State v. Allen

• Decision Date: 17 August 1938
• Docket Number: 35832
• Citation: 119 S.W.2d 304,342 Mo. 1043
• Parties: The State v. Granville Allen, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 304

342 Mo. 1043

The State v. Granville Allen, Appellant

No. 35832

Supreme Court of Missouri

August 17, 1938

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed and remanded (with directions).

Al N. Abrams and Geo. H. Jones for appellant.

(1) The court erred in refusing to sustain the demurrer offered by defendant in the nature of an instructed verdict offered at the close of all the evidence. State v. Huff, 161 Mo. 487, 61 S.W. 1104; State v. Prendible, 165 Mo 353, 65 S.W. 566; State v. Welton, 225 S.W. 968; State v. Liston, 292 S.W. 48, 315 Mo. 1305; State v. Gregory, 96 S.W.2d 52; State v. Bennett, 87 S.W.2d 161; (2) Because there was no substantial evidence upon which the jury could convict defendant and upon which this verdict could be based. State v. Dilley, 76 S.W.2d 1087; State v. Bass, 157 S.W. 787, 251 Mo. 107; State v. Nagle, 32 S.W.2d 601, 326 Mo. 661; State v. Archer, 6 S.W.2d 914; State v. Goldstein, 225 S.W. 913; State v. Wheaton, 221 S.W. 28; State v. Edmundson, 218 S.W. 867; State v. Frisby, 204 S.W. 4; State v. Miller, 137 S.W. 890, 234 Mo. 588; State v. Johnson, 209 Mo. 357; State v. Gordon, 199 Mo. 597; State v. De Witt and Jones, 191 Mo. 58; State v. Francis, 199 Mo. 693; State v. Crabtree, 170 Mo. 657.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in overruling the appellant's demurrer at the close of the entire case. State v. Glover, 50 S.W.2d 1049; State v. Goodwin, 61 S.W.2d 960; State v. Jefferson, 64 S.W.2d 929; State v. Sharpe, 34 S.W.2d 75; State v. Wright, 85 S.W.2d 7. (2) The assignment that the verdict was a result of bias, passion and prejudice is too general. Secs. 3735, 3984, R. S. 1929; State v. Jackson, 102 S.W.2d 612; State v. Flynn, 96 S.W.2d 506; State v. Thompson, 92 S.W.2d 892; State v. Oliver, 87 S.W.2d 644; State v. Clark, 33 S.W.2d 890; State v. Ellis, 234 S.W. 845.

OPINION

Leedy, P. J.

Granville Allen, the appellant, was charged by indictment in the Circuit Court of Jackson County with murder in the first degree, in having shot and killed one Howard Preston on October 20, 1936. Upon a trial, he was convicted, and from the judgment and sentence imposing the extreme penalty, in accordance with the verdict of the jury, he has prosecuted this appeal.

The points urged for reversal are only two, i.e., a challenge of the sufficiency of the evidence, and the contention that the verdict "was the result of passion, bias, prejudice and partiality." Looking to the first of these assignments, we find that there is no dispute as to most of the main facts in the case. That deceased met his death while in a struggle with appellant, a burglar in the Preston apartment, is not controverted. Appellant's contention with respect to the sufficiency of the evidence is limited to the single proposition that there was no substantial evidence that he fired the fatal shot.

Howard Preston, the deceased, was a white man, and at the time of his death was forty-seven years of age. He lived in the Northeast section of Kansas City in a four-room apartment located at 1010 Chestnut Street. The household consisted of himself, his wife, their son, Bud, and the latter's wife. The family had retired on the night of October 19, 1936, the elder Prestons sleeping on an in-a-door bed in the dining room, and the son and daughter-in-law occupied the bedroom. The widow of deceased, testifying on behalf of the State, clearly developed the facts in relation to the homicide. From her testimony it appears that sometime after midnight, she was awakened by voices in the room, one of which she recognized as that of her husband. When she started to get up, her husband said, "Lay down mother; he will kill you." At that time an intruder (admittedly appellant) said, "Yes, this is a hold-up. You better lay down, and not start screaming, or I will kill you." He searched Mr. Preston's trousers, and demanded money -- "He kept asking for money -- wanted more money. And we told him we didn't have any more. He said we did have more. And he just kept saying he was going to kill us, he was going to kill us, and kept flashing that gun around first at our shoulder and then stepping back." He asked Mrs. Preston where her pocketbook was, and was told it was in a drawer, but wasn't much in it. "He walked around there, and took his flashlight and gun in one hand and held that on us and went to the drawer. He didn't find any more, and he went back again and still didn't find any. We said we didn't have any, and he said well if we didn't have any money for him he would kill us and go." According to the further testimony of Mrs. Preston, he then "put the gun on us again" and demanded that she and Mr. Preston have sexual intercourse, and said that thereafter he would kill Mr. Preston and have intercourse with her. Whereupon Mrs. Preston arose and ran into the bedroom screaming for her son. She aroused her son, and his wife, and, grabbing a stick of wood, followed her son back toward the dining room. Appellant, with gun and flashlight, was coming toward that door, and Mrs. Preston "hit him with the stick of wood over my son's shoulder." Whereupon, Bud, the son, jerked her back into the kitchen, and shut the door, and was holding the door, and in a few seconds after that a shot was heard. Bud remarked, "My God, Mother, I can't stand this" and so he "pulled the door open and ran in there." Mrs. Preston "ran out the back way, . . . and started screaming out there, and I couldn't get anybody, so I came back into the room and I saw Mr. Preston laying on the bed covered with blood and bleeding." She got as far as the foot of the bed and noticed her son was down on the floor, and that appellant was sitting on top of him. She "reached back and grabbed some beer mugs, and rushed over and started beating him (appellant) on the head. I beat until there wasn't anything left in my hands but the handles . . . Then he (appellant) reached up and grabbed me under the arms and swung me over by the table. I didn't know where the gun was. . . . And I heard a shot and felt his (appellant's) body slump -- he still had me -- and my son commenced to hit him in the face with his fist and knocked him away from me, and I dropped back against the bed." Mrs. Preston then ran out the door to the neighbors to call an ambulance, and when she "came back in the room and was standing by the table and just as he (appellant) was getting off the floor and trying to make it for the window, and he knocks me off my feet and goes through the window -- shade and pane and all." Mrs. Preston's son and daughter-in-law were called as witnesses on the part of the State, and their testimony corroborated her as to the circumstances under which deceased was shot and killed. The son testified at length as to the struggle between his father and appellant following the shot which he and his mother heard after the latter had struck appellant with the stick of wood. He also testified to his own encounter with appellant, in which chairs were broken, and the bed was torn down, and the trigger of appellant's pistol was snapped on his, Bud Preston's, hand. The son testified, without objection, that while his father "was on his hands and knees at the foot of the bed -- the standard was knocked our from under the bed . . . he said, "Son, he has killed your dad."

Appellant was apprehended almost immediately following the shooting. He was seen to leap from the window in the Preston apartment, and he was followed to a nearby alley where he had fallen wounded. He was taken at once to the hospital, where he was searched, and deceased's keys found in one of his pockets. In this connection it may be said that appellant expressly admitted ownership of the gun with which deceased was killed, and with which he himself had been shot by Bud Preston. On November 8, while he was still in the hospital, appellant made a written statement, which was introduced in evidence at the trial. The facts as detailed therein, as to the homicide itself, were substantially in accord with his testimony at the trial.

Appellant is a young colored man. On the stand he admitted a previous conviction for burglary, and that he had served a term "at Boonville" therefor. He testified that on the night in question he had been drinking to some extent; that at a late hour he left his home "and I goes on out Northeast" with a pistol and a bottle of liquor; that he finally ran out of whiskey, and threw the bottle away and started back home, and had reached the vicinity of Tenth and Chestnut Streets. From that point on, his version of the affair, as related on his own direct examination, is as...