State v. Batson

• Decision Date: 20 August 1936
• Docket Number: No. 34719.,34719.
• Citation: 96 S.W.2d 384
• Parties: THE STATE v. RAYMOND BATSON, Appellant.
• Court: Missouri Supreme Court

96 S.W.2d 384

THE STATE v. RAYMOND BATSON, Appellant.

No. 34719.

Supreme Court of Missouri.

Division Two, August 20, 1936.

Appeal from Circuit Court of City of St. Louis. — Hon. John A. Witthaus, Judge.

REVERSED AND REMANDED.

Freeman L. Martin for appellant.

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

(1) Points 1 and 2 raised in motion for new trial are not sufficiently specific to raise the points on appeal. State v. Francis, 52 S.W. (2d) 554; State v. Barbata, 80 S.W. (2d) 875. (2) Point 3 in merely alleging error in giving instructions asked by the State, without designating or pointing out any specific objection, is insufficient basis for review. State v. Bradford, 285 S.W. 498. (3) The court did not err in failing to instruct the jury on the law of murder in the second degree and manslaughter as raised in Point 6 of the motion for a new trial. State v. Adams, 19 S.W. (2d) 675; State v. Moore, 235 S.W. 1058. (4) The court did not err in failing to instruct the jury on the law of self-defense as raised by defendant in Points 7 and 8 of the motion for a new trial. State v. Stallings, 33 S.W. (2d) 916; State v. Cushenberry, 56 S.W. 743; 30 C.J. 88, sec. 271; 13 R.C.L. 746, sec. 50; Michie on Homicide, sec. 111, p. 334.

ELLISON, J.

The appellant, a negro, appeals as a poor person from a conviction of murder in the first degree in the Circuit Court of St. Louis County. He was charged by information with shooting and killing Dr. William Edward Poole, and the jury fixed the punishment at death. No brief has been filed here in his behalf. His motion for new trial in the court below complains: that there was no substantial evidence to support the verdict; of the giving and refusal of instructions; and of the overruling of appellant's challenge to one of the jury panel.

The appellant stood on his demurrer to the State's evidence and did not testify or call any witnesses in his behalf. The evidence for the State showed the following. About the middle of December, 1934, a misdemeanor case charging the appellant's wife, Luella Batson, with disturbance of the peace was pending in the court of Philip Rabenau, justice of the peace at Kirkwood for Bonhomme township, St. Louis County. It seems she had been convicted and was having some difficulty in arranging for a recognizance in connection with her appeal. At any rate, Mr. John H. McNatt, first assistant prosecuting attorney of St. Louis County testified that he had a conversation with the appellant about two weeks later on December 28, 1934, sometime after eleven o'clock A.M., in the circuit court room of Judge McElhinney at Clayton, the county seat, during lulls or intermissions in the trial of another case in that court, in which conversation the appellant stated Justice Rabenau would not grant his wife an appeal in her case because she was unable to make bond. The prosecutor showed him a transcript of the proceedings in the case and directed his attention to a recognizance therein purporting to have been signed by him (the appellant) before Justice Rabenau. The appellant declared it was a forgery and left immediately.

Within about an hour he appeared at the door of the office of Justice Rabenau in Kirkwood with pistol in hand, and after repeating twice "you forged my name at Clayton," shot Rabenau four times in the back as the justice sat at his desk about four feet from the door, death resulting instantly. Dr. William Edward Poole, a dentist of Kirkwood, was on the other side of the room twelve feet away and in line with him was deputy Constable Jack Nece, who charged toward the appellant (but without drawing his revolver) whereupon the latter turned and fired at him. Nece lunged to one side and the bullet evidently must have struck Dr. Poole, as it was the only shot in his direction and the others were accounted for. The appellant shot once or twice more and backed out the door. Nece followed but did not fire his revolver until he was outside the office. They exchanged several shots, each receiving a wound, and the appellant fled to his home where the police by the use of a gas bomb forced him to surrender. He had on his person two pistols, one being the weapon used by him in the shooting, and a buckskin sack containing perhaps a hundred cartridges.

The foregoing account of the homicide shooting is taken from the testimony of Constable Nece. There were three other surviving persons in Justice Rabenau's office at the time: Miss Schmidt, a stenographer; George Booth, another justice of the peace of the township; and Richard James, marshal of Valley Park in the same township. Miss Schmidt was unable to give many details of the shooting. The testimony of Justice Booth and Marshal James was substantially in accord with that of Mr. Nece, except that James thought the appellant fired twice, instead of once, at Nece, when the latter first advanced toward him; and the witnesses did not agree upon the exact words the appellant used when he came to the office door and charged Justice Rabenau with having forged his name.

It will be remembered that the prosecution in this case was not for the killing of Justice Rabenau, but for the killing of Dr. Poole. Nece testified that when he returned from his pursuit of the appellant to the justice's office Dr. Poole was lying or leaning prostrate with his head on a table, and appeared to be in great pain. His clothes had been parted and a perforation in his stomach could be seen just below the navel. Marshal James testified that the doctor groaned and that he tore his shirt open and saw a bullet wound right in the middle of his stomach. James called an ambulance. Dr. Poole died the next day, December 29. The information charges he died in the city of St. Louis (which is not in the county of St. Louis).

Dr. Thomas C. St. John, coroner's physician for the city of St. Louis, testified that he performed an autopsy on the body of Dr. Poole on December 31, 1934, at the Jewish Hospital morgue in St. Louis, and found what appeared to be a bullet wound "just to the right of the mid-line, in the upper half of the belly." There was also an operative scar or wound about eight inches long in the mid-belly and an operative stab wound with a drain in the abdomen. These latter, he said, had been made by a surgeon in some operation. From his examination he concluded the cause of death was a massive collapse of the lungs, and contributing causes were shock and hemorrhage, pleura effusion and peritonitis. The lung collapse was caused by the bullet wound, in his opinion. No bullet was found. Dr. Louis L. Turreen, a coroner's physician of St. Louis County, attended the autopsy. He said the bullet wound passed through the large bowel of the transverse colon and through the stomach and diaphragm, penetrating the chest. In his opinion death was due to pulmonary collapse due to the bullet's penetrating the abdomen and chest. He stated the bullet emerged from the body.

Appellant's counsel recalled Prosecutor McNutt for further cross-examination and proved by him that on the occasion when he had the conversation with the appellant during the trial of a case in Judge McElhinney's court on the morning of December 28, the appellant contradicted one of the attorneys trying the case by speaking out loud, saying, "That isn't true." Judge McElhinney reprimanded him and told him to be quiet, and he obeyed.

At the close of the State's case the appellant offered an instruction in the nature of a demurrer to the evidence, which the court refused. The appellant then rested.

[1] I. From the foregoing it is apparent the appellant's assignment that the verdict was not supported by substantial evidence is groundless. But the motion for new trial also complains of the refusal of its instruction in the nature of a demurrer to the State's evidence, so we shall notice the specific assignments therein. One point made is that the State failed to prove Dr. Poole died within the territorial jurisdiction of the trial court, that is to say, in St. Louis County, but did show, or tend to show, he died outside of that jurisdiction in the city of St. Louis, and that the information so alleges. This does not help the appellant. The prosecution in the county where the fatal wound was inflicted, was entirely proper. [Sec. 3380, R.S. 1929, Mo. Stat. Ann., p. 3075; State v. Blunt, 110 Mo. 322, 337 et seq., 19 S.W. 650, 654 et seq.; State v. May, 142 Mo. 135, 151, 43 S.W. 637, 641.]

The demurrer also contends the State's evidence fails to connect the appellant with the shooting of the deceased, or to show the bullet which struck deceased came from the appellant's pistol. This contention is entirely erroneous. The uncontradicted evidence shows the appellant shot in the direction of Dr. Poole; that the latter collapsed very soon afterward, and that the only other shots fired came from the revolver of Constable Nece, who did not use his weapon until after he had got out of the office and was pursuing the appellant in another direction.

It is also assigned that the State's evidence was insufficient to show the cause of Dr. Poole's death, in that no testimony was produced from the physician who first treated him after the shooting. It is true the State did not show what doctors attended Dr. Poole between the time of the shooting and his death, and did not produce them as witnesses or account for their absence, but it does not follow from this that there was no substantial evidence as to the cause of his death. Messrs. Nece and James testified he was shot in the stomach and the two coroner's physicians who performed the autopsy said that bullet would cause his death.

II. Assignment 3 in the motion for new trial charged generally that the court erred in giving the instructions asked by the State, and then copied them in full. But the assignment failed to state any reasons why the instructions were wrong, or to...