Opinion
No. 43000.
February 9, 1953.
APPEAL FROM THE CIRCUIT COURT OF DALLAS COUNTY, JAMES P. HAWKINS, J.
J. E. Taylor, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.
An information was filed in the Circuit Court of Webster County charging defendant with murder in the first degree, to wit, with the murder of his wife, Altie Bledsoe. The cause went on change of venue to the Circuit Court of Dallas County, where defendant was tried and convicted of murder in the second degree and his punishment fixed at twelve years' imprisonment in the State Penitentiary. On a prior appeal, the submission here was set aside as sentence had not been imposed and the record failed to show a final appealable judgment. State v. Bledsoe, Mo.Sup., 249 S.W.2d 457. Thereafter, sentence was imposed and defendant has appealed from the final judgment in the cause.
On June 28, 1950, the defendant was residing in Niangua, Webster County, with his wife and five children, to wit, Nola, whose age is not disclosed, Lloyd 17, Fay 15, Cleta 11, and Leaman 8. Defendant and his wife had been absent from their home during the morning hours of June 28th, but returned about noon accompanied by their daughter Nola. Nola left about 1 p. m. and there was some argument between defendant and his wife about her. Defendant did not approve of Nola's leaving. After Nola left, Mrs. Bledsoe began making preparations to go to Dr. Sherman Schlicht's office in Niangua to keep an appointment for a check-up. Lloyd testified: "* * * Dad was going to go with her; well, I think they got in trouble like that once before, and I thought they would get into it again, and I insisted that I go in place of Father, and well, he wanted to go, and I just kept on insisting that I go, * * * Well, me and Dad had a few words, enough that I know I got pretty mad * * *."
About 2 p. m., Lloyd and his mother left the house and started to walk to Dr. Schlicht's office a few blocks away. They had gone out through the yard and into the road, when defendant, who had been cutting grass in the yard, went into the house and got a 22-caliber rifle and came out and started after them. Lloyd then turned back toward the house and met his father. Lloyd testified further: "Well, I was going to take the gun from him, and he didn't want me to, and finally he said 'Leave me alone', he said, 'I want to take the gun over to Carliss', that is my older brother, he said 'Somebody is going to get hurt'; and I was going to get the gun anyway, * * * I just kept on there when he told me to leave him alone, he kept backing up and I was trying to get the gun, and finally he said 'Someone is going to get hurt if you don't leave me alone', so that is when I went to the neighbor's."
Lloyd ran to the Petit home next door and obtained a 16-gauge shotgun. He said he got the gun to frighten his father. When Lloyd left and started for the neighbor's home, Mrs. Bledsoe ran back toward her home and defendant followed at a fast pace and both went into the house. "She ran in and he ran in right behind her." Defendant was carrying the rifle with him and "it was pointing right straight in at the door", as he went into the house.
When Lloyd entered the Petit home to obtain the shotgun, he and Mrs. Petit heard a rifle shot over at the Bledsoe home. The houses were only 22 feet apart. After Lloyd obtained the shotgun he went back to the front door of the Bledsoe home and looked through the front door into the house and saw his father and Cleta scuffling. Both of them had hold of the rifle. Cleta saw Lloyd and said, "There is Lloyd, with a gun." Defendant looked up and saw him and, as Lloyd went into the house at one of the two front doors, his father ran out at the other door and ran across the road and down to the railroad tracks taking the rifle with him. Lloyd followed him to the embankment on the railroad right-of-way and then returned home to learn for the first time that his mother had been injured. She said "I'm shot, I need a doctor."
Dr. Schlicht was called and reached the Bledsoe home 20 or 25 minutes after defendant's departure. He found Mrs. Bledsoe in bed, looking quite pale and showing evidence of shock. She was conscious, but apparently in severe pain and agony. Her pulse was rapid and of less than normal volume. On examination, Dr. Schlicht found a small circular perforated wound at the upper edge of her abdomen and just beneath the lower tip of the breast bone. The wound appeared to have been made by a small object about the size of a 22-caliber bullet. She advised the doctor that she had been shot through the kidney.
After Dr. Schlicht arrived, Mrs. Bledsoe told some of the parties, who had accompanied the doctor to the Bledsoe home, that "he shot me", but she did not identify her assailant. She was promptly taken to the doctor's office, but died in the ambulance in Niangua, Webster County, some 30 minutes after the doctor first saw her. Death was caused by internal bleeding resulting from the gunshot wound in the abdomen. Examination of the body by the undertaker disclosed two wounds, one as described and located by Dr. Schlicht and the other in her back, approximately 2 or 3 inches to the right of the spine and just a little lower than the wound on the front of the abdomen.
On the same date, but after Mrs. Bledsoe's death, a highway patrol trooper searched the Bledsoe home and found a shell case and a slug in the corner of the northwest room (bedroom) by the doors that open from the living room. There was also a place in the end of the piano where it appeared the slug had struck the piano some 3 feet 6 inches from the floor. A ballistics expert testified that the slug had been fired from a rifle of the same size and with the same number of lands and grooves as the 22-caliber rifle taken from defendant on his arrest. The cartridge case, definitely, had been fired from the rifle in question.
Defendant was apprehended at about 4:30 a. m. the following day at a residence some two or three miles southwest of Niangua. He still had the 22-caliber rifle in his possession and he told a state highway patrol trooper that "he and Nola, the older girl, was wrestling over the gun when it went off, and that he didn't know it was loaded." Shortly after his arrest, defendant told the sheriff that "he knew she (his wife) was shot, but he didn't know she was dead; that him and the girl, Nola * * * and Lloyd, was scuffling over the gun."
In his own behalf defendant testified that he did not shoot his wife; that he "didn't know that she was even shot." When asked if he heard a shot in his house, he said: "I heard something, but I didn't know for sure at the time. Since then, I am pretty sure that is what it was. * * * Well, me and the little girl had hold of the gun at the time I heard the noise." Defendant also offered his daughter Cleta as a witness in his behalf. She testified that Nola "just stayed a little while" after her return to the house; that her father "got on to Nola, and she left"; and that her mother was taking up for Nola and wanted Nola to stay. When Mrs. Bledsoe got ready to go to the doctor, she said that Lloyd had better go with her. After they had started away and after Lloyd tried to take the rifle from her father, Lloyd started toward Petit's and her mother started toward the house. At that time her father started following her mother and Cleta (witness) ran to her father and tried to stop him from going after her mother. She thought her mother would go around the house and get away. Her father went into the house immediately behind her mother. Her mother went in the bedroom, but her father stopped in the living room. She said her father made no threats toward her mother and did not raise the gun or point the gun at her mother; that he had it down by his side; that he was having trouble with the gun (it was a bolt action rifle) and she (witness) took hold of the barrel of the gun while her father held it in his hands. They wrestled over it, but the gun was not fired. It could not have been fired before she took hold of it. Her mother was then in the bedroom. The witness said that at no time did she hear any shot; that her father never had the gun up like he was going to shoot anybody, but that she didn't know which way it was pointed while they were wrestling with it. She said she grabbed the gun because she thought Lloyd and her father "would get into it, shooting guns." She denied that she told Mrs. King, when she went for the doctor, that her daddy had shot her mother. In rebuttal, Mrs. King, who was working for Dr. Schlicht, testified that, when Cleta came for the doctor, she said "My daddy shot my mother."
No brief has been filed on behalf of defendant and we shall examine the assignments of error set forth in his motion for a new trial in order to determine the disposition of the appeal. Error is assigned on the giving of Instructions 1, 2, 3, 4, 6, 7, and 8, "as said instructions did not properly declare the law of the case." Such a general assignment presents nothing for review on appeal. No effort was made to point out in what specific respects the instructions or any of them were erroneous, or in what respects they failed to properly declare the law of the case. Section 547.030 RSMo 1949, V.A.M.S., requires that the specific grounds or causes for a new trial be set forth in detail and with particularity. The assignment must be overruled. State v. Copeland, 335 Mo. 140, 71 S.W.2d 746, 750; State v. Spencer, 355 Mo. 65, 195 S.W.2d 99, 105; State v. Kornegger, Mo.Sup., 255 S.W.2d 765, not yet reported in the State Reports.
Error is assigned on the giving of Instruction 5 "as said instruction did not properly state the law of the case and there being no evidence in the case justifying the giving of such instruction * * * such issue should not have been submitted to the jury." Instruction 5 dealt with the matter of "voluntary drunkenness in any degree." See State v. Deviney, Mo.Sup., 278 S.W. 726, 729; State v. Beasley, 353 Mo. 392, 182 S.W.2d 541, 543. While the assignment states that the instruction did not properly state the law of the case, there is no sufficient assignment to present anything for review in that respect.
There was evidence in the record to fully support the giving of Instruction 5. Lloyd Bledsoe testified for the state, as follows: "Q. Had your Dad been drinking when he came home that day around noon? A. He had been drinking, I couldn't tell how much, but he had had some.
"Q. Sir? A. He had had some, but I couldn't tell how much.
"Q. Did he bring anything to drink home with him? A. I don't remember whether it was with them or whether they got it later, I know there was some there.
"Q. What was it that was there? A. Some beer."
Cleta Bledsoe, a witness for defendant, testified she became very excited when her father went in the house and came out with a gun in his hands. Lloyd and her mother then were out in the road. She said: "I thought that maybe there was something going to happen." As to the reasons for her being frightened or excited, she said: "Well, I was that way when they came back, it always frightens me when they — when they get to drinking or something." The above testimony considered in connection with the other facts and circumstances shown by the record, as previously outlined, was amply sufficient to sustain the giving of the instruction. The assignment is overruled.
Error is assigned on the giving of Instruction 9 authorizing the jury to find defendant guilty of manslaughter in the event the jury found the defendant not guilty of murder in the first or second degree. It is contended that there was no evidence authorizing the court to give an instruction on manslaughter; that "the statement in the instruction that there was no evidence of justifiable homicide would be interpreted by the jury to mean that there was no evidence of excusable homicide"; and that "the effect of the instruction was to tell the jury that there was no evidence in the case of 'excusable homicide' to support the defense of accidental death presented by defendant." Defendant's theory is that because of a reference in the instruction to "excusable or justifiable homicide as these terms are hereinafter defined in this instruction," followed by a definition of "excusable homicide" and a statement that there was "not any evidence of justifiable homicide in this case," the jury "would presume the words had the same meaning." If the instruction is defective, it is not misleading or confusing. It contains a clear definition of "excusable homicide" and, when read with Instruction 9a, which deals with defendant's defense, to wit, "* * * that if the defendant did shoot and kill the deceased that the shooting and killing was an 'excusable homicide' * * *," it is clear that the instruction was not prejudicially erroneous in any respect. Further, defendant was not convicted of manslaughter and, if the instruction was without sufficient support in the evidence, the defendant was not prejudiced thereby, since it was error against the state of which defendant may not complain. State v. Cade, 326 Mo. 1132, 34 S.W.2d 82, 85.
Error is also assigned on the giving of Instruction 9a, because of its reference to Instruction 9, which "would lead the jury to believe that the court was declaring that there was no evidence to support the defense of accident or, as referred to by the court, 'excusable homicide.'" What we have previously ruled with reference to Instruction 9 sufficiently disposes of this contention. Instruction 9a is also attacked on the general ground that it did not properly declare the law of the case or properly instruct the jury on defendant's defense. Such assignments are too general to present anything for review on appeal.
Error is assigned on the court's refusal to give an unnumbered instruction which is set out in the motion for a new trial. The grounds of alleged error are not set out in detail and with particularity in the motion as required by Section 547.030 RSMo 1949, V.A.M.S., and the assignment must be overruled.
Other general assignments of error are that the Court erred in permitting the prosecuting attorney to discredit the State's witness, Lloyd Bledsoe, by showing his interest in his father's defense; and that the Court erred in permitting the witnesses Hugh Arthur and Burley Eubanks to testify concerning the so-called dying declaration of the deceased. Both of these assignments are insufficient to present anything for review. Unless the assignment in the motion for a new trial specifies the reasons why the ruling of the trial court is erroneous it presents nothing for review on appeal. State v. Nienaber, 347 Mo. 615, 148 S.W.2d 1024, 1026; State v. Buckner, Mo.Sup., 80 S.W.2d 167, 169; State v. Boyer, 342 Mo. 64, 112 S.W.2d 575, 580(7); State v. Powers, 350 Mo. 942, 169 S.W.2d 377, 378(4). The first assignment assumes a fact not shown by the record. We fail to find that any effort was made to discredit witness Lloyd Bledsoe or to show an interest in his father's defense. On both direct and cross-examination, Lloyd testified that his relationship with his father since July 28 had remained friendly. This fact did not tend to discredit the witness. In the second assignment, "the so-called dying declaration of the deceased" intended to be referred to is not specified in detail and with particularity, nor are any grounds of error in its admission set forth. The assignments are overruled.
Finally, error is assigned on the court's refusal to direct a verdict of not guilty, as requested at the close of the State's case. After this request had been refused, the defendant testified in his own defense and also offered other testimony. Accordingly, he waived his right to challenge the Court's action in refusing to direct a verdict of not guilty at the close of the State's case. State v. Grubbs, 358 Mo. 323, 214 S.W.2d 435, 436(3); State v. Cutter, 318 Mo. 687, 1 S.W.2d 96, 97(4).
We have carefully examined the entire record in this case. The information properly charged murder in the first degree and the evidence offered and shown by the record was substantial and sufficient to support the verdict of "guilty of murder in the second degree." The verdict is in due form and the punishment assessed is within that provided by statute. Section 559.030 RSMo 1949, V.A.M.S. Allocution was granted and defendant was duly sentenced and judgment was entered in accordance with the verdict.
The judgment is affirmed.
All concur.