State v. Fielder

• Decision Date: 10 June 1932
• Docket Number: 31727
• Citation: 50 S.W.2d 1031,330 Mo. 747
• Parties: The State v. O. C. Fielder, Appellant
• Court: Missouri Supreme Court

50 S.W.2d 1031

330 Mo. 747

The State v. O. C. Fielder, Appellant

No. 31727

Supreme Court of Missouri

June 10, 1932

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge.

Reversed and remanded.

Stratton Shartel, Attorney-General, and Edward G Robison, Assistant Attorney-General, for respondent.

(1) The indictment contains every essential averment to properly charge the defendant with murder in the first degree and follows approved precedents. Sec. 3982, R. S. 1929; State v. Gleason, 172 Mo. 263. (2) We are of the opinion that the instruction on self-defense as given by the trial court is erroneous under the facts testified to by the defendant in this case. The law on this subject is stated thus: If, in justifiable defense of himself against apparent danger of death or great bodily injury, a party unintentionally injures a bystander, the exigency excuses the act, and he is guilty of no offense. Or it is sometimes stated in this manner: If a defendant in trying to shoot his assailant, kills a bystander, he is not guilty of homicide, if the assault on him would have justified the killing of his assailant. 30 C J. 88, sec. 271; 13 R. C. L. 746, sec. 50; 1 Michie on Homicide, p. 450; 2 Brill's Ency. of Cr. Law, p. 1158; Wharton on Homicide (3 Ed.) 581, sec. 363; Spanell v. State, 203 S.W. 357; 2 A. L. R. 593; Butler v. State, 92 Ga. 603, 19 S.E. 51; State v. Stallings, 33 S.W.2d 916. (3) There was no error in permitting this witness to describe the wounds as superficial. It is a common word and was understood by the jury. It has no technical meaning. This class of evidence is frequently received from lay witnesses. 22 C. J. 554, sec. 655; Fulton v. Met. St. Ry. Co., 125 Mo.App. 245; Benson v. Smith, 38 S.W.2d 750; Heinbach v. Heinbach, 274 Mo. 316.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Defendant was charged by indictment in the Circuit Court of the City of St. Louis with murder in the first degree for the killing on March 27, 1930, of one Louis Tompkins. He was tried on October 29, 1930, found guilty of murder in the first degree and by the verdict of the jury was given the death penalty. From sentence and judgment upon the verdict he has appealed. The defense relied upon was that the shot which killed Tompkins, if fired by defendant, was fired by him in justifiable self-defense against an assault being made upon him by two women and that the killing of Tompkins was unintentional and without fault on his part. He has filed no brief in this court. The assistant attorney-general who briefed the case for the State has fairly and sufficiently stated the facts shown by the record, substantially as follows:

The evidence on the part of the State tended to prove that on and prior to March 27, 1930, Louis Tompkins and his wife Lottie resided at 3200 Pine Street in St. Louis, Missouri, and the defendant O. C. Fielder and his common-law wife Helen occupied a room in the Tompkins home as their tenants. Tompkins and his wife occupied three rooms on the first floor, the room next to the street being used as a bedroom. The middle room was the dining room and the back room was used as a kitchen. A hall ran through the house with a stairway therein leading to the second floor.

Louis Tompkins at the time of the shooting was five feet nine inches in height and weighed from 160 to 175 pounds. His age is not shown by the record. Lottie Tompkins was thirty-eight years old and weighed from 205 to 210 pounds. Helen Fielder was twenty-seven years old and weighed 181 pounds. The defendant was forty-five years old. His weight and height are not shown.

About 2:55 on the morning of March 27, 1930, police officers in the vicinity of the Tompkins home received word of a shooting there and rushed to the premises. When they arrived they found Helen Fielder lying in the front doorway dead or dying. Upon entering the hall and going into the dining room they found the bodies of Lottie Tompkins in the southwest corner and Louis Tompkins in the northwest corner of the room. Both were dead or dying. Louis Tompkins had a bullet wound in the back of his head entering on the left side, penetrating both hemispheres of the brain and lodging in the front of the right hemisphere. This wound was the cause of his death. The number of wounds received by Helen Fielder and Lottie Tompkins is not disclosed by the record. Evidently six shots had been fired, two of them having gone wild as there was one bullet hole in the wall about three feet from the floor opposite the dining room door and another near the ceiling in the northwest corner of the room. No weapons were found in the house. The dining room contained a davenport, chairs and a table in the center upon which were some glasses. The room was not disarranged with the exception that a clothes closet therein appeared to have been opened and articles of clothing taken down.

The police officers, after the discovery and removal of the bodies, made a search for the defendant. About 6:30 that morning they received word that there had been a shooting at 3205 Laclede Avenue, about three hundred yards from the Tompkins home. On arriving there they found defendant sitting on a chair in the front room. On examination they found he had shot himself three times in the right breast, one shot going through the body. Two of the bullets lodged in the body and were not removed.

Defendant was conscious and the police asked him what he had been trying to do. He replied that he had tried to commit suicide by shooting himself and when asked the reason for so doing replied: "I wanted to end it; I didn't want to live any longer." The officers then asked him if he had killed his wife, Tompkins and Mrs. Tompkins and he said he had killed them, that he wanted to kill them all, and stated as his reason that Mrs. Tompkins had had his wife there for immoral purposes; that he had tried to get his wife away and she refused to go; that he preferred to kill her rather than have her remain there; that after he shot the women Tompkins tried to take the pistol away from him and in the struggle he shot him.

The officers obtained the gun that defendant had used in shooting himself from defendant's cousin, Ben Hand. Defendant said he had not shot the three people with that gun but had thrown away the gun he had used in killing them.

The house where defendant was found belonged to Ben Hand. Hand, his wife and son testified that defendant had frequently come to their place and stayed all night; that about 5:30 on the morning of March 27, 1930, he came to their house, changed his shirt, went to the back yard and shot himself three times, returned to the front room and had just come into the room when Hand called the police.

The evidence further shows that Mr. and Mrs. Tompkins and Helen Fielder were fully dressed at the time of the shooting. The State was unable to produce any eyewitness. It appears that a certain Sargie Robinson and one Hardy had been present but at the time of the trial Mrs. Robinson was dead and Hardy could not be found. The State's evidence consisted of the finding of the bodies and things observed by the police officers on their arrival at the Tompkins home and the statements of the defendant made to the officers after he was arrested.

Defendant took the stand in his own behalf and testified in substance that he and Helen Fielder were rooming at the Tompkins place, had lived there for several months and that he operated a sandwich stand in the neighborhood. He testified that in going to and from his business he carried a revolver for protection against robbers as he frequently had money on his person; that on the night of March 27, 1930, he came home about 11:30; that he and his wife had previously had trouble and she had moved from his room to the basement that when he came home that night he went upstairs to his room, washed, changed clothes and came downstairs intending to go to his cousin's and arrange about securing a room there as his rent at Tompkins' was up that night; that he was upstairs thirty minutes or longer and came down and met his wife, Helen, standing in the doorway leading into the dining room; that he told her he was leaving and that they then became engaged in an altercation over his leaving and over Helen's conduct with other men and while so quarreling they stepped into the dining room; that Mrs. Tompkins then appeared on the scene and a little later Mr. Tompkins; that he explained to Mr. Tompkins why he was leaving; that there was no ill feeling or hostile demonstration whatever on the part of Mr. Tompkins who then went to another part of the room; that one word brought on another and Helen called him a liar and drew a pistol from her dress and told him he was not going to leave and that she was going to kill him; that she tried to shoot him; that at the time Helen drew the pistol Mrs. Tompkins grabbed him by his coat collar and commenced to beat him with a beer bottle; that thereupon, in order to defend himself, he seized the pistol which Helen had in her hand, drew his own revolver and began to shoot; that he must have shot six times; that he did so because Helen stated she would kill him, drew her revolver, attempted to release the safety and shoot him while Mrs. Tompkins continued to beat him with the beer bottle; that he fired in defense of himself against the assault then being made upon him by Helen and Mrs. Tompkins; that he did not know Tompkins'...