State v. Davis
| Citation | 328 S.W.2d 706 |
| Decision Date | 12 October 1959 |
| Docket Number | No. 2,No. 47428,47428,2 |
| Parties | STATE of Missouri, Respondent, v. Percy Lloyd DAVIS, Appellant |
| Court | United States State Supreme Court of Missouri |
Joseph H. Glass, Kansas City, for appellant.
John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., James E. Conway, Asst. Atty. Gen., for respondent.
Upon an indictment for first-degree murder defendant was convicted by a jury of second-degree murder and the minimum punishment of ten years in the penitentiary was assessed. The jury gratuitously recommended clemency. This appeal followed in due course. The only error asserted here is the failure of the trial court to give an instruction on manslaughter as a part of the law of the case, though such was not requested. This, of course, involves a review of the evidence to see whether such an instruction was justified.
Defendant, 40 years old, was employed in Kansas City as a baker and worked generally from around midnight until early morning. He lived with his wife and her four children by a previous marriage. His wife had for some time associated with one Joe Lillard, but there is no evidence to show that defendant knew this, or that he suspected it prior to the night in question. Defendant's testimony was, in substance, as follows: On the night of September 5-6, 1958, defendant had started to leave his home for work about midnight when he heard the phone ring; he stopped and listened over a basement extension, and heard the end of a conversation in which his wife told a man that 'he wasn't coming over,' to which the man replied, 'I will see you'; he went on to the bakery, but 'got to thinking about it' and had a substitute baker called; he then drove his car to a point near his home, saw that a light was on in the house, parked, and walked to the rear of his house; he saw a man come to the front of the house; soon thereafter he stood on the first step of a ladder and saw this man and his wife in the bedroom on the bed, apparently 'struggling'; he went back to his car, got his .45 caliber automatic, unlocked the front door of his house and walked through to the bedroom; there he saw the deceased, Lillard, on the bed 'over my wife' and 'it looked like a struggle'; from the doorway he asked the man 'what he was doing in my house and in my bed,' and the man 'kind of raised up from one side as if to go into his hip pocket like,' and defendant promptly shot him twice. Defendant immediately called the police. He further testified on cross-examination that he took the gun into the house for protection, and that if the deceased 'hadn't raised up and made an attempt' he would not have shot him. Defendant's wife testified in substance (as supplemented by her signed statement to the police, read in cross-examination): that she had associated with Lillard for about a year and had engaged in illicit intercourse with him on certain occasions; that she had tried to break off the association; that on this night she told deceased not to come to the house, but that he came anyway, after she had gone to bed; that she got up and let him in to keep him from disturbing the neighbors; that he shoved her into the bedroom, took off his shirt, and was holding her down on the bed by the shoulders when her husband appeared; that the deceased 'jumped up with his hand down beside him,' and defendant shot; that she had told defendant nothing about her relationship with the deceased. In rebuttal, the State showed that no weapon was found on deceased's body; it calls attention to the fact that neither defendant nor his wife referred to any 'struggle on the bed' in their statements to the police.
The court instructed on first-degree murder, second-degree murder, and self-defense. In defendant's motion for new trial error was assigned 'in not instructing the jury that they could find the defendant guilty of manslaughter.' The State concedes that if the evidence justified an instruction on manslaughter, the court should have given it as a part of 'the law of the case' and without request. See State v. Smith, Mo., 240 S.W.2d 671; State v. Wright, 352 Mo. 66, 175 S.W.2d 866; State v. Burrell, 298 Mo. 672, 252 S.W. 709; Rule 26.02(6), 42 V.A.M.S. But the State insists that the above assignment in the motion for new trial is too general to constitute a compliance with Rule 27.20 requiring specific grounds or causes to be set forth 'in detail and with particularity * * *.' Several cases are cited which we think are distinguishable; for instance, specific explanations would have been imperative in some of those cases in order to demonstrate why a homicide committed during a robbery (Section 559.010 RSMo 1949, V.A.M.S.) would not constitute first-degree murder as a matter of course under the statute. State v. Powell, 339 Mo. 80, 95 S.W.2d 1186; State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, certiorari denied Burnett v. State of Missouri, 352 U.S. 976, 77 S.Ct. 367, 1 L.Ed.2d 326. The assignment here is somewhat sketchy, but its meaning and intent were clear, and the evidence was not unduly complicated. The State's contention is denied.
The sole question of substance here is whether, on this evidence, defendant was entitled to an instruction on manslaughter, for which the statute (Section 559.140 RSMo 1949, V.A.M.S.) permits much lesser penalties than that imposed here. In this connection we note defendant's own testimony at the trial indicating that he shot in self-defense. In homicide cases the existence or nonexistence of malice is determinative as between second-degree murder and manslaughter (State v. Smith, Mo., 240 S.E.2d 671, 674), and the absence of malice may be found when the accused acts upon lawful provocation. Id. In State v. Porter, 357 Mo. 405, 208 S.W.2d 240, the court said at loc. cit. 243: 'The character of manslaughter here, if such is involved, is the killing of another intentionally but in a sudden heat of passion due to adequate provocation and without malice. State v. Burrell, 298 Mo. 672, 252 S.W. 709, loc. cit. 711(2). The term provocation is defined in Wharton on Homicide, 3d Ed., 172, and the definition is quoted with approval in State v. Conley, 255 Mo. 185, loc. cit. 198, 164 S.W. 193, 197. The definition follows: 'A provocation is deemed to be adequate, so as to reduce the offense from murder to manslaughter, whenever it is calculated to excite the passion beyond control. It must be of such a character as would, in the mind of an average just and reasonable man, stir resentment likely to cause violence endangering life, or as would naturally tend to disturb and obscure the reason and lead to action from passion rather than judgment, or to create anger, rage, sudden resentment or terror, rendering the mind incapable of reflection.''
In State v. Clough, 327 Mo. 700, 38 S.W.2d 36, the court said at loc. cit. 38: (Citing cases.)
The question here resolves itself into two parts: (a) Was there any evidence which, by fair inference, would justify a manslaughter instruction? And, (b) did defendant...
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State v. Davis, 51527
...1; State v. Dill, Mo., 282 S.W.2d 456. And we have very definitely held that malice must be absent in all manslaughter cases, State v. Davis, Mo., 328 S.W.2d 706, so defendant's theory here is obviously unsound. Moreover, there can ordinarily be no reversible error in the giving of a mansla......
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State v. Luttrell
...killing was the product of passion inspired by what he saw going on before his eyes. The facts distinguish this case from State v. Davis, Mo.Sup., 328 S.W.2d 706, 709. Defendant further testified that twice during the evening after they had arrived at the trailer he had told deceased to lea......
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State v. Aubuchon
...not well taken. Moreover, the definition of provocation in this case is virtually the same as that quoted with approval in State v. Davis, Mo., 328 S.W.2d 706, 708. Assignment 16 complains of error in Instruction No. 5 charging that it 'negatived the Defendant's self-defense instruction and......