State v. Crowley

• Decision Date: 04 May 1940
• Docket Number: 36900
• Parties: The State v. Leroy J. Crowley, Appellant
• Court: Missouri Supreme Court

139 S.W.2d 473

345 Mo. 1177

The State v. Leroy J. Crowley, Appellant

No. 36900

Supreme Court of Missouri

May 4, 1940

Appeal from Circuit of City of St. Louis; Hon. Julius R Nolt, Judge.

Reversed and remanded.

Howard Elliott and Royal L. Coburn for appellant.

(1) It is good ground for a new trial where none of the jury on voir dire disclosed the fact that they had expressed an opinion as to the guilt or innocence of the defendant, and it is subsequently proved that one of them had previously declared his belief as to the defendant's guilt and had stated that he ought to be punished. A verdict after such circumstance should be set aside. State v. Wyatt, 50 Mo. 309; State v. Burnside, 37 Mo. 343; State v Gonce, 87 Mo. 627. (2) Whether in such case the juror had prejudiced the case is a question of fact to be determined by the trial judge on sworn statements. The determination should not be made to depend on the conclusion of the juror as to whether or not he could or would divest himself of a prejudice which the evidence shows existed. Theobald v. St. Louis Transit Co., 191 Mo. 416, 90 S.W. 354; State v. Foley, 144 Mo. 600, 46 S.W. 735; State v. Gonce, 87 Mo. 627. (3) The affidavits as to the prejudiced remarks of the juror prior to the voir dire being uncontradicted, there was no issue on the truth of the allegations therein contained left for the court to determine. State v. Connor, 252 S.W. 717; Gibney v. Transit Co., 204 Mo. 721, 103 S.W. 47. (4) Refusal of new trial where prejudice of juror discovered after verdict is error. State v. Connor, 252 S.W 717. (5) It is error to admit an isolated portion of conversation involving a threat in absence of a showing of the subject matter of the conversation. State v. Markel, 336 Mo. 129, 77 S.W.2d 112. (6) In a criminal prosecution it is the duty of the trial court, whether requested or not, to charge the jury fully and correctly upon every point involved in deciding the case. Sec. 3681, R. S. 1929; State v. Singleton, 77 S.W.2d 80; State v. Green, 331 Mo. 723, 55 S.W.2d 965; State v. Lambert, 318 Mo. 705, 303 S.W. 707; State v. Fredericks, 136 Mo.App. 51, 37 S.W. 832; State v. Gurnee, 309 Mo. 6, 274 S.W. 58; State v. Jackson, 267 S.W. 855; State v. Burrell, 298 Mo. 672, 252 S.W. 709; State v. Conway, 241 Mo. 271, 145 S.W. 441. (7) In murder prosecution, where defendant offered evidence that shooting was accidental, the failure of the court to give an instruction authorizing an acquittal if jury found shooting was accidental, constitutes reversible error. State v. McNally, 87 Mo. 644; State v. Coff, 267 Mo. 14, 133 S.W.2d 637; State v. Fielder, 330 Mo. 747, 50 S.W.2d 1031; State v. Bartley, 337 Mo. 229, 84 S.W.2d 637. (8) The defendant offered substantial evidence to the effect that the shooting in the instant case was accidental, and, therefore, he was entitled to an instruction defining accidental homicide. Sec. 3986, R. S. 1929; State v. McNally, 87 Mo. 644; State v. Bennett, 87 S.W.2d 159; State v. Clinton, 278 Mo. 344, 213 S.W. 841; State v. Stallings, 326 Mo. 1037, 33 S.W.2d 914; State v. Stallings, 334 Mo. 1, 64 S.W.2d 643; State v. Whitchurch, 339 Mo. 116, 96 S.W.2d 30.

Roy McKittrick, Attorney General, and Max Wasserman, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance. State v. Kenyon, 126 S.W.2d 245; Sec. 3982, R. S. 1929. (2) The verdict is responsive to the issues and is in proper form. State v. Baublitts, 324 Mo. 1207, 27 S.W.2d 16. (3) General assignments of error will not be reviewed by this court. State v. Cox, 22 S.W.2d 799; State v. Thornton, 58 S.W.2d 318; State v. Bunch, 333 Mo. 20, 62 S.W.2d 442; State v. Carroll, 333 Mo. 558, 62 S.W.2d 867; State v. Tharp, 34 Mo. 46, 64 S.W.2d 253; State v. Maness, 19 S.W.2d 630; State v. Kowertz, 324 Mo. 748, 25 S.W.2d 117; State v. Woolsey, 33 S.W.2d 957; State v. Layton, 332 Mo. 216, 58 S.W.2d 548; State v. Barr, 336 Mo. 300, 78 S.W.2d 106; State v. Bagby, 338 Mo. 951, 93 S.W.2d 249; State v. Reagan, 108 S.W.2d 395; State v. Schnelt, 231 Mo. 241, 108 S.W.2d 381; State v. Long, 341 Mo. 766, 108 S.W.2d 390; State v. Boyer, 342 Mo. 64, 112 S.W.2d 581; State v. Todd, 342 Mo. 601, 116 S.W.2d 115; State v. Kennon, 123 S.W.2d 46; State v. Huddleston, 123 S.W.2d 184. (4) Appellant cannot complain of failure to give instruction on accidental killinge where no request was made for such instruction. State v. Bartley, 337 Mo. 229, 84 S.W.2d 640; 4 Warren on Homicide, sec. 342, pp. 306, 307; State v. Ray, 225 S.W. 973; Webb v. State, 149 Ga. 211, 99 S.E. 630. (5) Remoteness of statement or threat by appellant does not affect its competency as evidence. State v. Dixon, 190 S.W. 292; State v. Fletcher, 190 S.W. 320. (6) Assignment of juror's misconduct must be supported by both affidavit of appellant and his counsel. State v. Trainer, 336 Mo. 627, 80 S.W.2d 135; 1 Thompson on Trials, sec. 116, pp. 134, 141; State v. Rasco, 239 Mo. 587, 144 S.W. 465; State v. Flinn, 96 S.W.2d 513. (7) Allegation that verdict represents compromise must be supported by record to be considered on appeal. State v. Moulder, 57 S.W.2d 1065.

OPINION

Leedy, J.

Charged by information in the Circuit Court of St. Louis County with murder in the first degree, in having shot and killed one John Currie on September 26, 1934, appellant was convicted under said information of murder in the second degree. The jury assessed his punishment at ten years' imprisonment in the state penitentiary, and, after an unavailing motion for a new trial, he appealed.

Appellant and his partner, Joseph L. Butz, owned and operated a tavern in St. Louis County, and it was in their place that the shooting of Currie, the deceased, occurred. Appellant was 35 years of age, and the deceased was 24. Currie arrived at the tavern early in the afternoon on the day in question. He loitered about the place, watching a card game and drinking beer, for several hours before the shooting which took place about 4 P. M. At the time of the shooting and for several hours prior thereto, there were seven or eight customers or frequenters in the place -- mostly younger men, practically all of whom were acquainted with each other, and with appellant and deceased. Four or five of them were at a table near the bar playing a game of cards; others were playing a pin-ball machine, eating sandwiches, drinking beer, etc. Seven of them testified as witnesses for the State, and one on the part of appellant.

The State's evidence was to the effect that while Currie was seated peaceably at the bar drinking a glass of beer, appellant suddenly came from behind the bar, approached Currie from the rear, and without any demonstration or warning of any kind, hit him in the jaw, knocking him off the stool, and to the floor; that when Currie attempted to get up, appellant said, "Tell me the other two fellows that was with you;" that he hit him again, and knocked him down the second time; that one of the customers, Earl Moeller, who was in the card game, grabbed appellant, and took him toward the south wall, and another witness, Halveland, who was also in the card game, said, "This is your place of business, use your head," or words to that effect; that one McCrea, another of the card players, said to appellant, "Why don't you wait until he is sober before you hit him?" To which appellant replied, "I'll give you some of it, too," or words to that effect; that when Currie did get up, he staggered over toward the south wall, and appellant, who in the meantime had been turned loose, got behind the card table, and pulled out a gun and shot Currie, and the latter fell. When he did so, a chair was knocked against Crowley, who also fell. The above facts as to the drawing and discharging of the gun were testified to directly by four witnesses. Three others were not looking at the precise moment that the gun was fired, but each of them saw it in appellant's hands immediately after Currie was shot and one of the three was positive in testifying that the shooting took place before appellant fell. There was testimony to the effect that the only blows struck were those delivered by appellant, and that no one was attempting to attack him. The deceased was not armed. His death was caused by a bullet wound through the chest. After the shooting those in the place, including appellant, ran to the street. Appellant was brandishing his revolver, which he pointed at McCrea, who had run across the street. The gun was taken away from him by his partner, Butz. It was of small caliber.

In a written statement made to the officers two days after the homicide, appellant related that after Currie had consumed some beer he had ordered, he said he could not pay for it, and when appellant insisted that he wanted the money Currie made an insulting remark, which angered appellant and he "came from in back of the bar after him, he hit me and I started after him. . . . We both hit each other a couple of times, I don't know whether he hit first or if I hit him first. The fellows that were in there, those I mentioned above, and a few I don't know the names of, looked like they were sticking together. Les Halveland grabbed me from in back, by my arms and pulled me back into the rest of the bunch. I jerked one arm loose, and Johnny Currie was coming toward me. I had a gun in my back pocket. I pulled the gun out of my pocket and shot once at Johnny Currie."

Witness LaFleur, the only one of the frequenters called on the part of appellant, testified to the effect that he was engaged in the card game when there was an argument in the front end of the place. He heard a little scuffle and looked around, and thought it was all over. And appellant came over and stood by the aside of the card table and the first...