State v. Benson

• Decision Date: 03 July 1940
• Docket Number: 36962
• Citation: 142 S.W.2d 52,346 Mo. 497
• Parties: The State v. Frank Benson, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 52

346 Mo. 497

The State v. Frank Benson, Appellant

No. 36962

Supreme Court of Missouri

July 3, 1940

Appeal from Nodaway Circuit Court; Hon. Ellis Beavers Judge

Reversed and remanded.

Charles R. Bell and Ellis G. Cook for appellant.

The error was not cured by Instruction 7 given at the court's own instance. State v. Minor, 193 Mo. 613; State v. Thomas, 99 Mo. 257; State v. Hopper, 71 Mo 429; State v. Kuehner, 93 Mo. 193.

Roy McKittrick, Attorney General, and Lawrence L Bradley, Assistant Attorney General, for respondent.

(1) The information in this case is in proper form and sufficiently apprises appellant of the charge made against him. State v. Kenyon, 126 S.W.2d 245; State v. Goodwin, 333 Mo. 168, 61 S.W.2d 960; State v. Long, 253 S.W. 729. (2) The verdict of the jury is in proper form and is responsive to the information. State v. Majors, 329 Mo. 148, 44 S.W.2d 163; State v. Johnson, 26 S.W.2d 793. (3) The court did not err in admitting the statements of the witness Bockelman concerning where and how appellant received the gun shot wound in his neck and the statements concerning what had been told Bob Garten by the deceased. State v. Johnson, 252 S.W. 623; State v. Pack, 322 Mo. 69, 16 S.W.2d 30; 1 Wharton's Criminal Evidence, p. 685, sec. 437; 20 Am. Jur., p. 491, sec. 585; State v. Sansone, 116 Mo. 1; Commonwealth v. Marshall, 135 A. 301; White v. State, 285 P. 503; 1 Wharton's Criminal Evidence, p. 839, sec. 527; State v. Johnson, 118 Mo. 491; State v. Robinson, 130 S.W.2d 530; State v. Martin, 229 Mo. 620, 129 S.W. 881; State v. Tatum, 264 Mo. 357, 175 S.W. 69.

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

OPINION

WESTHUES

Appellant Benson was convicted in the circuit court of Nodaway county, Missouri, of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of of twenty-five years. From the sentence he duly appealed.

The offense was alleged to have been committed on May 22, 1934. A detailed statement of the facts surrounding the homicide may be found in State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642. Hamilton was convicted of being an accessory after the fact. He was charged with aiding appellant Benson in his escape immediately after the homicide. Hamilton's conviction was affirmed. Benson was later apprehended in the State of California and returned to Nodaway county for trial.

Hamilton and his three small children lived on a farm a short distance south of Maryville. The house on this farm was divided into two rooms by an unfinished partition. There was also a smokehouse on the premises. Other buildings thereon need not be mentioned. In the early part of May, 1934, appellant Benson, deceased, Larry Hays and Mrs. Bockelman came to the Hamilton farm and remained until the day of the homicide. After these parties arrived Benson and Hamilton slept in the smokehouse while Hays, Mrs. Bockelman and the children slept in the house. The State introduced evidence that while Benson and Hays were at the Hamilton home they made various journeys at night. This was emphatically denied by Benson. He testified that he did not go on these trips and was at the Hamilton home only three days. On the evening of May 21, Benson and Hays left in Hamilton's car. They returned about 3:00 or 4:00 A. M., May 22. Hays awakened Hamilton, who was in the smokehouse, and informed him Benson had been shot. They went to the house where some water was heated and attempted to treat Benson's gunshot wound, which was located in the back of his neck. It was suggested that a doctor be called, whereupon Hays and Mrs. Bockelman left in a car for that purpose. They returned in about an hour, stating that they were unable to find a doctor. This trip of Mrs. Bockelman and Hays must be kept in mind, because the only point briefed by appellant pertains to a conversation had between Mrs. Bockelman and Hays while they were looking for a doctor. After this unsuccessful trip for aid Hamilton took Benson to Maryville to a doctor who dressed the wound. When Hamilton and Benson returned Hays and Mrs. Bockelman had retired, but were awakened by Hamilton and Benson who partook of a few drinks in the adjoining room. Hays inquired if they had seen a doctor and if the bullet had been removed. He was informed that they had seen a doctor but that the bullet was not found. It was then about 7:00 A. M.

Hamilton went about the place to do his chores and Benson went to the smokehouse to sleep. Within a few minutes Hamilton heard a shot and a woman screaming. He ran to the house where Mrs. Bockelman informed him that Hays had been shot and was dead. Hamilton testified at this trial and his evidence was about the same as it was at his own trial. He testified that Benson had a revolver in his hand and said:

"Get me out of here. I shot the dirty rat. He didn't shoot me accidentally and I didn't shoot him accidentally." Hamilton took Benson to Hopkins where he left him and then notified the officers. Mrs. Bockelman testified that Benson came into the room while Hays was sound asleep; that she was dozing but knew what was going on; that Benson said something about cigarettes, then came to the bed and shot Hays through the head while he was sleeping; that he, Benson, said to the witness:

"Look at the back of my neck -- dig a hole and bury him in it. I am on my way."

The evidence of Hamilton and Mrs. Bockelman was sufficient to sustain a conviction of murder.

Benson pleaded self-defense. He denied making the statements with reference to the shooting as related by Mrs. Bockelman and Hamilton. He testified that on May 21, Hamilton informed him that Hays had said that the first time he, Hays, saw Benson talking to Mrs. Bockelman he was going to shoot Benson, and Hamilton advised him to leave; that he then gathered his clothing and started to leave but Hays persuaded him to stay. He further testified that that evening he and Hays went to St. Joseph, and on the return trip, while Hays was riding in the back seat, he, Benson, heard a shot and felt a blow on the back of his neck; that Hays drove the car the balance of the return trip to Hamilton's; that this was the only time he had ever been with Hays in a car at night. He testified that Hays and Mrs. Bockelman had two .45 caliber automatic pistols; that Hays had one of these guns on the trip to St. Joseph; that after he, Benson, had been shot Hays claimed that the gun was accidentally discharged. Benson further testified that he had bought some cigarettes on his visit to the doctor and had left them on the trunk near the bed where Hays and Mrs. Bockelman slept; that he returned from the smokehouse for the purpose of getting these cigarettes; that he then noticed one of the guns and some other articles lying on the trunk. As to what happened immediately prior to the shooting Benson testified as follows:

"Q. . . . Tell the court and jury under what condition and what brought it about that you shot him? A. I was feeling around the things on the trunk. I was trying to find his package of cigarettes. While I was doing that Larry Hays rose up in the bed and said, 'you snooping, s of a b . I didn't kill you the other time, I will now.' He reached to the window, picked up the gun and I reached down, grabbed a gun off the trunk and shot Larry Hays.

"Q. Why did you do it? A. Because I was fearful he would shoot me again.

"Q. Were you fearful you would receive bodily injury and possibly death? A. Yes, sir.

"Q. What position was he in when he got the gun? A. He was in a sitting position."

The evidence disclosed that the bullet passed through Hays' head and struck the wall. The pillow and mattress bore no marks or evidence of having been touched by the bullet. If the evidence of Benson be true the homicide was justifiable on the ground of self-defense.

The State in its evidence in chief was permitted to introduce in evidence, over defendant's objection, the substance of a conversation which was alleged to have occurred between Hays and Mrs. Bockelman while they were in search of a doctor to treat Benson's gunshot wound. This conversation had reference to how Benson had been shot. Mrs. Bockelman was asked if Hays told her how Benson received the bullet wound in his neck, and the witness replied:

"He said they were quite a ways from the Hamilton home and prowling a garage and Benson got shot and Benson said 'go away and let me stay here' and he pulled him in the car and...