State v. Chamineak

• Decision Date: 01 July 1957
• Docket Number: No. 48062,No. 2,S,No. 117,48062,2,117
• Citation: 343 S.W.2d 153
• Parties: STATE of Missouri, Respondent, v. Harry James CHAMINEAK, Appellant. Feb, 13, 1961. No appearance for appellant. John M. Dalton, Atty. Gen., Richard W. Dahms, Sp. Asst. Atty. Gen., for respondent. STOCKARD, Commissioner. Harry James Chamineak was charged by indictment with murder in the second degree of Harold Hogan, and was also charged under the Habitual Criminal Act with one previous conviction. Upon a finding of guilty of manslaughter by the jury he was sentenced by the court, pursuant to Sec. 556.280, as amended, Laws of Missouri 1959, S.B.ec. 1, to confinement in the penitentiary for a term of seven years. He has appealed from the ensuing judgment. This is a second appeal. See State v. Chamineak, Mo.Sup. 328 S.W.2d 10. Defendant has filed no brief. Our review extends to the essential record and the allegations of error in the motion for new trial, of which there are forty-one. Supreme Court Rules 27.20 and 28.02, V.A.M.R. Agnes Hogan (later married to defendant) obtained a divorce from Harold Hogan on
• Court: Missouri Supreme Court

Page 153

343 S.W.2d 153

STATE of Missouri, Respondent, v. Harry James CHAMINEAK, Appellant.

No. 48062.

Supreme Court of Missouri, Division No. 2.

Feb, 13, 1961.

No appearance for appellant.

John M. Dalton, Atty. Gen., Richard W. Dahms, Sp. Asst. Atty. Gen., for respondent.

STOCKARD, Commissioner.

Harry James Chamineak was charged by indictment with murder in the second degree of Harold Hogan, and was also charged under the Habitual Criminal Act with one previous conviction. Upon a finding of guilty of manslaughter by the jury he was sentenced by the court, pursuant to Sec. 556.280, as amended, Laws of Missouri 1959, S.B. No. 117, Sec. 1, to confinement in the penitentiary for a term of seven years. He has appealed from the ensuing judgment. This is a second appeal. See State v. Chamineak, Mo.Sup. 328 S.W.2d 10. Defendant has filed no brief. Our review extends to the essential record and the allegations of error in the motion for new trial, of which there are forty-one. Supreme Court Rules 27.20 and 28.02, V.A.M.R.

Agnes Hogan (later married to defendant) obtained a divorce from Harold Hogan on July 1, 1957, and as a part of the property settlement in connection with the divorce received title to a house at 4226 Pleasant Street (subject to an FHA loan) and was awarded the sum of $3,900 as her share in a business she and her husband had owned. During the divorce proceedings the Federal Government recorded a lien of approximately $2,000 against the house to recover taxes allegedly withheld by Harold from the salaries of employees but not paid by him to the government. On the evening of March 1, 1958, Sam Bass, Agnes' stepfather, and the defendant, who also lived at 4226 Pleasant Street, went to a restaurant operated by Harold's brother Hieatt to see if Harold worked there so that if he did the fact could be reported to the Department of Internal Revenue. Sam told Lois Gallagher, the waitress, that he was looking for Harold and that he was going to kill him. Lois later told Hieatt that Sam had made threats against Harold. Hieatt then met Harold at a tavern about a block away and after having a few drinks they were joined by Francis Steingrubey, the operator of a nearby gasoline service station. The three left together and visited two other taverns looking for Sam, but failed to find him. They then drove to 4226 Pleasant Street, and Hieatt went to the door and knocked. According to Hieatt the defendant answered the door, and when he asked to see Sam the defendant said 'He isn't here, but I'll talk to you myself.' Hieatt testified that he then went back to the automobile without further conversation. Defendant's version was that he told Hieatt that Sam lived upstairs and Hieatt asked if he (defendant) was the one who was with Sam at the restaurant. When he answered that he was, Hieatt said, 'Well you tell Sam to come on outside and * * * you come out also. * * * We will get both of youse,' and that 'you are either coming out or we are coming in.' Hieatt then returned to the automobile and the three drove around the block and came back to approximately the same place. A few minutes later the defendant came out of the house carrying a shotgun. He walked to the automobile and asked Harold if he was looking for trouble. When Harold said 'no,' according to Hieatt and Steingrubey, defendant shot him in the head and killed him. Defendant's version was different. He testified that he went to the automobile and asked Harold 'why do you want to give us trouble for?' and 'why don't you guys get away from here?' Hieatt then said, 'Now is your chance Harold,' and Harold said, 'I'll get him.' Defendant said that he 'looked at Harold and I seen this gun coming up' so he jumped back and fired. He said that he shot because he did not want Harold to shoot him. An unloaded .22 caliber pistol was found later in the Hogan automobile, and at the morgue a blackjack was found in Harold's left trouser pocket.

Defendant first contends in his motion for new trial that the trial court erred in overruling his motion to dismiss the indictment under the doctrine of res judicata. It appears that defendant was charged with shooting Hieatt with intent to kill, and that upon trial a jury returned a verdict of not guilty. Defendant asserts that the theory of the State in that case was that in a 'matter of seconds' after he shot Harold he wilfully and with malice aforethought shot Hieatt, and that the theory of defendant was that he shot both Harold and Hieatt in self-defense after Harold pulled out a gun and threatened to kill him or do him great bodily harm. Defendant asserts that the 'facts and matters' put in issue and decided against the State in the previous case pertaining to self-defense are the same facts and matters which the State attempts to put in issue in the present case which the doctrine of res judicata forbids.

"The doctrine of res judicata by which a fact or matter distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties, is applicable to judgments in criminal prosecutions. * * * The doctrine of res judicata, as applied to criminal cases, is subject to the same limitations as apply in civil cases. And clearly, there must be an adjudication of the fact or issue in question. A judgment in a criminal case operates as res judicata only with respect to the issues of law and fact actually decided and those necessarily involved in the result." State v. Humphrey, 357 Mo. 824, 210 S.W.2d 1002, quoting from 15 Am.Jur. Criminal Law Sec. 367, Cumulative Supplement. See also 50 C.J.S. Judgments Sec. 754; Vol. I Wharton's Criminal Law and Procedure, Anderson, Sec. 174; Sealfon v. United States, 332 U.S. 575, 68 S.Ct 237, 92 L.Ed. 180; Harris v. State, 193 Ga. 109, 17 S.E.2d 573, 147 A.L.R. 980. The application of the doctrine of res judicate 'depends upon the facts adduced at each trial and the instructions under which the jury arrived at its verdict at the first trial.' Sealfon v. United States, supra [332 U.S. 575, 68 S.Ct. 239]. In this case defendant admits that the shot which killed Harold was not the one which wounded Hieatt. Assuming that the record before us is sufficient to establish that in a previous case the defendant was acquitted of the charge of shooting Hieatt with the intent to kill, and that a defense in that trial was that of self-defense, the determination of that issue is not necessarily essential to the result there reached, and the verdict of guilty in this case may be sustained without necessarily contradicting any fact determined by the former judgment. Vol. I Wharton's Criminal Law and Procedure Sec. 174 at p. 410; 15 Am.Jur. Criminal Law Sec. 367, Cumulative Supplement. In State v. Barton, 5 Wash.2d 234, 105 P.2d 63, it was held that the issue of alibi raised as a defense in a previous prosection, in which a judgment of acquittal was had, was not res judicata in a subsequent prosecution for a separate offense committed as a part of the same general occurrence. State v. Humphrey, supra, 357 Mo. 824, 210 S.W.2d 1002, quoted with approval from the Barton case as follows: 'It is not possible to determine whether the jurors returned a verdict of acquittal because they credited the testimony in support of appellant's alibi, or for the reason that they found the state's evidence insufficient as to one or more essential elements of the offense charged. They could have utterly disregarded all of the testimony adduced by the appellant in his defense and yet have returned a verdict of not guilty. The verdict and the judgment based thereon were not, therefore, res judicata, as to appellant's alibi, nor as to any other particular fact. They were res judicata only as to the ultimate fact that appellant was not guilty of the crime of which he was accused.' The fact that defendant was held in the previous case to be not guilty of shooting Hieatt with intent to kill was not determinative of the issue of self-defense in the trial of the present case, and the trial court did not err in overruling defendant's motion to dismiss the indictment for the assigned reasons.

Defendant admitted that the shot he fired killed Harold Hogan, and there was no contention that the shooting was accidental. There unquestionably was a submissible case on second degree murder. See State v. Finn, Mo.Sup., 243 S.W.2d 67. While there may be some question whether under the circumstances of this case defendant was entitled as a matter of law t an instruction on manslaughter, see State v. Finn, supra, the trial court did give such an instruction and the jury found him guilty of manslaughter instead of murder in the second degree. In this situation, when a submissible case is made as to murder, the defendant is not entitled to complain that a submissible case was not made as to a lesser degree of homicide. State v. Garrett, Mo.Sup., 282 S.W.2d 441; Sec. 545.030 RSMo 1949, V.A.M.S.

Defendant contends that the trial court erred in permitting 'Lois Gallagher [a witness for the state] to relate all alleged statements made by Sam Bass in the Hogan's Grill' because they were hearsay. Lois testified that defendant and Sam Bass came to the restaurant and that Sam told her he was looking for Harold Hogan and that he was going to kill him. She also stated that defendant then told her that Sam was serious. It is evident that the jury could reasonably find that at the time defendant and Sam Bass were together at the restaurant they were acting together and in concert, and were conspirators within the significance of the term as it is used in determining the admissibility in evidence of statements made by them. 22 C.J.S. Criminal Law Sec. 754, p. 1291. Threats made by either of the conspirators under the circumstances were material and admissible. 22 C.J.S. Criminal Law Sec. 754, p. 1288. The threat of Sam Bass against Harold Hogan was as material as if it had been made by defend...