State v. Burrell

• Decision Date: 22 May 1923
• Docket Number: No. 23822.,23822.
• Citation: 252 S.W. 709,298 Mo. 672
• Parties: STATE v. BURRELL.
• Court: Missouri Supreme Court

252 S.W. 709

298 Mo. 672

STATE v. BURRELL.

No. 23822.

Supreme Court of Missouri, in Banc.

May 22, 1923.

J. T. Blair, Walker, and Ragland, JJ., dissenting. Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Birdie Burrell was convicted of second degree murder, and she appeals. Reversed and remanded.

S. E. Garner, of St. Louis, for appellant. Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

Statement.

DAVIS, C.

Having been indicted, by a grand jury, for murder in the first degree, and convicted, on July 23, 1921, of murder in the second degree, defendant has appealed from a judgment of the circuit court of the city of St. Louis, fixing her punishment at imprisonment in the penitentiary for a term of 10 years.

The evidence for the state tended to show: That on the 12th day of July, 1921, appellant, a laundress, and Cleveland Burrell, a coal driver, as husband and wife were living at 2607½ Market place in the city of St. Louis, and at about 10 o'clock in the morning on that day were at home. Appellant was washing and hanging up clothes in the back yard, and Cleveland Burrell, the deceased, carried a bucket of water from the second floor of the building, and, immediately after, came into the yard where appellant was hanging up clothes. Appellant and deceased were, as appellant hung up the clothes. "squabbling," and cursing each other. Deceased was heard to say that he was going to pack his trunk and go. Appellant told him to go, that she could get plenty of men like him every day. Deceased retorted: "I left you once and you begged me back." Appellant answered, "Don't start that row." Deceased said: "When I do quit you, you will be dead, and it will take all the police in St. Louis to pull me off you." During the quarrel appellant told deceased that "if he did not go on she would kill him, for she had a gun in her bosom," although the witness did not see a gun in appellant's bosom. Afterwards, witness heard a shot and saw deceased fall out the front door onto the sidewalk with his head turned east. Witness ran downstairs and turned deceased over, and blood was oozing out of his mouth. Before the shooting occurred, deceased went from the yard into the kitchen, and appellant went in a short distance behind him, to wit, 10 or 12 feet. Appellant and deceased had been in the kitchen at least five or eight minutes before the shot was fired. The front steps have four landings. It appeared to witness that deceased was falling from the bottom step to the sidewalk when she saw him. The deceased never made any statement, only said: "Lord, have mercy !" The deceased at that time was not armed. The officer came immediately and arrested appellant. The deceased was taken to City Hospital No. 2 and died in a very short time. On previous occasions witness said she heard appellant tell deceased that he (deceased) was going to make her kill him.

The state's evidence further tended to show that on the morning of the homicide at about 11 o'clock one Charles Alfud, who was at the time a roomer at the Burrell house, was returning to the house, and as he reached the front door he heard Cleveland Burrell, the deceased, say, "Put that away;" at that time the deceased was standing on the steps and appellant inside the house; he did not see a gun; the shot was immediately fired, and the deceased fell; the officer of the law in the block heard the shot and arrested witness.

B. Johnson's evidence, for the state, tended to show that when deceased went into the house from the yard where the argument was going on, appellant followed him, and he saw the front of the gun in appellant's mother hubbard, as appellant pulled it out as she followed deceased into the house. Witness identified the pistol, offered in evidence, as the same pistol he saw appellant pull from her mother hubbard. Appellant shot deceased while he was standing on the steps near the front door. The deceased said. "Don't do that; put that up."

The state's evidence further tended to show that the deceased backed out of the house with his hands up, saying, "Don't do that," immediately before the shooting. That Officer Erlacher testified as follows:

"Q. What statement, if any, did the defendant make? A. I said: `What did you want to do that for?' I said: `What did you want to shoot him for?' and she said: `Because he tried my temper out and I couldn't stand him any more, and he hasn't been working since February, and he comes in and rubs his dirty bands on my clothes after I got them done up;' and she had some clothes lying on the table, I believe."

The evidence on the part of the defendant tended to show: That the appellant was sickly and nervous; that deceased often abused and struck her; deceased, just prior to the killing, told Dr. Brown that he had told appellant she would need a doctor or an undertaker; the deceased had choked appellant recently prior to the killing so that she was treated by Dr. Brown; that the appellant bears a good reputation in the community for peaceableness and quietness.

Appellant, testifying for herself, stated that she married deceased and took him, into her home at 2609 Short Market street, in the city of St. Louis; he had not worked since January, 1921; she washed and ironed for a living, paid the house rent, and bought her own clothes; her husband would ask her for money and would beat her when she refused to give it to him, and he constantly beat her; he beat her just two weeks prior to the killing; on the morning of the killing, she was in the back yard hanging up clothes, and deceased came to her and asked her for money; she told him she did not have any, and he then jumped on her; she went into the house, where he followed, kicked her, and struck her on the arm; he told her that if she could not give him money he did not want her, and would get somebody who would; she went into the next room, and he followed her, picked up a pair of shears, and told her he would cut her damn heart out, threw the shears at her, and ran her around the bed; after she fired, lie dropped the shears, backed out the door, and fell on the sidewalk; deceased struck appellant on the arm and kicked her on the leg, and the kicking, striking, and threats with the shears were all done just prior to the shooting; she never pulled a gun from her bosom as she went into the house and by reason of the way she was dressed she had no way of carrying a gun; appellant did not, at any time, tell deceased that if he did not go away she would shoot him; appellant went back into the kitchen after the shooting and was very much excited.

Part of the evidence relied upon to justify an instruction for manslaughter is herewith set out:

"A. He kicked me on my leg and struck me on this arm (indicating).

"Q. What did he say to you? A. At the time he done that I broke and ran into the room, and he ran in the door where the old shears was hanging, and he came to me and said, `I will cut your damn heart out of you,' and I begged him not to do that, and he ran me around a circle this way (indicating), and I go to the end of the bed.

"Q. And he reached and got the shears? A. Yes, sir.

"Q. And as he did that what did, he say? A. he told me he would stab them through my damn heart. He told me he would kill me with them.

"Q. What did you do? A. I ran around that way for the bed, and when he started at me with the scissors, I grabbed the gun and shot him."

Defendant testified that she believed her life in danger, and would not have fired that shot had she not believed her life in danger or of losing her life or receiving great bodily harm.

Defendant testified on cross-examination that her home consisted of three rooms, in a row, kitchen, bedroom, and front room. The scissors were hanging in the middle room. She was doing her washing in the house. When deceased said he would cut her heart out, he was in the middle room, where he had followed her. "I was in the middle room, and when he struck, he said he would stab those scissors clean through me. Then I begged him not to do anything to me, and when he throwed the scissors down and fell out of the front door, then I fired. The scissors fell in the front room. He was standing in the doorway between the front room and the middle room. He was standing halfway in the front room when I begged him not to do it, and I fired." He was in the center of the front room when she fired. After she fired, he backed on out the front door and threw the scissors down.

The court instructed the jury on murder in the first and second degree, self-defense, and the usual instructions relative to the burden of proof, innocence, reasonable doubt, good character, and credibility of the witness, but gave no instruction on manslaughter, of which matter alone defendant, in her brief, complains.

Opinion.

I. The trial court failed to instruct the jury relative to manslaughter and the punishment therefor. Defendant neglected to request this instruction, or except to the court's action in failing to instruct the jury upon all questions of law arising in the case. The defendant, however, in her motion for a new trial, called the attention of the court, specifically, to its failure to instruct the jury on the law of manslaughter.

On the record, we may consider the failure of the court to so instruct the jury.

The fourth clause of section 4025, R. S. of Missouri, 1919, reads as follows:

"Fourth, whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instructions shall include, whenever .necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial."

In State v. Conway, 241 Mo. 271, 145 S. W. 441, a leading case on ...