State v. Dill

• Decision Date: 12 September 1955
• Docket Number: No. 2,No. 44498,44498,2
• Citation: 282 S.W.2d 456
• Parties: STATE of Missouri, Respondent, v. Lillie DILL, Appellant
• Court: Missouri Supreme Court

Page 456

282 S.W.2d 456

STATE of Missouri, Respondent, v. Lillie DILL, Appellant.

No. 44498.

Supreme Court of Missouri, Division No. 2.

Sept. 12, 1955.

Motion for Rehearing or for Transfer to Court En Banc Denied

Oct. 10, 1955.

Morris A. Shenker, Sidney M. Glazer, Mark M. Hennelly, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Will F. Berry, Jr., Asst. Atty. Gen., for respondent.

EAGER, Judge.

Defendant, Lillie Dill, was indicted in the City of St. Louis for the first degree murder of Alonzo Small on September 7, 1953. She was found guilty of manslaughter and sentenced to ten years in the penitentiary. Motion for new trial was filed and overruled. The case has been briefed here by both parties.

The essential facts shown in the state's case are as follows: the slaying occurred in a beer tavern at 1416 Biddle Street in St. Louis at about 9:00 P.M. There were various people then present, but the number is uncertain. The place was operated by one Sampson Jones, who was present. The deceased, Alonzo Small, (usually referred to as Lonzo) was sitting at a table with two other men. One Josephine Stanley had sat down at that table with a bottle of beer shortly before the shooting. According to the state's witnesses, the defendant, Lillie Dill, entered the front door of the tavern a few minutes before the shooting, walked to the side of the deceased, touched him on the shoulder and apparently spoke to him; the witnesses differ as to whether he answered her; she walked a few feet away, came back and tapped him on the shoulder and perhaps spoke again. If deceased answered her at all, it was merely a casual remark or question. Defendant then walked a short distance away (probably four to eight feet) and while facing toward the deceased, drew a revolver out of her bosom, pointed it at the deceased and started shooting. (Certain of the spectators then began a hasty exit, some,--they say,--so hurriedly that they only heard one shot.) Several of the witnesses testified that they heard four shots, and in rather rapid sucession. Sampson Jones, who had been in the rear of the place, slipped around the bar and grabbed the defendant, 'tussled' with her for the gun, both in the place and out on the sidewalk where they fell down. He was able to get the revolver from her, either by her own volition or otherwise. Soon after the shooting started, Lonzo Small fell to the floor, never spoke, and was shortly found to be dead. He had no weapon of any kind. There was very definite evidence that the defendant pointed the revolver at Lonzo Small while he was seated at the table and immediately before she began shooting. The weapon used was a .38 snub-nosed Colt revolver which was turned over to the police by Sampson Jones and which was produced and identified at the trial. After the shooting the revolver was found to contain two live shells and four empty shells. There was some evidence that Small at the time appeared to be nodding or sleeping or about half asleep, with his arms on the table and his head bent forward. The testimony of the witnesses for the state (with one exception, noted later) did not show any action or participation by Josephine Stanley in the affray, nor did it show that the defendant shot at Josephine Stanley. Two of the witnesses were nephews of the deceased. The deceased was killed with one shot through the lower part of the neck or upper part of the chest, entering above the collarbone. No witness in the case testified to any threats by the deceased or to any action or argument on his part.

A signed statement given by defendant to police was introduced by the state without objection. This followed rather generally her testimony at the trial, except for matters hereinafter noted. It was shown in evidence that the bullet which killed the deceased was fired from the revolver which had been used by the defendant, and that this revolver required a pressure of about four pounds on the trigger when fired single action (that is, when cocked first) and about twelve to fifteen pounds of pressure when fired double action. One witness testified that the defendant said to the deceased before the shooting, 'Get up and come on out of here you so-and-so, I told you I was goin' to kill you in this place.' Josephine Stanley testified (for the state) that after defendant fired at Lonzo Small and hit him, 'She fired at me and shot me through the right shoulder,' while the witness was seated at the table; that when Lillie 'leveled down' to shoot at her again, 'I jumped up and grabbed her arm,' and that Sampson Jones 'tussled' with Lillie trying to take the gun away from her; and that one shot was fired 'after I grabbed her arm.'

The defendant testified: that the deceased lived at her place part of the time and at a house kept by him and his nephew part of the time; that she cooked for him; that she stayed at 'his house' sometimes; that she had previously, at his request, taken a 'gun' to him on perhaps three or four occasions, but she did not know definitely whether it was his same gun or not; that this particular revolver had been in her house for about two days; that shortly before the shooting the deceased called her on the 'phone and told her to bring his gun to him, stating that he had 'walked into some trouble and needed it,' and that he would meet her at a certain street corner; that she got the gun from under the pillow on her bed, put it in her bosom and walked to that location. She did not see him on the street corner, so she looked first in one tavern and then in the tavern in question, saw him through the window and walked on in; that she proceeded to his side, touched him on the shoulder and said, 'Now, come on; I got it;' that he looked right past her, so she walked around, came back, touched him again on the shoulder and he again 'looked off;' that at this time Josephine Stanley jumped up, grabbed a beer bottle and said, 'I'll take care of this old no good biddy,' and started 'cussing me,' and at the same time 'she made for me then;' that at this time the defendant 'pulled the gun out of my bosom * * * intendin' to frighten * * * not intendin' to shoot nobody--harmin' nobody;' and 'I don't know whether I pulled the trigger or what happened,' but the gun went off, 'I would say once.' She further testified that Josephine caught hold of her and that they 'tussled' from side to side; that Josephine caught her by the hair, and finally Sampson Jones entered the melee and took hold of the defendant and that they all wrestled out to the sidewalk where they fell; that Josephine kept trying to get Sampson Jones to give her the gun, to which defendant protested vigorously, and defendant finally gave it to Sampson; that at the time of the struggle relatives of the deceased were yelling, 'Kill 'er, kill 'er,' so she ran away some distance through a 'gangway' and hid until some people behind her had passed by. She also testified on cross-examination: that on this occasion she did not look to see if the gun was loaded and that she had never fired a gun before; that she did not know when anybody was shot on the occasion in question. No other witness testified for defendant concerning the occurrences in question. There was no evidence that defendant and deceased were or had been married.

The trial court instructed on first degree murder, second degree murder, and manslaughter; it further instructed on self-defense and accident and gave a very clear general instruction on the presumption of innocence, reasonable doubt, and the burden of proof, together with several cautionary instructions. The first, and perhaps most vigorous, claim of error concerns the self-defense instruction. That instruction (digested to its essence) told the jury: '* * * if you believe * * * that at the time * * * the defendant shot and wounded Lonzo Small, if you find the defendant did so, she, the defendant, had reasonable cause to believe and did believe that * * * Josephine Stanley, was about to take her life or to do her some great personal injury, * * * and * * * that it was necessary for her to use force in order to protect herself from such danger * * * then defendant should be acquitted on the ground of self-defense. Whether the defendant had reasonable grounds to believe that such danger existed, and whether she shot and wounded the said Lonzo Small while defending herself against attacks by another person in the honest belief that it was necessary for the protection of her life or person, are questions which you must determine from all the evidence in the case. Even if no real danger existed, yet if the defendant had reasonable cause to believe, and did believe, that it existed, she would be justified in acting upon such belief and should be acquitted.' (Italics inserted).

We have had grave doubt as to whether the defendant was entitled to any self-defense instruction at all in this case, in view of her utter failure to testify that she did intentionally shoot in self-defense. However, her testimony was not so positive in affirmatively eliminating self-defense as that in the case of State v. Baker, Mo., 277 S.W.2d 627. In view of previous decisions permitting that defense to be shown or aided by other evidence of the state or defense, and even to be used inconsistently with other defenses, State v. Wright, Banc, 352 Mo. 66, 175 S.W.2d 866, we have determined, with some misgivings, that such an instruction was proper here and we proceed to a consideration of it.

Appellant's first complaint of this instruction is that it directed an acquittal only if defendant believed that it was necessary for her to shoot Lonzo Small in order to protect herself, and that it thus deprived defendant of the benefit of self-defense if deceased was unintentionally shot. We do not think the instruction is subject to that complaint. The cases cited (such as State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492) hold that if one, acting in justifiable...