State v. Enyard

• Decision Date: 26 August 1937
• Docket Number: No. 35348.,35348.
• Parties: STATE v. ENYARD.
• Court: Missouri Supreme Court

108 S.W.2d 337

STATE v. ENYARD.

No. 35348.

Supreme Court of Missouri, Division No. 2.

August 26, 1937.

Appeal from Circuit Court, Buchanan County; Ferd J. Frankenhoff, Judge.

Marion Enyard was convicted of manslaughter, and he appeals.

Judgment reversed and cause remanded for new trial.

Homer C. King and Abe Goldman, both of St. Joseph, for appellant.

Roy McKittrick, Atty. Gen., Olliver W. Nolen, Asst. Atty. Gen., and Arthur O'Keefe, of Jefferson City, for respondent.

WESTHUES, Commissioner.

Appellant was charged, by an information filed in the circuit court of Buchanan county, Mo., with the crime of murder in the first degree. He was convicted of manslaughter and sentenced to imprisonment in the penitentiary for a term of three years. He appealed.

Appellant was charged with having murdered his wife, Lillian Enyard. The Attorney General's brief contains a sufficient statement of the facts for the purpose of this opinion. It reads as follows:

"Marion Enyard lived at 721½ South 23d street, in the city of St. Joseph, Missouri. There are two houses upon this lot, the house in which the defendant, Enyard, lived being on the back part of the lot. Enyard lived there with his wife, Lillian, and one W. T. Brame, said Brame being the owner of the property.

"On Sunday, July 28, 1935, about 5:00 o'clock, Enyard went to the tavern, or restaurant, called the `Pastime', owned by one Louis Smith. Some time later, he was joined by his wife, Lillian. The two and one Crews Taylor sat in the `Pastime' until about 10:30, when they got up and left the place and started for home. The three people walked down Messanie street and when they came to 19th street, where Taylor was to turn off, Enyard slowed down to tell him goodbye. Mrs. Lillian Enyard walked on and when her husband turned to go, he saw that his wife was gone, so he walked back down the street to 18th, where he sat on a ledge in front of the `Pastime'.

"About 11:30, Enyard started for home. When he arrived, he walked up on the porch and started to go into the house. His wife, who was sitting on the porch in the swing, called to her husband. He turned and saw she was sitting there in a swing with a man. Enyard asked her why she had run off and left him. His wife answered, `None of your damned business'.

"From here on the testimony, while not conflicting, is not absolutely in harmony.

"The defendant testified that after his wife had spoken to him the second time she fired at him, and at the same time he was hit over the head. He sank to his knees and his wife fired again. Enyard got up and grabbed hold of his wife and began to scuffle, calling for help. The two fell down and the defendant testified he was hit again on the top of his head. They scuffled down from the porch onto the ground and Enyard got hold of the pistol and fired a number of times at his wife, Lillian. She lay on the ground, dead from two wounds about midway between the ear and the top of the head, about four inches apart and one in the right wrist. Enyard called for help and then walked out the front gate down the street a short ways and then back again. He went into the house and called the police and told them to bring an ambulance. Enyard then went out and sat on the lower step. He testified that he still had the gun in his hand and that he unconsciously pulled the trigger, firing one shot.

"Testimony on the part of the witnesses adduced by the state and the defense is conflicting as to the number of shots that were fired and the amount of time between the various shots.

"W. T. Brame, on the part of the state, testified that he heard three shots, then one shot and then seven or eight minutes later, another shot. His testimony at the preliminary hearing was that he heard three shots in succession and then one seven or eight minutes later.

"One Henry White, introduced by the state, lived in the front house on the lot and testified that he heard a scream, then one shot and then a couple seconds later, another shot. About two minutes later, he heard three shots and then some time later, he heard one shot out in front.

"John Feuqua, who lived across the street, from the place where the alleged crime occurred, testified that he was awakened by a scream and then heard three shots.

"James A. Ziolkowski, who lived across the alley from the Brame house, testified that he heard one shot and then a woman scream and then heard three shots and finally one shot.

"Joseph Haskey, introduced on behalf of the defendant, testified that he lived about six doors from the Brame house. He stated that he heard two shots and then a man call for help. Then, he heard three more shots.

"The gun used in the shooting belonged to Mr. W. T. Brame and the defendant testified that he had not seen the gun since January, 1935, approximately six months prior to the shooting and that he did not know that the gun was in Brame's house.

"The state introduced evidence by Harley Webb, who was a truck driver for the Brown Transfer and Storage Company, that on July 5, 1935, Enyard had threatened Webb with this gun and he had had Enyard arrested and the gun was taken from him by the police. Officer William Strope, of the St. Joseph Police Department, identified the gun as the one taken from Enyard on that day and returned to him. Mr. Brame testified that he had hid the gun under his mattress in his room, but that the room was not locked. Evidence was introduced as to the wounds and bruises of the defendant, one gun shot in his right side and a wound on the right side of his head, just below the hair line and one on the left side where the head goes into the neck, the two latter wounds being in the nature of lacerations or abrasions, caused by being hit."

It may be stated that the defendant introduced evidence, which, if true, justified a verdict of not guilty on the ground of self-defense. The state's evidence justified the verdict as returned by the jury. The state offered evidence of statements made by the defendant concerning the homicide. The trial court gave an instruction which read:

"`The court further instructs the jury that if you believe and find from the evidence that the defendant voluntarily made any statement or statements, either oral or written, after the alleged offense was committed, you should consider such statement or statements all together. The defendant is entitled to the benefit of what he said for himself, if true, as the State is to the benefit of what he said against himself, if anything; but in any statement of defendant proved by the State, what he said against himself the law presumes to be true, because against himself, and what he said for himself you are not bound to believe because said in a conversation proved by the State; you may believe it or disbelieve it, as it may be shown to be true or false by all the evidence in the case.'"

Appellant in his motion for new trial and in his brief contends that the giving of that instruction was error. The State contends that the instruction was harmless error in this case, because most, if not all, of the statements, proved to have been made by appellant, were admitted to have been made and were not inconsistent with appellant's testimony at the trial. To this we cannot agree. It is true that appellant admitted the shooting, but there was a sharp issue as to whether the shooting was done without legal justification. Witness Brame testified that appellant made the following statement:

"Q. Now, what did he tell you about a man being there at that time? A. He said when he walked up on the porch, he said there was a man sitting on the bench and that he thought it was me sitting there, and he started to go in and she called him and he didn't pay any attention to her and she shot him.

"Q. Did he say the man did anything to him? A. He said the man struck him and run."

A police officer testified as follows concerning statements made by appellant:

"Q. Well, did you ask Mr. Enyard what had happened? A. Yes, sir.

"Q. And what did he say? A. He said, `Yes, I done it,' and says `if she ain't dead, I hope she is...