State v. Cavener

• Decision Date: 09 June 1947
• Docket Number: 39912
• Citation: 202 S.W.2d 869,356 Mo. 602
• Parties: State v. Dave Cavener, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 869

356 Mo. 602

State v. Dave Cavener, Appellant

No. 39912

Supreme Court of Missouri

June 9, 1947

Appeal from Jasper Circuit Court; Hon. Woodson Oldham Judge.

Reversed and remanded.

Roy Coyne and James A. Cooley for appellant.

(1) Evidence of complaints to public authorities of the threats of the deceased should have been admitted. People v Lyon, 17 N.E. 391; State v. Harch, 46 P. 708; State v. Maguire, 21 S.W. 212. (2) In Instruction 2 and all the other instructions given by the court, the definition of "reasonable doubt" was never given to the jury, and since the jury was never instructed on the definition of reasonable doubt, it was error to give this instruction without defining the words "reasonable doubt." (3) Instruction 6 was erroneous. State v. Cole, 263 S.W. l.c. 210; State v. Sheldon, 267 S.W. 938; State v. Rozell, 279 S.W. 705. (4) Evidence of the Masonic and Church affiliations of the deceased was introduced solely for the purpose of influencing some members of the jury who were Masons.

J. E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.

(1) Assignments of error in motion for new trial not carried forward in appellant's brief are waived. State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245. (2) The court did not err in sustaining objection to the testimony of witness Russell Mallett and Frank Harris. State v. Golden, 330 Mo. 784, 51 S.W.2d 91; State v. Atchley, 186 Mo. 174, 84 S.W. 984; State v. Maguire, 113 Mo. 670, 21 S.W. 212. (3) The court did not err in failing to define the meaning of the term "reasonable doubt" in Instruction 2. State v. Ransom, 340 Mo. 165, 100 S.W.2d 294. (4) The trial court did not commit error in giving Instruction 4, on second degree murder, by referring the jury to other instructions for a definition of "self-defense". State v. Pinkard, 318 Mo. 751, 300 S.W. 748. (5) The court did not err in giving Instruction 6 covering threats made by deceased against defendant. State v. Davis, 284 Mo. 695, 225 S.W. 707; State v. Cole, 304 Mo. 105, 263 S.W. 207; State v. Shelton, 267 S.W. 938; State v. Rozell, 279 S.W. 705. (6) Defendant alleges error in the giving of Instruction 7 on good reputation of defendant. State v. Maupin, 196 Mo. 164, 93 S.W. 379. (7) The court did not err in admitting incompetent, irrelevant and immaterial evidence in connection with the testimony of members of the Masonic Lodge. Sec. 4125, R.S. 1939; State v. Gentry, 320 Mo. 389, 8 S.W.2d 20; State v. Zoller, 1 S.W.2d 139; State v. Taylor, 323 Mo. 15, 18 S.W.2d 474. (8) The trial court did not err in refusing to permit witness Ceaf Hames to testify as to a personal encounter with deceased to prove his violent and turbulent disposition. State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079. (9) The trial court did not err in overruling defendant's Assignment No. 13 in his motion for new trial. Sec. 4125, R.S. 1939; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Kelly, 107 S.W.2d 19; State v. Bagby, 338 Mo. 951, 93 S.W.2d 241.

Bradley C. Dalton, C., dissents; Van Osdol, C., concurs.

OPINION

BRADLEY

Defendant was charged by information with murder in the first degree; convicted of murder in the second degree; sentenced, in accordance with the verdict, to a term of 25 years in the penitentiary, and appealed.

Error is assigned: (1) On the admission and exclusion of evidence; (2) on instructions 2, 4, 6, and 7; and (3) on the ground that the evidence does not justify the verdict, and that the punishment assessed by the jury shows bias and prejudice of the jury against defendant.

In the early morning of July 3, 1945, shortly after midnight, defendant shot and killed Tom Morrison in the City of Joplin. The deceased was 75 years old and defendant 65. Defendant had resided in Joplin 43 years; was a miner for 38 years, and had known deceased for 43 years. Deceased had been an officer for 39 years, and was on the regular police force for 7 years. Both, at the time of the shooting, were merchant police, that is, they were employed for night service by merchants to look after the business places of those who employed them. A part of this service was to act as guard to an employee when the employee went to the bank at night to make deposits. They represented different employers and had no service in common. Each had a commission for merchant police service from the proper authorities. They went armed while on duty, and both had been in the merchant police service for a number of years. They used an automobile in visiting the different places they were employed to look after, and defendant for four years had usually kept his shotgun in his car when on duty, and he also carried a pistol in a holster. Deceased also carried a pistol in a holster.

Defendant's evidence tended to show that deceased, on occasions, accused defendant of encroaching on the territory of the deceased, that is, on what is termed his beat, and because of this, ill feeling was created between them. Also, defendant's evidence tended to show that deceased, on several occasions, threatened to kill defendant and many of these threats were communicated to defendant. Defendant testified (corroboration by others) to an occasion when deceased threatened to kill him, followed him to his (defendant's) car and kicked him and said, "You son of a bitch, pull your gun. I'll beat you to the draw. I'll kill you." On another occasion (corroborated by others) defendant said deceased ran him into a car lot office; kept him there for about an hour; said, "Come out you son of a bitch; I am going to kill you." It could serve no purpose here to detail the evidence as to all the various threats.

Defendant shot deceased, one shot, with a 12 guage double barrel shotgun, No. 4 shot. The killing occurred on the northeast corner of the intersection of Joplin and 7th streets. The Family Beverage No. 3 place of business was on this corner and this place of business was one of the places employing defendant to serve as a merchant police. As we understand, The Family Beverage No. 3 building extended east and west along 7th street, and was some distance north of the curbline. There was a sidewalk 3 or 4 feet in width near and in front of the building, and between this sidewalk and 7th street sidewalk to the south, there was a graveled area 35 or 40 feet in width. On the southwest corner of the intersection of Joplin and 7th street was the Blankenship hamburger stand. Deceased, just prior to the killing, was at this hamburger stand and walked from there to the place he was shot on the northeast corner of the intersection. The evidence was conflicting as to the direction deceased traveled to reach the northeast corner of the intersection. Some of the state's evidence was to the effect that deceased first walked north from the hamburger stand to the north side of 7th street and then east to the northeast corner of the intersection, but defendant's evidence was that deceased walked diagonally across the intersection from the southwest corner.

On the night of the killing defendant was driving his 1941 Ford coach and had his shotgun in the rear seat. He drove his car to Family Beverage No. 3 and parked in front of the building a few minutes before 12 o'clock midnight. This place closed around midnight and defendant expected to act as guard for whoever took the money from this place to make a night deposit. Defendant's evidence as to what occurred after he parked his car, in narration, may be stated as follows:

"I parked my car, headed somewhat northwest, in front of Family Beverage No. 3 on the northeast corner of 7th and Joplin about 3 minutes till 12 o'clock, and when I drove up I saw three men standing over near the hamburger stand on the southwest corner of 7th and Joplin, and recognized Tom Morrison (deceased) as one of the three. I had seen him twice before on that night, the first time at Miller Motor Company where he said to me, 'You son of a bitch, I will kill you.' I got in my car and left that place. Later in the evening I saw him at Three Winners, and he started towards my car and I got in my car and left. After I parked my car in front of Family Beverage No. 3, I went inside Family Beverage No. 3 and asked Jones (an employee therein) if he was ready to go to the bank; talked to Jones a few minutes. Then I turned around and walked out; went back to my car. When I got back to my car I saw Tom Morrison coming catacorner across the street from the hamburger stand; he came northeast across the intersection. I tried to get around to my steering wheel where I could get in the car. As Morrison came across the street he said, 'You son of a bitch, I will kill you.' At that time he was pretty near across the street. He had his hand right there (indicating the right side). I knew his reputation for being a good shot and being able to pull his pistol quick from his holster. He had his hand where he carried his gun. I ran around on the north side of my car, on the right hand side; opened the door, reached in, got my shot gun. He kept coming right at me and did not move his right hand from his gun. As he came toward me after making that remark I shot him. I shot him to keep him from killing me; I was afraid of him."

A plat of the scene was used at the trial, but is not here and it is difficult to appreciate distances. But as we understand, deceased had reached the gravel area in front of Family Beverage No. 3, and was 25 or 30 feet from defendant when the shot was fired. Defendant said deceased continued to come on after the shot but fell some 12 or 15 feet south of his car.

Rudolph Canki, an employee of Family Beverage No. 3, testified as a witness for the state that he saw defendant a "good five minutes" before the shooting on the...