known to the law. Our conclusion is that as to the áppellant Mrs. Smith the evidence is in- • sufficient to support the verdict, and that the court should have given the instruction directing a verdict of acquittal. II. The defendants filed a motion to disqualify 'the sheriff on the ground that he was prejudiced against them. After hearing testimony thereon the motion wa,s overruled, and appellants now assign such ruling as error. It was shown by the testimony that Dickerson was Ketchel’s friend; that he was interested in the prosecution of the defendants; that a few days before the trial he wrote to the sheriff, inviting him and his friends to come to Springfield and attend a moving-picture show of the Johnson-Ketehel prize fight and that the sheriff and his friends attended the show in' response to the invitation. But the sheriff testified that they paid their own expenses, and there was no testimony tending to show any attempt on the part of Dickerson to influence the sheriff in his official conduct. The voir dire examination of the jury is contained in the record and there is an absence of any testimony tending to show prejudice of the sheriff in summoning the jury, or in the discharge of his official — 474 — duties. While it must be said that it was a most indiscreet act in the sheriff to accept such an invitation under the circumstances disclosed, yet we cannot overlook the fact that the incumbent of that office may be and frequently is a man who has not the highest sense of propriety in such matters. And it does not follow that because of such conduct, public and unconcealed as it was, there was official wrongdoing, or that an inference should be drawn that the sheriff was prejudiced against the defendants and unfit to discharge the duties of his office in their case. The rule is well settled in this State that an appellate court will not reverse the ruling of the trial court in such a matter, unless the action reviewed amounted to an abuse of discretion, and clearly such a showing was not made in this case. [State v. Leabo, 89 Mo. l. c. 252; State v. Mathews, 98 Mo. l. c. 121; State v. Hultz, 106 Mo. l. c. 51; State v. Lanham, 144 Mo. l. c. 38; State v. Hunter, 181 Mo. l. c. 333.] III. Complaint is made that the court refused defendants ’ request to disqualify jurors Pleggan and Brown upon their voir dire examination. No reason was given for the challenge as to said jurors except the general request that they “be excused and discharged from the panel.” Such a challenge does not direct the court’s attention to the specific ground of disqualification and, under the repeated rulings of this court, is no challenge at all. [State v. Fields, 234 Mo. l. c. 622; State v. Wooley, 215 Mo. 620; State v. Bobbitt, 215 Mo. 10.] IV. It is claimed that the court erred in permitting the examination of certain talesmen before two others whose names appeared earlier on the list. Also that the court erred in not allowing each of the defendants twenty peremptory challenges. As to the former complaint it is sufficient to say that no objection was made to the order of examination until after the — 475 — juror had been examined, and that no possible prejudice could have resulted from the action of the court complained of; and as to the latter, that the statute, section 5224, Revised Statutes 1909, expressly denies the right asserted. Y. A number of errors are assigned to the rulings of the court in the exclusion and admission of testimony over the defendants’ objections. We have carefully examined such rulings and have concluded that they are free from prejudicial error. Space forbids that we should take up each of these complaints, and we shall therefore notice only those of most merit. A witness for the State had been cross-examined by defendants’ counsel upon the subject of the deceased carrying a revolver upon his person, and an unfavorable inference was sought to be created by such fact. The prosecuting attorney, on redirect examination, asked the witness if he knew why the deceased carried a gun. No objection was made to this question, but when the witness answered that the deceased said he carried it to practice target shooting and that he was ambitious to become a good shot, the defendants then objected to the testimony and asked that it be stricken out for the reason that it was incompetent, irrelevant and immaterial. The court refused to strike out the answer, and appellants assign’ error in' such ruling. It is competent for the accused, in a homicide case, to prove why he was carrying a weapon at the time of the encounter, in order to negative a criminal purpose. [State v. Kretschmar, 232 Mo. 29.] But it would not be competent to prove such fact by statements made by the defendant when he was not under oath, and we have been unable to find any exception to the rule against hearsay which would make Ketchel’s statements competent as to why he carried a — 476 — weapon. However, the ruling of the court cannot be held prejudicial error, for two reasons: First: The defendants did not object to the evidence for the reason that it was hearsay, and a general objection was not sufficient to direct the attention of the court to such ground of incompetency. [State v. Pyles, 206 Mo. l. c. 632.] Second: The fact had been brought out by the defendants, on the cross-examination of the State’s witnesses, that the deceased had been carrying the same revolver around there and shooting with it before the difficulty with the defendants. Therefore the answer asked to be stricken out was merely a restatement of the same matter brought out by defendants, and we are unable to see how they could have been prejudiced by such testimony. The defendants offered in evidence a certified copy of a judgment of conviction rendered by a police court in the State of Montana, against Ketchel, for the offense of cruelty to animals, which, upon objection by the State, the court excluded. The State offered evidence tending to prove Ketchel’s good character for morality at Springfield, where he had resided for about two months, which evidence the court admitted over defendants’ objection, and appellants now complain of both of said rulings. When a dying declaration is admitted in evidence, the credibility of the declarant may be attacked and sustained as in the ease of a living -witness. Under this rule it was competent for the defendants to attack Ketchel’s reputation and for the State in turn to sustain it. A witness may be impeached by proving that he was convicted of a criminal offense. The purported transcript of the judgment offered in evidence was certified under the hand and seal of the police judge. There was no showing that the police judge was ex-officio clerk of his court, nor was there other authentication of the judgment. The transcript of the — 477 — judgment was not authenticated in accordance with the requirements of the State or Federal statutes, and the court did not err in excluding it. [Section 6331, Revised Statutes 1909; Section 905, vol. 3, p. 3711; Revised Statutes of Missouri 1909 (Sec. 905, U. S. Compiled Statutes 1901); Stevens v. Oliver, 200 Mo. 492; State v. Foreman, 121 Mo. App. 502; Crone v. Dawson, 19 Mo. App. 214.] The defendants’ testimony tending to prove-that Ketchel was a prize fighter and the assault upon Goldie Smith, was such an attach upon his character as authorized the State to introduce testimony of his good moral character in support of his credibility. [State v. Lovitt, 243 Mo. 510; State v. Speritus, 191 Mo. 24; State v. Jones, 191 Mo. 653; Underhill on Criminal Evidence (2 Ed.), sec. 418.] VI. It is contended that the court erred in admitting the alleged dying declaration in evidence, for the reason that it was not shown by the testimony that the declaration was made under the belief of impending death. It was in evidence that the deceased was shot through the lung and that the blood commenced flowing into the pleural cavity immediately, thereby making his breathing difficult. That when wounded, de- • ceased did not go outside of the house to give the alarm, but ran to his bed and did not leave it until removed by others. That his condition continually grew worse and he was suffering great pain and was groaning. That he said he could tell from his breathing that he was shot through the lung, and repeatedly stated, “I guess they have got me.” These facts and others detailed by the witnesses proved that the declarant believed he was fatally wounded and that he was conscious of the near approach of death. All the requirements of the law as to the admissibility of a dying declaration were met by the facts and circum — 478 — stances in evidence, and we hold the court did not err in admitting it. [State v. Lovell, 235 Mo. 343; State v. Gow, 235 Mo. 307; State v. Kelleher, 201 Mo. 614.] VII. Defendants requested the court to instruct the jury upon certain questions of law, including the law upon dying declarations, and they now complain that the court failed to instruct upon the subject of such testimony. This court has held it error to instruct that a dying declaration is entitled to the same credibility as if the declarant had been examined under oath as a witness and testified in court to the same facts. [State v. McCanon, 51 Mo. 160; State v. Vansant, 80 Mo. 67.] On the other hand, it was held in the case of State v. Reed, 137 Mo. 125, that the court did not err in refusing an instruction asked by the defendant telling the jury that such declarations were not entitled to the same weight as the testimony of the declarant, were he a witness testifying in court. It was further held in the B.eed case that such an instruction would have been objectionable as a comment upon the evidence. Under these authorities the court properly refused to give the instruction requested. VIII. Many errors are assigned to the giving of' instructions for the State. The main complaints are lodged against instructions numbered 2, 6, 7, 14 and 15. Number 2 is attacked upon the ground that it does not define the adverbial terms “feloniously,” “wilfully,” “deliberately,” etc., and because it does not submit to the jury the question whether or not the defendant Dipley “feloniously, wilfully,” etc., shot the deceased. The words referred to were properly defined in instruction numbered 5, and it was not necessary to — 479 — define them in each instruction in which they were used. [State v. Renfrow, 111 Mo. 589.] The second complaint as to said instruction numbered 2 is not borne out by the facts in the record. The instruction, in form, is in accord with approved precedents of this court. Instructions numbered 6 and 7 are criticized because of the use therein of the words “without sufficient reason, cause, justification or excuse,” and “lawful provocation,” without defining them. In instruction numbered 7 the court correctly told the jury that the assault upon Goldie Smith the day before the homicide, and the defendant Dipley’s knowledge of that fact, would not furnish a sufficient cause or provocation to reduce the killing to murder in the second degree. And as there was no evidence of such just cause of provocation as would reduce the grade of the crime, a failure to define said terms was not error. [State v. Ellis, 74 Mo. 207; State v. Grant, 152 Mo. 57.] Instruction numbered 6 is substantially a copy of an instruction approved by this court in the case of State v. Cushenberry, 157 Mo. 168, and number 7 is in accord with the law as declared in the cases of State v. Ellis and State v. Grant, supra. Instruction numbered 14 contains the principle of the law of homicide that if the defendant Dipley voluntarily sought, provoked or invited the difficulty with the felonious intention of killing Ketchel or of doing him some great bodily harm, then he could not avail himself of the law of self-defense. Complaint is made both as to the form of this instruction and that there was no evidence on which to base it. The instruction is unobjectionable in form. [State v. Bailey, 190 Mo. 257.] Without repeating the testimony bearing upon this subject, already set forth in the statement of facts herein, it is sufficient to say that in our opinion the court was fully warranted in — 480 — giving this instruction. [State v. Kretschmar, 232 Mo. 29.] IX. Thirty-six instructions were asked by the defendants and refused by the court. Proper instructions were given to the jury upon every question of law necessary for their information, and it is well settled that when correct instructions are given it is not error to refuse others, though they correctly declare the law. [State v. Driscoll, 235 Mo. 377; State v. Gow, 235 Mo. 307; State v. Sharp, 233 Mo. 269.] X. It is finally urged as error that counsel for the State made improper and prejudicial remarks in the argument of the case to the jury. Mr. ITaynes, counsel for the State, in his argument, addressing a juror by name, said: “Mr. Barnard, it is not the first time in your knowledge that an unsuspecting victim was placed at a door or window where he could be shot; you know of a case where a man was placed at a window and foully assassinated.” Upon objection by counsel for defendants the court said the remarks were improper and admonished counsel to keep within the record. The defendants objected and saved their exceptions. While the remarks of Mr. Haynes were highly improper, yet, as the court promptly so characterized them in the hearing of the jury and admonished counsel to keep within the record, we are of opinion that, considered in connection with the corrective action of the court, they were not prejudicial to the substantial rights of the defendants and a reversal of the judgment would not be warranted on that ground. The other remark complained of, to the effect that the eyes of the people of Webster county and of the United States were upon the jury to see if they were going to do their duty and convict the defendants, was a mere rhetorical appeal to the jury such as is com — 481 — monly made in the trial of criminal cases. The court admonished counsel that the remarks were improper and that he must keep within the record. Without passing upon the question as to whether such admonition was deserved, we have no hesitancy in holding that the remark did not constitute reversible error. After a painstaking examination of the long record in this case and the numerous errors assigned, we have reached the conclusion that as to appellant Walter Dipley the record is free from prejudicial error and the judgment is accordingly affirmed. As to appellant Goldie Smith, for the reasons heretofore stated, the judgment is reversed and the appellant Goldie Smith is discharged. Ferriss, P. Jand Brown, J., concur.