State v. Ball

• Decision Date: 05 June 1924
• Docket Number: No. 25259.,25259.
• Citation: 262 S.W. 1043
• Parties: STATE v. BALL.
• Court: Missouri Supreme Court

262 S.W. 1043

STATE v. BALL.

No. 25259.

Supreme Court of Missouri, Division No. 2,.

June 5, 1924.

Appeal from Circuit Court, Jackson County; Thos. B. Buckner, Judge.

Reuben H. Ball was convicted of manslaughter, and appeals. Reversed and remanded.

Ralph S. Latshaw, of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and Geo. W. Crowder, Asst. Atty. Gen., for the State.

HIGBEE, C.

The defendant was indicted for murder in the first degree for shooting and killing Peggy Morris, alias Peggy Parsons, on January 17, 1923. He was tried ande convicted of manslaughter on February 13, 1923, and his punishment assessed at imprisonment in the penitentiary for a term of ten years.

The statement prepared by appellant's. learned counsel is as follows:

"The evidence at the trial disclosed that the defendant, then 28 years old, since coming to Kansas City from North Carolina seven years previously thereto, had been employed continuously by his older brother as a machinist;. that defendant was not strong physically; that he had been rejected from the army in the World War because of tuberculosis. Defendant established his good, general reputation by the number of witnesses permitted by the trial court, for being a peaceable, quiet, law-abiding citizen and also for general morality, neither of which reputations was controverted by the state.

"About two years before the homicide, defendant met the deceased, Cecelia Parsons, also known as Peggy Morris, who had previously followed the vocation of a nurse. This acquaintance apparently ripened into love, resulting in a marriage engagement between deceased and defendant. Defendant assisted deceased in furnishing a flat at No. 1324 Paseo in Kansas City and had rented a room there from deceased until such time as defendant should have saved sufficient money to marry the deceased.

"On the evening preceding the homicide, defendant overheard deceased answering telephone calls in her apartment that aroused his suspicions of her virtue and fidelity. Defendant thereupon determined to move to other quarters and terminate the relations between himself and deceased. Defendant thereupon, by telephone, which conversation deceased heard, engaged a room in the lodging house of Mrs. Evans. Defendant then went to the rooms of a friend by the name of Sparks, where he remained until about midnight, returning to his room, where a misunderstanding occurred between deceased and defendant about the presence of a man in her apartment. Defendant then returned to the home of said Sparks to spend the remainder of the night. Defendant returned to his room in the apartment of deceased about 7 o'clock in the morning of January 17, 1923, the date of the homicide, for the purpose, as stated by defendant, of removing his effects to another boarding place. Defendant there found two young taxi drivers by the names of Arthur Friedburg and George Ruffolo in bed with deceased. The rooms in the apartment were then dark. Defendent went to the bathroom, bathed his face, and went to his room. Shortly thereafter deceased went back to the room of defendant. An altercation thereupon ensued and `an awful racket,' during which the deceased called for the two young taxi drivers to come to her aid. Whether one of these taxi drivers had a drawn revolver there, and whether deceased was in the act of procuring a revolver from her trunk to shoot defendant following a threat then expressed to defendant, and whether defendant then shot. in self-defense and to get out of his apparent danger, were issues presented for determination during the trial. No witness except defendant testified to having seen or heard the words spoken between deceased and defendant immediately preceding the firing of two shots, one of which inflicted a mortal wound upon deceased, from which deceased died at the City Hospital a couple of hours thereafter. Three revolvers were found in the apartment of deceased; one belonging to defendant, one was found in an open trunk of deceased, and one was found under the mattress of the bed lately occupied by deceased and the two witnesses, Friedburg and Ruffolo."

The state read in evidence a statement signed by the defendant at the police station a few hours after his arrest. It was shown that the defendant said he wanted to make a statement, and that it was voluntarily made, without persuasion, threats, or promises of any kind on the part of the officers who had him in custody. The defendant, however, testified that the officers "told me I had better talk." He also testified that his mind was a blank; that he did not remember what he said. On cross-examination, he admitted his signature to the statement and said: "I guess I did make the statement." It reads:

"My name is Reubin Ball. I am 28 years of age. I live at 1324 Paseo. I am a machinist by trade. I have been working for my brother, who conducts the Ball Grinding Company, at 710 Oak St.

"About two years ago I met Peggy Parsons, alias Peggy Morris, through a friend of mine. About three weeks ago I went to live at Peggy Parson's home at 1324 Paseo. I slept with Peggy a few nights every week. Last night, January 16, 1923, I came home about 6:00 P. m. I remained there until about 9:00 p. m. and then left home. During the time I was at home she received several telephone calls. The calls on the telephone made me mad at her. I returned home about 12:00 midnight and on entering the apartment I found some stranger with Peggy. Peggy, myself and the other man went out to get something to eat. We returned to the apartment and there I got into an argument with Peggy and the man. About 1:00 a, m. Peggy left home in a yellow taxi. I then left home and went to Jake Spark's home at 1301 Campbell St., and remained there the balance of the night. I left Spark's home about 7:30 a. m. and came to 1324 Paseo. On entering the apartment I went to the bedroom and there found Peggy and Arthur Friedberg in bed together, both being undressed. Peggy got up from the bed and later came back towards my room. When I entered my room I went to the dresser drawer and got my gun. Peggy was not in the hallway near my room. I walked over towards her and there we quarreled some. She there made a grab for me and as she did so, I had my gun in my hand and shot her, firing two shots. I know that one of the shots struck her but do not know about the second shot. After she was shot she ran out in the hall. I do not know where. I then went to my room and called up my brother, Thomas Ball. I told him I was in trouble and that I had shot a woman. About this time police officer came in and arrested me. I was then taken to No., 6 police station, where I made this statement to J. M. Elder of the prosecutor's office.

"This statement which I am now making at No. 6 station is the truth, no promises or threats being made to me while making this statement. [Signed] Reuben E. Ball."

1. Appellant complains of error in the overruling of his motion to quash the indictment for the reason, as alleged in his brief, that the names of the witnesses were not indorsed on the copy of the indictment furnished him at the time of the arraignment. This assignment cannot be considered because the motion to quash is not set out, either in the record proper or in the bill of exceptions.

2. The court instructed the jury on murder in the first and second degrees. Appellant complains of instruction 9 on selfdefense, which reads:

"The court instructs the jury that if you find and believe from the evidence that at the time the wound was inflicted from which the deceased, Lucille Parsons, alias Peggy Morris, alias Peggy Parsons, died, that the deceased, Lucille Parsons, alias Peggy Morris, alias Peggy Parsons, whether alone or acting in concert with other persons, attempted to assault the defendant, and that it then and there reasonably appeared to the defendant that he was in imminent danger of being wounded or of receiving great personal injury at the hands of the deceased, Lucille Parsons, alias Peggy Morris, alias Peggy Parsons, and other persons acting in concert with her, and that the defendant fired the fatal shot in the protection of his person while he was under the impression that he was in imminent danger of being murdered or of receiving some serious injury to himself, then, if you so believe, you will find the defendant not guilty. But you cannot acquit the defendant on the ground of self-defense unless the defendant actually believed his life was in danger at the time the shot was fired which killed the deceased."

The court added to the instruction the italicized clause. It unreasonably and improperly restricted the right of self-defense, as defined in 21 Cyc. 814:

"In order to justify or excuse homicide in self-defense, it is not necessary that deceased shall have made an actual attack on defendant, if the circumstances showed or raised a reasonable apprehension that he was about to do so. But it is necessary that he shall have indicated by some act or demonstration at the time of the killing a real or apparent intention to kill or inflict great bodily harm upon the defendant and thereby induce the latter to reasonably believe that it was necessary to kill to save himself."

In State v. Matthews, 148 Mo. 185, 193, 49 S. W. 1085, 1086 (71 Am. St. Rep. 594), Judge Sherwood said:

"Relative to the question of self-defense, instruction 17 exhibits the insignia of that heresy which has so warped the first law of nature' in this state that the original commentator thereon would not know that subject were he to encounter it in his pathway. In the first place, it is not generally true that the right of self-defense does not imply the right of attack.' This is something which depends upon the circumstances of each individual case. A person about to be attacked is not bound to wait until his adversary gets `the drop on him' or `draws a bead on him,' to use familiar but significant expressions, before he takes...