State v. Colbert

• Decision Date: 13 February 1950
• Docket Number: No. 1,No. 41665,41665,1
• Citation: 226 S.W.2d 685
• Parties: STATE v. COLBERT
• Court: Missouri Supreme Court

Page 685

226 S.W.2d 685

STATE v. COLBERT.

No. 41665.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1950.

J. E. Taylor, Attorney General, John R. Baty, Assistant Attorney General, for respondent.

CONKLING, Judge.

Jessie James Colbert, defendant-appellant, appealed from the judgment of the circuit court of Jackson County, wherein, upon the jury's verdict, he was sentenced to twenty years imprisonment in the state penitentiary for the murder of Thelma Jackson, who had lived with him as his wife.

After appellant's motion for new trial was overruled, he filed here a transcript of the entire record, including a bill of exceptions containing all the evidence introduced, but he filed no brief in this court. Upon this appeal, without brief or argument by appellant's counsel, we examine the record proper and consider the assignments made in appellant's motion for new trial. Mo.R.S.A. Sec. 4150; State v. Weston, Mo.Sup., 202 S.W.2d 50.

Appellant's motion for new trial raises only the questions that (1) there was not sufficient evidence as to corpus delicti to sustain the charge made in the information, (2) under the facts instruction four failed to fully instruct upon all the necessary law as to manslaughter, and (3) instruction five submitting self-defense failed to submit that the homicide was justified if committed to prevent the commission of a felony upon appellant.

The testimony tends to show that from September, 1943 until May, 1948 appellant and deceased lived together as man and wife. Thereafter, deceased left appellant. They were separated because of some other man. Deceased told appellant she had left him and had another 'boy friend'. While they were separated appellant told his landlady, Mrs. Meade, that he intended to kill Thelma Jackson. On June 15, 1948, appellant purchased a 38 cal. revolver and took it to his room. On the evening of June 16, 1948, when appellant returned to his room, deceased, wearing a flowered dress, was standing in the hallway leading to the room. Appellant and deceased then entered the room together. Four or five minutes later the landlady heard a noise in appellant's room, but she did not investigate it.

By appellant's written confession made on June 20, 1948, it was shown that, immediately after they entered the room, appellant asked deceased if she had come back had not. A quarrel then ensued and, 'we started scuffling. When we got near the dresser I reached in the dresser drawer and got my gun. We continued to scuffle and I stumbled over a chair and fell. She (deceased) started for the ice box again and I pointed the gun at her and fired one shot. I was standing near the kitchen table when I fired this shot and Thelma was standing by the ice box and had started reaching for the shot gun. I turned and ran out of the house'.

Three days later the landlady unlocked the door of appellant's room and Thelma Jackson's body lay on the floor. She had been dead about three days. When discovered she had on the same dress she was wearing when the landlady saw her enter the room with appellant on the evening of June 16. The testimony established that she had died from a gun shot wound in the upper chest. No gun was found in the room. Appellant was arrested in another state. The revolver which he had purchased on June 15, and with which he admitted he shot deceased, was found under his pillow when he was arrested.

While in a murder prosecution the state has the burden to establish defendant's guilt and every element of the offense, including the corpus delicti, State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, the latter may be shown by the best evidence obtainable but such evidence must be legally sufficient to convince beyond a reasonable doubt. To establish the corpus delicti, in addition to proving the death of a human being, the state must show the criminal agency of another in causing such death. State v. Meidle, Mo.Sup., 202 S.W.2d 79, 81. The jury could infer from these facts and surrounding circumstances that the death of deceased was not due to natural causes or accident and that such death was not self-inflicted. The criminal agency of defendant in causing the death of deceased is apparent from the above facts and circumstances. The proof of corpus delicti is sufficient. State v. King, 342 Mo. 1067, 119 S.W.2d 322, State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843, State v. Barrington, 198 Mo. 23, 95 S.W. 235.

We next consider instruction four. That instruction submitted manslaughter in the usual and proper form. The motion for new trial complains that inasmuch as, in R.S.Mo.1939, Sec. 4379, Mo.R.S.A., homicide is deemed justifiable when 'committed by any person in either of the following cases: * * * or, third, when necessarily committed in * * * preserving the peace', that instruction four is erroneous for not excusing this homicide if appellant was 'preserving the peace', when...