Summary
In Lowe, the defendant testified that shots were fired at him from inside a building prior to the assault upon the deceased, and according to the defendant's testimony, he was confronted with a simultaneous attack by several persons before he shot the deceased.
Summary of this case from State v. FergusonOpinion
No. 43535.
September 14, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS.
Morris A. Shenker, St. Louis, for appellant.
John M. Dalton, Atty. Gen., David Donelly, Asst. Atty. Gen., for respondent.
Gus Lowe appeals from a judgment imposing a sentence of imprisonment for forty years for the murder in the second degree of Mary Peoples. Of the points briefed, we think we need only develop the attacks against the indictment and two of the instructions.
Mary Peoples and her two daughters, Ethel Jean and Earciel Purnell, lived at 2904 Chouteau avenue, St. Louis, Missouri The daughters were 18 and 16 years of age, respectively. Mrs. Peoples was a divorcee. She was employed at the Famous-Barr company and also operated a beauty shop at her home. She and appellant had been going together for several years. Between 6:15 and 6:45 on the afternoon of January 26, 1951, appellant, accompanied by two men, entered the Peoples' home. The two men were Jack Leach and George Jones, but neither daughter knew them by name.
The daughters, in response to inquiries by appellant, informed him their mother was not at home and that they did not know where she had gone. He asked Ethel a second time, raising his voice, and when she repeated her answer, he asked what she meant, to which she did not reply. Appellant and Jones went into a bedroom, talked for a minute or two, and then the men departed.
Appellant's Cadillac was parked about a half block from Mrs. Peoples' house. Jack Leach often drove appellant's car for him and was doing so that afternoon. George Jones soon went home and appellant and Leach sat in the automobile. Leach testified that he asked appellant why he was waiting so long; that appellant answered he was supposed to give Mrs. Peoples some money and had to see her; that later appellant told him he was going to get a sandwich and for him to wait, and, upon hearing some shots, that he left, driving appellant's car to his, Leach's home.
Ethel Purnell testified that about 7 o'clock she heard appellant say, "Wait, Mary," and her mother answer "No, Lowe," and then she heard a gunshot. The house and screen door were closed. She ran to the door, opened it, looked through the screen door, and saw her mother standing in the door, just standing there, and appellant, a "few" feet away shooting her mother. A bullet broke the glass; she became frightened, shut the door, heard another shot, opened the door again and helped her mother walk in the house. Her mother's purse was on her mother's arm and was closed. Her mother did not have a gun, and there was no gun in her purse. There were five or six shots, three or four having been fired while she held the door open.
Officer Joseph Schovanez testified that he was in the jewelry store next door to Mrs. Peoples' residence when he heard four or five shots; that he went out on the side-walk and saw appellant with a pistol in his right hand; that he, witness, reached for his gun, walked up to appellant and took appellant's gun, and appellant said: "I just shot Mary."
Several witnesses, including Earciel Purnell, although they did not see the actual shooting, gave corroborating testimony on behalf of the State.
Mrs. Peoples had been struck by two bullets. One was a through and through wound below the right knee. The other entered the right buttock, passed through the body and out just a little below and to the right of the navel, and resulted in her death the following day.
Appellant testified that he got out of his car to get a sandwich and saw Mrs. Peoples crossing the street. He walked down to meet her and met her near the jewelry store. He said "Hello, Mary"; and she said she didn't want to have anything more to do with him. He asked "Why, Mary?"; and she asked if he had brought the money he had promised her. She was very angry. Appellant said "Yes, I have $50." She answered that she did not want $50, she wanted $200. Appellant said: "Well, I give you the other hundred and fifty Monday." They walked up to her place; "Then she said: "Don't want a damm thing else to do with you s__ o_ a b____.' I said `Oh, Mary, don't talk that way. We can talk the thing over.' I say, `Wait a minute, let's talk a while.' So, she said, `No, I am going.' So, I say, `Well, o. k. then, that is all right.'" Mrs. Peoples stepped onto the "vestibule." Appellant started to his car. At that time she said: "You s__ o_ a b____' we are going to get rid of you," and she opened her purse and started into it. He knew she kept a pistol and carried it in her purse at times. He said "Don't shoot, Mary, don't shoot." At that time a shot was fired, and he got his pistol out and "fired down on the ground to frighten Mary"; and not at her. Two or three more shots appeared to come from inside the building. He was about 12 or 14 feet from her, and she was facing him. Appellant's gun was a German Luger pistol. He said the clip had about seven cartridges in it. He shot about four times.
There is no substance in appellant's contention that the indictment is fatally defective. The indictment charged appellant with murder in the second degree. The claim of error is based upon a purported copy of the indictment appearing at the beginning of the transcript of the trial proceedings, and on the ground that the clause charging that appellant feloniously et cetera shot "off, to, at, against and upon the said Peoples" omitted the Christian name of deceased, although her full name appeared in all other instances, eight in number, throughout said copy. The copy of the indictment certified to by the clerk under the seal of the court carries the full name of the deceased in each instance wherein her name is mentioned. The indictment is proper in form and substance. State v. Wilson, Mo.Sup., 231 S.W. 596, 599[1]; Ex parte Keet, 315 Mo. 695, 287 S.W. 463. The transcript is certified to by the court reporter only as to "my stenotype notes taken in said cause." The court reporter evidently made an inadvertent error in copying the indictment. Appellant's contention would be without merit if the actual situation were as claimed by appellant. Section 545.030(14, 18) RSMo 1949, V.A.M.S.; State v. Taylor, 362 Mo. 676, 243 S.W.2d 301, 302[3]; State v. Stokes, 288 Mo. 539, 232 S.W. 106, 110[5]; State v. Honig, 78 Mo. 249, 252(1); 42 C.J.S., Indictment and Information, § 142, page 1050, notes 78-80.
Instruction No. 2 defined "murder in the second degree," "willfully," "malice," "malice aforethought," and "feloniously." The first paragraph of Instruction No. 3, on second-degree murder, referred to said definitions. The court also gave instructions on manslaughter (No. 4), on justifiable homicide, self-defense (No. 5), on excusable homicide, accident (No. 6), on the burden of proof, and others. We have considered the instructions in the light of appellant's attacks against them. Each instruction is to be considered as an entirety and all the instructions are to be read together, the same as in civil cases. They are numbered for convenience in considering them and not for the purpose of giving them some different effect. We find, with the exceptions hereinafter noted, that, reading the instructions together, appellant has not established reversible error. State v. Farris, Mo.Sup., 243 S.W.2d 983, 987[8]; State v. Sapp, 356 Mo. 705, 203 S.W.2d 425, 430[5, 8]; State v. Glass, 318 Mo. 611, 300 S.W. 691, 693[7-9]; 23 C.J.S., Criminal Law, § 1321, page 921; State v. Lewis, 248 Mo. 498, 504, 505, 154 S.W. 716, 719[2]; State v. Johnson, 349 Mo. 910, 163 S.W.2d 780. 784[16, 17]; State v. Douglas, 312 Mo. 373, 278 S.W. 1016, 1025[23, 24]; State v. Lockwood, 119 Mo. 463, 467, 24 S.W. 1015, 1016; Section 545.030(16) RSMo 1949, V.A.M.S.; State v. Farrell, 320 Mo. 319, 6 S.W.2d 857, 860[8]; State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, 57.
Instruction No. 5, as contended by the appellant and conceded by the State, restricted appellant's right to an acquittal on the ground of self-defense to whether appellant had a reasonable apprehension that "Mary Peoples was about to take his life, or do to him some great personal injury." Appellant contends the instruction is erroneous because too narrow and under the evidence should have embraced a reasonable apprehension on the part of appellant of such an attack by some other person or persons.
There was testimony indicating that Mrs. Peoples and appellant had had trouble several months prior at a time when she had a butcher knife in her hand, and in which the two daughters took a part. Appellant testified that the shots he did not fire seemed to come from the beauty salon; and on cross-examination: "Q. How many [shots] did you hear fired from inside the beauty salon? A. There was one shot fired first and then three more shots." This testimony was sufficient to support the submission. State v. Kinard, Mo.Sup., 245 S.W.2d 890, 893[5, 6]; State v. Wright, 352 Mo. 66, 175 S.W.2d 866, 871[3], 872; State v. Stone, 354 Mo. 41, 188 S.W.2d 20, 22[7].
The following authorities, among others, sustain appellant's contention that the instruction as given constituted reversible error under the facts. State v. Adler, 146 Mo. 18, 25, 47 S.W. 794, loc. cit. 795, 796; State v. Nelson, Mo.Sup., 231 S.W. 590, 592[3]; State v. Fielder, 330 Mo. 747, 50 S.W.2d 1031, 1033[1-3]; State v. Jordan, 306 Mo. 3, 268 S.W. 64, 71[6].
The same error appears in Instruction No. 6 on excusable homicide.
We have considered the other points developed in appellant's brief. They should not recur upon a retrial and need not be developed.
For the error in Instructions 5 and 6, the judgment is reversed and the cause remanded.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.