State v. Burnett

• Decision Date: 11 June 1945
• Docket Number: 39293
• Citation: 188 S.W.2d 51,354 Mo. 45
• Parties: State v. H. H. Burnett, Appellant
• Court: Missouri Supreme Court

188 S.W.2d 51

354 Mo. 45

State v. H. H. Burnett, Appellant

No. 39293

Supreme Court of Missouri

June 11, 1945

Appeal from Mississippi Circuit Court; Hon. James C McDowell, Judge.

Reversed and remanded.

Claude F. Cooper and J. M. Haw for appellant; T J. Crowder of counsel.

(1) The evidence in this case is not legally sufficient to sustain a conviction of murder in the second degree. (2) The defendant requested several instructions on material issues which were by the court refused. It is the duty of the court to instruct the jury on all material issues and an offered instruction erroneous as to form is a sufficient request for a correct instruction on the issue. State v. Matthews, 20 Mo 55; State v. Jones, 61 Mo. 232; State v. McKenzie, 228 Mo. 385; State v. Jurnee, 309 Mo. 6. (3) The defendant would be justified in using sufficient force to repel an assault by the deceased, either upon his wife or son or himself, and, if necessary, had a right to shoot and kill the deceased. Sec. 4379, R.S. 1939; State v. Custer, 336 Mo. 514, 80 S.W.2d 176; State v. Dollarhide, 337 Mo. 962, 87 S.W.2d 156. (4) The deceased, although a peace officer, had no lawful authority to arrest Gene Burnett and in attempting to do so under the circumstances he became a trespasser. Under these circumstances, the defendant had a lawful right to eject the deceased and if necessary to use force commensurate with the apparent necessity. Greaves v. K.C. Junior Orpheum Co., 229 Mo.App. 663, 80 S.W.2d 228; Wehmeyer v. Mulvihill, 150 Mo.App. 197, 130 S.W. 681; State ex rel. Patterson v. Collins, 172 S.W.2d 284.

J. E. Taylor, Attorney General, and A. V. Owsley, Assistant Attorney General, for respondent.

(1) There is substantial evidence to sustain a conviction. Sec. 4377, R.S. 1939; State v. Hogan, 177 S.W.2d 465; State v. Page, 130 S.W.2d 520; State v. Majors, 329 Mo. 148, 44 S.W.2d 163. (2) The court did not err in refusing defendant's instructions; the converse of the State's main instruction was sufficiently submitted. State v. Messino, 325 Mo. 743, 30 S.W.2d 750; State v. Dougherty, 287 Mo. 82, 228 S.W. 786. (3) The jury found that the appellant had used too much force in repelling or evicting the deceased. State v. Reed, 154 Mo. 122, 55 S.W. 278; State v. Partlow, 90 Mo. 608, 4 S.W. 14. (4) The appellant used too much force commensurate with the apparent necessity. State v. Holcomb, 86 Mo. 371; Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97; State v. Johnson, 76 Mo. 121.

OPINION

Tipton, J.

An information was filed in the circuit court of New Madrid County, Missouri, charging the appellant, his wife, Susie Burnett, and his son, Gene Burnett, with murder in the first degree for having killed Hughey Kitchen, the town marshal of Parma, Missouri. An application for a change of venue was sustained, and the cause was sent to the circuit court of Mississippi County. A severance was granted and on appellant's trial, he was found guilty of murder in the second degree. His punishment was assessed at imprisonment in the State Penitentiary for a term of fourteen years.

Appellant's first contention is that the evidence is insufficient to sustain the verdict of the jury. This calls for a review of the evidence. In appellant's testimony, he admitted the shooting and killing of the deceased, but pleaded justification in so doing.

The evidence most favorable to the State is as follows: The deceased was killed in the appellant's restaurant in the town of Parma, Missouri, late in the afternoon of Saturday, April 17, 1943. On the day of the killing, the deceased, who was the town marshal, was leaving the pool hall next door to appellant's place of business. Gene Burnett and his mother, Susie Burnett, were sitting in the back room of the restaurant and the windows were open. Some remark was made by Gene Burnett loud enough for deceased to hear. The deceased asked Gene if he were talking to him. Gene said he was not, but was talking to his mother. Gene said something else to his mother, whereupon the deceased turned and said, "You are talking to me too." Gene said, "No, I'm not. I am talking to my mother." Deceased entered the room and undertook to arrest Gene. Gene told him that he had done nothing, and would not go. Deceased then said, "I'll go to the City Hall and come back, and I'll take you dead or alive."

Otho Gee, a witness for the State, testified as follows: "A. Well, I was standing by a post and he [deceased] called me over, said, 'Come here,' and he met me about middleways of the street and asked me if I had a blackjack, he was going to deputize me. I told him no. He said we would go by the city hall and see if we could find one; he looked and couldn't find one and said, 'We'll go anyway,' and we crossed over and went to Mr. Burnett's restaurant. When we got to the front door he opened the door and turned and said, 'You are sworn in to the full extent of the law.'" (Italics ours.)

The witness and deceased then went to the kitchen, which was in the rear of the restaurant. In the kitchen were Mrs. Evans, the cook, Mrs. Susie Burnett, and Gene Burnett. The appellant followed the deceased and witness into the kitchen. Mr. Gee further testified: "A. Well, Gene was sitting behind a cook table. Hughie said, 'We are going to arrest you.' He said, 'No, I ain't going.' He told me to go to the end of the table, and I started around and Gene got up and said, 'He ain't big enough to take me,' and Hughie jerked his gun, and Mrs. Burnett said, 'Don't do that.' Hughie said, 'I'm not going to hurt him,' then she said to Gene, 'Go ahead and go with him,' and he put his gun back in his pocket. They started out and Gene said, 'Let me have my coat.' Mr. Kitchens said, 'You don't need a coat, we're going over to the city hall,' and they got to scuffling and Hughie pulled out a blackjack, and Gene reached up to get his coat and Hughie gave him a jerk, and he grabbed him."

After Gene Burnett grabbed the deceased, and while they were scuffling, the appellant shot deceased. Mr. Gee then testified: "A. Well, when he stepped in to fire the second shot, Hughie grabbed Mr. Burnett's gun and hollered to me to get the gun. I started to step in to get the gun and seen Gene's hand on Hughie's gun -- either Gene's hand on Hughie's gun and Hughie's hand on his hand, or Hughie's hand on the gun and Gene's hand on his hand, I couldn't tell which hand was which, and he drawed back as if to hit me and I pulls Gene against the wall and Mrs. Burnett grabbed me, and the second shot was fired."

On cross-examination, this witness testified that deceased never told him or Gene Burnett what he was arresting Gene for; that he did not state that he had a warrant for his arrest; and that all deceased told Gene was, "Come and go with us, you are under arrest."

"A. Well, Gene said, 'I'm not going,' and he told me to go around the end of the table; Gene got up and said, 'He ain't big enough to take me,' and drawed back to hit me, and Hughie jerked his gun out."

When deceased drew the gun on Gene, they were three or four feet apart. The witness, also, testified that when they first went into the kitchen, deceased "kind of pushed" Mrs. Susie Burnett back.

There was, also, testimony to the effect that just prior to the time the first shot was fired, deceased had a blackjack in his right hand.

Other witnesses testified they came into the restaurant about the time the first shot was fired and they observed no threatening or abusive conduct by deceased toward appellant, his wife, or son.

W. M. Tucker testified that prior to the date deceased was killed, he was in appellant's restaurant when deceased passed by and said, "There goes Hughie Kitchens." The appellant replied, "Yes, sir, that's a dirty son-of-a-bitch; if he ever sets foot inside my building to get people like he did in other people's, he'll go out of here a dead man." Several other witnesses testified to similar statements made by appellant.

Appellant's and his witnesses' testimony showed that appellant killed deceased in self-defense and in resisting the arrest of his son, Gene, and that appellant was barely acquainted with deceased and had no ill feeling toward him.

There was no evidence in this record that shows why deceased was attempting to arrest Gene Burnett or that he had ever committed any crime or that he was ever suspected of committing a crime.

Appellant contends that ...