State v. Bundy

• Decision Date: 01 December 1931
• Docket Number: No. 31352.,31352.
• Citation: 44 S.W.2d 121
• Parties: STATE v. BUNDY.
• Court: Missouri Supreme Court

44 S.W.2d 121

STATE v. BUNDY.

No. 31352.

Supreme Court of Missouri, Division No. 2.

December 1, 1931.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

Alberta Bundy was convicted of second degree murder, and she appeals.

Affirmed.

J. H. Whitecotton and Oliver W. Nolen, both of Paris, for appellant.

Stratton Shartel, Atty. Gen., and E. G. Robison, Asst. Atty. Gen., for the State.

WESTHUES, C.

The prosecuting attorney of Randolph county, Mo., filed a verified information in the circuit court charging the defendant with murder in the second degree, in that, on the 13th day of February, 1930, she stabbed and killed her husband, Charles Bundy. Defendant was formally arraigned, and entered a plea of not guilty. The trial of the case resulted in a conviction of defendant of murder in the second degree. The punishment assessed was ten years in the penitentiary. Defendant filed a motion for a new trial which was overruled by the court, and defendant sentenced. From this judgment, she appealed.

The testimony, which is undisputed except as to what transpired immediately prior to the fatal encounter, reveals the following: The defendant and deceased, both negroes, were married in the year 1924. Since then they had lived together most of the time, but their married life was not a happy one. The deceased, according to many witnesses, had abused and assaulted defendant on a number of occasions. About three months prior to the killing, defendant had undergone an operation for appendicitis. Shortly after the operation defendant went to her mother's home in Paris, Mo. On February 12, she returned to Moberly, according to defendant's testimony, for the purpose of seeing her husband and persuading him to live with her and support her, since she was unable to work, due to her weakness resulting from her operation. She secured a room for the night at the home of one Missy Brown. That evening she went in search of her husband and found him at a dance hall where a dance was in progress. Defendant did not speak to her husband at this dance hall. Later deceased and a number of others went to the home of Jose Collins, where a number of colored people had gathered and were having music and dancing. Defendant followed deceased to the Collin's home. While there, and shortly after midnight, one Annabella Brown left the room and went out on the porch, and was followed by Charles Bundy, the deceased. Defendant went out on the porch and found her husband talking to Annabella. There is a sharp conflict in the testimony as to what happened at this point. According to the state's evidence, defendant immediately spoke to the deceased saying: "What does this mean?" or something to that effect. Deceased started down the steps, and defendant pushed him and he fell. The defendant then followed him. While deceased was getting up, he stated to the defendant that she had a knife or a razor. Defendant then struck deceased with the knife. The blade penetrated the heart, and death followed within a few minutes. A number of the state's witnesses testified that immediately after deceased had been struck with the knife he said: "Alberta you have cut me and I don't see why you cut me for." Then defendant went up the street. Defendant's version of the affair is as follows:

"Q. Was your husband there? A. Yes, sir, he was standing with a bunch of boys drinking.

"Q. Did you talk with him any while he was there? A. No, sir, I didn't have a chance to talk with him. I was sitting there until I had a chance to talk with him, and he came out of the other room onto the porch and I thought I would have a chance to talk to him by himself, so I went behind him; and when I went out there was some girl there sitting on the porch and he was standing talking to her, and I told him I wanted to talk to him; he didn't seem to understand what I said, so I took hold of his coat like this (indicating) and stepped down on the second step, and I turned him loose — I thought he was coming behind me, and he stumbled or fell one, and when he fell he said, `Dam you, I will fix you.' And he got up and drew his fist back at me and started toward me and I was scared of him — he had been drinking, and I struck up at him with it, but I didn't mean to hurt him at all. I struck up at him just once and got away as quick as I could and went on up the street, because I was scared.

"Q. Where did you go when you went on up the street? A. I went on up to Missy Walker's and went to bed. * * *

"Q. Go ahead and tell us why you struck him there? A. I struck up at him because I was unable to get out of his way quick enough, and I was afraid he would hurt me pretty bad. My side was bothering me. But I didn't try to hurt him. I tried to bluff him to keep him from killing me, because I loved him. I didn't mean to hurt him either."

Defendant further testified that she did not know until the next morning she had hurt the deceased. When she learned he was dead, she immediately went to the police station and gave herself up. The police placed her in jail. A short time later she was taken to the prosecuting attorney, and signed a written statement of what transpired at the time of the killing.

The motion for new trial in this case covers twenty pages of defendant's brief. The errors therein assigned, briefly stated, are as follows: (1) The defendant asserts that the court erred in admitting the testimony as to the statements made by the deceased after the stabbing, not being part of the res gestæ; (2) that the court erred in admitting in evidence, over the objection of the defendant, the written confession of the defendant, for the reason that the same was not voluntarily made; (3) that the prosecuting attorney was permitted, over defendant's objection, to cross-examine defendant upon matters not referred to in her examination in chief; (4) that the court erred in not permitting the defendant to introduce evidence as to the details of the assaults made upon her by deceased prior to the day of the homicide; (5) that the court erred in permitting the state to prove that the general reputation of defendant for morality was bad; (6) that the court erred in not reprimanding counsel for the state for making improper statements during his argument to the jury; (7) that the court erred in giving instructions Nos. S-1 to S-9, inclusive, and in modifying defendant's instruction B.

We will dispose of the assignments in the order stated. The basis of defendant's contention, that the court erred in admitting the evidence as to the statement alleged to have been made by deceased after he had been struck with a knife by defendant, is that the statement, if made, was not made in the presence of defendant, and was not a part of the res gestæ. This contention is without merit: First, the evidence reveals that the statement was directed to defendant, by deceased, immediately after the cutting took place; second, the statement formed a part of the res gestæ. In 30 C. J. page 228, we read: "Where self-defense is set up, any of the declarations of deceased, explanatory of accompanying acts, are admissible in evidence as part of the res gestae." The statement, according to the evidence, was made contemporaneous with the fatal blow, and was spontaneous in character and directly connected with the act of the defendant. The evidence was clearly admissible under the res gestæ rule. State v. Dogherty, 287 Mo. 82, 228 S. W. 786, loc. cit. 787 (3, 4); State v. Kester (Mo. Sup.) 201 S. W. 62, loc. cit. 64 (5); 30 C. J. p. 203, § 432.

Defendant contends that the court erred in permitting the written confession to be offered in evidence. Taking defendant's own testimony on this point as true, we must rule that the confession was properly admitted. Defendant does not testify of any threats or promises, or any intimidations having been made. She testified that she was excited and under arrest, and wanted to be left alone. So far as defendant's testimony is concerned, the statements made by her to the prosecuting attorney, and by him reduced to writing and later signed by defendant, were entirely voluntary. The officers testified that defendant was duly admonished that any statement made would be used against her. Under these circumstances, the confession was properly admitted in evidence. State v. McGuire (Mo. Sup.) 39 S.W.(2d) 523, loc. cit. 525 (5-10), State v. Goode, 271 Mo. 43, 195 S. W. 1006. The fact that the defendant was under arrest at the time does not of itself render the confession involuntary. State v. Hart, 292 Mo. 74, 237 S. W. 473, loc. cit. 477.

It is urged that the court erred in permitting the prosecuting attorney to cross-examine the defendant as to matters not testified to on examination in chief. The defendant testified that deceased had assaulted and beaten her on a number of occasions. The prosecuting attorney was permitted to ask, over defendant's objection, if she reported these assaults to any police officers. This is the only complaint made by defendant on this point in the motion for a new trial. The cross-examination was with reference to a matter testified to on direct examination. Section 3692, Rev. St. Mo. 1929, provides that a defendant may be cross-examined as to any matter referred to in the examination in chief. Defendant testified with reference to the assaults. The prosecuting attorney was therefore authorized, by virtue of the statute referred to, to fully cross-examine defendant with reference thereto. State v. Northington (Mo. Sup.) 268 S. W. 57, loc. cit. 58; State v. Glazebrook (Mo. Sup.) 242 S. W. 928; State v. Pool, 314 Mo. 673, 285 S. W. 726; State v. Wilson, 321 Mo. 564, 12 S.W.(2d) 445, loc. cit. 446 (2).

Defendant next urges that the court erred in not permitting defendant to introduce evidence as to the details of the assaults made upon defendant by deceased prior to the day of the homicide. The court permitted the defense to prove, by a number of witnesses...