State v. Ferguson
| Decision Date | 05 June 1944 |
| Docket Number | 38857 |
| Citation | 182 S.W.2d 38,353 Mo. 46 |
| Parties | State v. Grace Ferguson, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied September 5, 1944.
Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.
Affirmed.
Roy Coyne and Ray Bond for appellant.
(1) Evidence of the character of a defendant in a criminal case is not admissible unless, first: the defendant puts same in issue by introducing evidence in support of her good reputation, and such evidence must then be confined to traits of character involved in the offense for which the defendant is being tried; or, second, where the defendant takes the stand in her own behalf, in which event, the evidence must be restricted to testimony relative to the defendant's reputation for truth and veracity; and testimony as to the reputation of the defendant for general morality is not admissible in a homicide case, even though the defendant did take the witness stand, where her character testimony was confined to her reputation for being honest and truthful and for being a peaceable, law-abiding citizen. State v Scott, 58 S.W.2d 275, 332 Mo. 255, 90 A.L.R. 860; State v. Williams, 87 S.W.2d 175, 337 Mo. 884, 100 A.L.R. 1503; State v. Anslinger, 171 Mo. 600, 71 S.W. 1043; State v. Beckner, 194 Mo. 281, 91 S.W. 892, 3 L.R.A. (N.S.) 535; State v. Quinn, 130 S.W.2d 511, 344 Mo. 1072; State v. Willard, 142 S.W.2d 1046, 346 Mo. 773; State v. Robinson, 130 S.W.2d 530, 344 Mo. 1094; St. Louis v. Tanner, 143 S.W.2d 354. (2) If separation or misconduct of the jury takes place in a felony case during progress of trial, verdict will be set aside unless the State affirmatively shows that the jury were not subject to improper influence. State v. Dodson, 92 S.W.2d 614, 338 Mo. 846; State v. Hayes, 19 S.W.2d 883, 323 Mo. 578; State v. McGee, 83 S.W.2d 98, 336 Mo. 1082; State v. Connor, 274 S.W. 28; State v. Tarwater, 239 S.W. 480, 293 Mo. 273; State v. Asbury, 36 S.W.2d 919, 327 Mo. 180; State v. Schlie, 169 S.W.2d 348. (3) Where it appears, from proper and credible evidence, that one or more jurors pre-judged a case in which they sat, or that the jury were advised of, took into consideration and were influenced by purported facts which were not testified to on trial of the case, a new trial should be granted. State v. Wyatt, 50 Mo. 308; State v. Taylor, 64 Mo. 458; State v. Connor, 274 S.W. 28; State v. Hutchinson, 289 S.W. 969; State v. Burnside, 37 Mo. 343; State v. Malone, 333 Mo. 594, 62 S.W.2d 909; Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795; Middleton v. Kansas City Pub. Serv. Co., 348 Mo. 107, 152 S.W.2d 154; State v. Sherrill, 278 S.W. 992. (4) Jurors are not authorized to base their verdict on conjecture, suspicion or surmise. State v. Wilson, 135 S.W.2d 993, 345 Mo. 862; State v. Smith, 130 S.W.2d 550, 344 Mo. 1129; State v. Shields, 58 S.W.2d 297, 332 Mo. 280; State v. Carter, 36 S.W.2d 917; State v. Pippin, 36 S.W.2d 914, 327 Mo. 299; State v. Pritchett, 39 S.W.2d 794, 327 Mo. 1143; State v. Davis, 84 S.W.2d 633, 337 Mo. 404; State v. Carpenter, 154 S.W.2d 81, 348 Mo. 464; State v. Schrum, 152 S.W.2d 17, 347 Mo. 1060. (5) Under the evidence in this case, the trial court should have given the jury an instruction that they should find the defendant guilty of manslaughter, if they found the facts to be such as to entitle the defendant to the right of "imperfect self-defense," that is to say, if they found that the defendant, after firing the first shot, followed the deceased from the room in which said shot was fired to or towards the adjoining kitchen, without any felonious intent or purpose, and thereafter shot and killed the deceased in self-defense. State v. Roberts, 280 Mo. 669, 217 S.W. 988; State v. Rennison, 306 Mo. 473, 267 S.W. 850, 852; State v. Reeves, 195 S.W. 1027; State v. Gordon, 191 Mo. 114; State v. Kretschmar, 232 Mo. l.c. 41, 133 S.W. 16; State v. Eastham, 240 Mo. l.c. 250, 144 S.W. 492; State v. Harlan, 240 S.W. 197; State v. Zorn, 202 Mo. l.c. 41. (6) Under the evidence in the case the trial court should have instructed the jury that they could find the defendant guilty of manslaughter if they found that she fired the fatal shot without deliberation, premeditation or malice, and under such circumstances as not to constitute justifiable or excusable homicide. State v. Garrison, 147 Mo. 548; State v. Grugan, 147 Mo. 39; State v. Hanson, 231 Mo. 14; State v. Howard, 102 Mo. 142; State v. Ellis, 74 Mo. 207; State v. Conley, 255 Mo. 185; State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42; State v. Gore, 292 Mo. 173, 237 S.W. 993; State v. Bird, 286 Mo. 593, 228 S.W. 751; State v. Wright, 175 S.W.2d 866. (7) Where a defendant makes or is claimed to have made statements to officers which are inconsistent with the testimony of the defendant at the trial of the case, and evidence that such statements were made is introduced on behalf of the State, and if such extra-judicial statements contain facts which, if believed by the jury, would entitle the defendant to instructions on manslaughter, it is error to fail to give such instructions. State v. Wright, 175 S.W.2d 866; State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556; State v. Bidstrup, 237 Mo. 273, 140 S.W. 904. (8) In a homicide case it is the duty of the court to instruct the jury on all of the law applicable to the case, and the failure of the court to instruct on manslaughter, where such instruction should have been given under the evidence, constitutes reversible error, even though the defendant did not, at the trial, request the giving of such an instruction, provided the defendant preserves the question by assigning the failure to give such instruction as error in the motion for a new trial. Sec. 4070, R.S. 1939; State v. Wright, 175 S.W.2d 866; State v. Burrell, 298 Mo. 672, 252 S.W. 709; State v. Heath, 221 Mo. l.c. 581, 121 S.W. 149.
Roy McKittrick, Attorney General, L. I. Morris and Gaylord Wilkins, Assistant Attorneys General, for respondent.
(1) No error was committed by the court for failing to instruct the jury on the issue of manslaughter. State v. Bongard, 51 S.W.2d 84; State v. Kaufman, 73 S.W.2d 217, 335 Mo. 611; State v. Nasello, 30 S.W.2d 132, 325 Mo. 442; State v. Aguelera, 33 S.W.2d 901, 326 Mo. 1205; State v. Matthews, 10 S.W. 144, 98 Mo. 125; State v. Matthews, 11 S.W. 1135, 98 Mo. 125; State v. Cochran, 94 S.W. 558, 147 Mo. 504; State v. Lewis, 79 S.W. 671, 181 Mo. 235; State v. Baker, 24 S.W.2d 1039, 324 Mo. 846; State v. Biswell, 352 Mo. 698, 179 S.W.2d 61. (2) There was no misconduct on the part of the jury in this case which would justify a reversal. State v. Jefferson, 109 S.W. 614, 210 Mo. 302; State v. McGee, 83 S.W.2d 98, 336 Mo. 1084. (3) The court did not err in refusing to give defendant's Instruction 10. State v. Lindsey, 62 S.W.2d 420. (4) No error was committed in admitting testimony as to the reputation of the accused to be brought out in rebuttal as same was raised by defendant in the first instance. State v. Scott, 58 S.W.2d 275; State v. Robinson, 130 S.W.2d 530. (5) This court, ordinarily, considers contentions in the motion for new trial which are briefed, those not carried forward in the brief, are waived. State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168; State v. Goffstein, 116 S.W.2d 65, 342 Mo. 499.
Barrett, C. Westhues and Bohling, CC., concur.
In killing her husband, William Ferguson, the jury found that Grace Ferguson was guilty of murder in the second degree and assessed her punishment at ten years in the penitentiary. On this appeal she concedes that there was evidence from which the jury could find her guilty of murder in the second degree. But she contends that there was also evidence, both from the state's witnesses and from her own testimony, from which the jury could have found her guilty of manslaughter on which the court did not charge the jury and that thus she was deprived of the right to have the jury say and find whether she was guilty of the lesser offense. State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556.
The appellant and the deceased had been married for thirty years and the appellant's evidence tends to show that their life as husband and wife had been rather turbulent and unhappy. There was evidence that he had threatened to kill her. To demonstrate manslaughter the appellant points to the events of their life as husband and wife as forming the background for her mental state with reference to her husband. She then stresses her testimony that her husband had come to her room several times during the night, turned on the lights and stood staring at her, as he frequently did. Finally when she requested him to turn out the lights and go to bed he said: Then, (using the facts as she relates them in her argument) she says her husband ran from the room
The appellant contends that these events and facts, the repeated threats, the conduct and appearance of her husband, the insulting, threatening words and his menacing and threatening attitude which...
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