State v. Barr

Decision Date07 January 1935
Citation78 S.W.2d 104,336 Mo. 300
PartiesThp State v. Dudley Barr, Appellant
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court; Hon. T. J. Seehorn Judge.

Reversed and remanded.

Roy N. DeVault and Henry Arthur for appellant.

Roy McKittrick, Attorney-General, and Wm. W Barnes, Assistant Attorney-General, for respondent.

(1) Each assignment of error in appellant's motion for new trial, except No. 6, is too general to present anything for review here. State v. Aguelera, 326 Mo. 1213; State v. Austin, 29 S.W.2d 6; State v Ryan, 50 S.W.2d 1000. (2) Appellant's assignment No. 6 was waived. State v. Decker, 22 S.W.2d 961; State v. Meadows, 51 S.W.2d 1036; State v. Sanders, 4 S.W.2d 815. (3) The appellant failed to properly save an exception to argument of counsel for State. State v. Adams, 318 Mo. 723; State v. Keller, 281 S.W. 962; State v. Salisbury, 43 S.W.2d 924. (4) Instruction 2 given by the court properly declares the law as to drunkenness as a defense. State v. McCann, 329 Mo. 765; State v. West, 157 Mo. 318; State v. Woodward, 191 Mo. 634.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION
BOHLING

Dudley Barr was convicted in the Circuit Court of Jackson County of the murder, in the first degree, of Walter Milton, and prosecutes this appeal as a poor person.

The State's evidence: One George Kondos operated the "Flying Cloud Policy Wheel," patronized by colored people at Twelfth and Lydia Streets, Kansas City, Missouri. The wheel was "pulled" every evening at six o'clock. A number of people had arrived there for the drawing on December 14, 1932, when, about six o'clock appellant, who was unmasked, and a masked companion, each armed with and flourishing a gun, entered the place. Appellant, who was the spokesman, put his gun on the doorman, marched him into the place and announced: "This is a holdup," and demanded money. During the progress of the holdup, appellant made threats to kill; and stated: "I haven't killed a man since 1927." He shot his gun into the floor, and remarked: "This goes to show you that this is no toy;" and then reloaded. He took money and a watch from Kondos; and upon Kondos telling him he had no more money, appellant, striking Kondos and making him open his mouth, stuck the gun in his mouth and threatened to kill him. Thereupon, according to Kondos, someone gave appellant more money. He also put his gun on another and relieved him of his watch and money. Appellant inquired: "Who in here would know me, would identify me?" Seeing Walter Milton, appellant said: "You can identify me. I am going to kill you." Milton replied: "No, no, man, I won't identify you; don't kill me." Appellant had the gun close to Milton's face and Milton pushed it away. Appellant then shot Milton, who fell to the floor; after which appellant shot Milton twice. Milton died immediately. Appellant was identified by several of the State's witnesses.

The defense was an alibi. Evidence on behalf of appellant, as to his whereabouts and condition at the time involved, was to the effect that appellant and some companions had been drinking on the afternoon in question (appellant stating that one of the last drinks went to his head like dope); that appellant had become inebriated to the point of helplessness; that most of this drinking took place at a barbecue stand next door to where appellant lived; that appellant staggered and had to be supported by his companions while at the barbecue stand, and at five P. M., or thereabouts, with a companion on either side of him, he was assisted into the back seat of a taxi, the operator finally taking him and three others to Twelfth and Lydia; that after appellant entered the taxi, he started to take another drink and one of his companions said "take the bottle away from him;" and that appellant then laid back in the seat of the car. Appellant testified he does not remember anything from that time until about three o'clock the next morning. There was testimony that at Twelfth and Lydia appellant's companions (or some of them) got out of the taxi and were gone for ten or fifteen minutes, and during that time appellant was in the taxi in a practically helpless condition. After appellant's companions returned, the taxi drove to the barbecue stand and they carried appellant out of the car and up to his room.

The State contends and the appellant (in one of his briefs on file) concedes that the general assignments of error in the motion for new trial with reference to the admission and rejection of evidence and the giving of instructions are too general to preserve anything for review. [Sec. 3735, R. S. 1929, Mo. Stat. Ann., p. 3275; State v. Standifer, 316 Mo. 49, 54, 289 S.W. 856; State v. Boesel, 64 S.W.2d l. c. 246; State v. Smith, 329 Mo. l. c. 281, 44 S.W.2d l. c. 49; State v. Aguelera, 326 Mo. l. c. 1215, 33 S.W.2d 901; State v. Tharp, 334 Mo. 46, 64 S.W.2d l. c. 253.]

Error is also assigned in the overruling of the demurrer to the evidence at the close of the State's case. This was waived by appellant offering evidence in his behalf. [State v. Decker, 326 Mo. 946, 33 S.W.2d l. c. 961; State v. Meadows, 330 Mo. 1020, 51 S.W.2d l. c. 1036; State v. Sanders (Mo.), 4 S.W.2d l. c. 815.]

Appellant likewise concedes that failure to except to the action of the trial court renders the assignment of error with reference to the argument of the State's attorney ineffective. [State v. Painter, 329 Mo. 314, 322, 44 S.W.2d 79; State v. Sherry (Mo.), 64 S.W.2d 239; State v. Nasello, 325 Mo. 442, 469, 30 S.W.2d 132; State v. Harmon (Mo.), 296 S.W. 391.]

Appellant contends that the court erred in giving Instruction No. 2 for the reason that said instruction deprived the jury of considering a part of defendant's defense. The instruction reads:

"The court instructs the jury that in making up their verdict they will entirely disregard defendant being drunk, and that drunkenness cannot be pleaded in excuse, mitigation or defense of any crime."

Such has been held a proper statement of the law in Missouri where drunkenness is pleaded in excuse, mitigation or justification of crime. [State v. Sneed, 88 Mo. l. c. 140; State v. Pitts, 58 Mo. l. c. 558; State v. Carter, 98 Mo. l. c. 181, 11 S.W. 624; State v. West, 157 Mo. l. c. 318, 57 S.W. 1071; State v. Woodward, 191 Mo. l. c. 634, 90 S.W. 90; State v. McCann, 329 Mo. l. c. 765, 47 S.W.2d 32; State v. O'Reilly, 126 Mo. l. c. 604, 29 S.W. 577.] In the instant case, however, appellant denies his guilt. He admits no overt act, which he seeks to excuse, or mitigate, or justify on account of drunkenness. The defense is an alibi. Collateral thereto and in support thereof defendant had evidence to the effect that he was drunk to the point of helplessness. Any evidence tending to prove or disprove the truth of an alibi is relevant (State v. Harris, 334 Mo. 38, 64 S.W.2d l. c. 258; Underhill's Crim. Ev. (2 Ed.), sec. 247; 16 C. J., p. 558, sec. 1083); such as testimony showing a witness received a post card from defendant postmarked at Cleveland, Ohio (State v. Albritton, 328 Mo. 349, 364, 40 S.W.2d 676), or an original receipt and account book tending to establish accused's presence in Cedar Rapids, Iowa (State v. Harris, supra), as of the day the crime involved was committed in Missouri; or, upon the State's witnesses testifying that accused was in company with a named person at a certain time and place, testimony that such named person was at the time in question several miles distant (State v. Earnest, 70 Mo. 520, 522), or that accused was seen in a certain saloon drinking at a time he claimed to be elsewhere (McCue v. State, 75 Tex. Cr. Rep. 137, 170 S.W. 280, Ann. Cas. 1918C, 674), or the subject matter of a conversation accused had with a party he claimed to be with at the time of the crime. [State v. Harmon (Mo.), 296 S.W. 391, l. c. 395.] In Ingalls v. State, 48 Wis. l. c. 651, 4 N.W. 785, the court excluded evidence of defendant's intoxicated condition, the defendant desiring to show that he was so inebriated as to be physically and mentally incapable of committing the crime charged. The court said:

"If a man by voluntary drunkenness renders himself incapable of walking for a limited time, it is just as competent evidence tending to show that he did not walk during the time he was so incapable, as though he had been so rendered incapable by paralysis of his limbs from some cause over which he had no control."

In State v. Buxton, 324 Mo. 78, 22 S.W.2d 635, this court had before it an instruction to the effect, in so far as here material, that it made no difference whether defendant was drunk in any degree or not at the time of the commission of the offense, if the jury found he did commit it, and that they should not take the fact of drunkenness into account as a mitigation or extenuation of the alleged offense. The defense was an alibi. Defendant testified...

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