State v. Finn

• Court: Missouri Supreme Court
• Writing for the Court: CONKLING
• Citation: State v. Finn, 243 S.W.2d 67, 326 Mo. 662 (Mo. 1951)
• Decision Date: 12 November 1951
• Docket Number: No. 42600,No. 1,42600,1
• Parties: STATE v. FINN

Page 67

243 S.W.2d 67

STATE v. FINN.

No. 42600.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1951.

John P. Ryan, Kansas City, for appellant.

J. E. Taylor, Atty. Gen., Lawrence L. Bradley, Asst. Atty. Gen., for respondent.

CONKLING, Presiding Judge.

Charles Henry Finn, Jr., defendant-appellant, has appealed from the judgment of the circuit court of Jackson County, wherein, upon the jury's verdict of guilty of murder in the second degree, he was sentenced to twelve years imprisonment in the state penitentiary for the fatal shooting of Vernon Zimmerman.

After his motion for new trial was overruled, defendant filed here a transcript of the entire record including a bill of exceptions containing all the evidence introduced, but he has filed no brief here. Upon this appeal we examine the record proper and the assignments made in defendant's motion for new trial. RSMo 1949, Sec. 547.270; State v. Weston, Mo.Sup., 202 S.W.2d 50.

As briefly as may be stated, it appears that at one time defendant and Zimmerman worked at the same factory. They had been good friends and rode together to work. Zimmerman moved near to defendant's home and thereafter was often in defendant's home. In June, 1949 Zimmerman was transferred to a night shift. He was attentive to and was often out with defendant's wife while defendant was at work. Naturally, trouble ensued between defendant and Zimmerman, and between defendant and his wife. Zimmerman told Mrs. Finn that he intended to kill the defendant. After a quarrel between defendant and his wife she moved to her mother's home. Thereafter they agreed to a reconciliation. Defendant's wife told defendant that Zimmerman had said he intended to kill defendant. Defendant knew Zimmerman's reputation for being a 'pretty rough customer * * * arguing and quarrelsome', and knew Zimmerman carried a knife. Zimmerman told defendant he had a permit to carry a gun and told defendant 'about cutting somebody up in Nevada, Mo.' On the day before the shooting Zimmerman drove quite slowly by defendant's house a number of times. Defendant started to go out 'to see what he wanted', but Mrs. Finn told defendant not to do so, because Zimmerman was going to kill him. Defendant testified he did not want any trouble and 'stayed in the house.'

On August 25, 1949, while defendant and his wife were eating breakfast there, Zimmerman came to the home of the mother of defendant at 1911 East 80th Street in Kansas City. He parked his car in front of the house. Zimmerman came to the door of the house and there said to defendant that he (Zimmerman) had given defendant's wife $20, and demanded the money and a shirt which Zimmerman claimed to have left there. Defendant asked his wife about the money. A quarrel ensued between Zimmerman and defendant. Defendant, and his wife, testified that Zimmerman there said 'he was going to cut my guts out and going to take my wife, too', and that he (Zimmerman) had been intimate with Mrs. Finn for three or four months. Those statements by Zimmerman to defendant were made in the presence of defendant's wife. Defendant and his wife then went to look for Zimmerman's shirt but could not find it. They then went out to Zimmerman's car (in which the latter) was then seated) and reported they could not find the shirt. Zimmerman then started swearing, threatened to cut defendant, put his hand in his pocket and started to get out of the car. Defendant then ran into the house and came back to the car with a 12 gauge shotgun.

Rose Bollinger testified that she was only 25 feet away from Zimmerman's car; that she saw Zimmerman seated at the wheel of his car talking with defendant and his wife who were standing by the car; that defendant left the car, ran into the house and returned immediately with a shotgun; that defendant 'stuck the gun through the window of the car' and shot Zimmerman as the latter sat at the wheel of the car; that the door came open and Zimmerman fell out and 'was laying stretched out' on the ground; and that defendant then 'went around to the front of the car and shot him (Zimmerman) again.'

Defendant's own testimony as to the shooting (in which he was corroborated by Mrs. Finn) was that when he came out to the car with the gun Zimmerman had hold of the arm of Mrs. Finn who was struggling to free herself; that Zimmerman was then trying to get Mrs. Finn to leave with him in his car but she refused to do so; that when defendant approached Zimmerman jumped out of the car, and said to defendant, 'I'm going to kill you right now, you son of a bitch. I'm going to cut your guts out and throw them in the street'; that he (defendant) then fired and Zimmerman stumbled; that Zimmerman then repeated the threat to kill defendant while continuing to come toward defendant; and that defendant again fired and struck Zimmerman. The court instructed on self-defense.

After the shooting the body of deceased lay in the street about four feet from his car. The gun shot wounds had caused his death. A knife and a pair of brass knucks were found in his pockets. Mrs. Finn testified that on August 24, 1949 (the day before the shooting) she told her husband (defendant) that during May, June, July and August, 1949, she had been intimate with Zimmerman.

In is first assigned in the motion for new trial that the information does not state facts sufficient to charge a crime and 'is vague, indefinite and uncertain'. Examination of the information filed shows that it charges that on August 25, 1949, defendant 'feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought, did make an assault' upon Vernon Zimmerman with a loaded shotgun inflicting a mortal gunshot wound from which the latter died. The information is in the form we have many times held sufficient. It sets out the method and means by which the death of deceased was effected by defendant and contains all the necessary elements to charge murder in the first degree. RSMo 1949, Sec. 559.010; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245(6).

Ten different assignments of defendant's motion contend that the evidence in the case 'was wholly insufficient to make a submissible case' for the jury. Those assignments will be considered together.

Defendant was charged with murder in the first degree. Under instruction 3 submitting murder in the second degree, the defendant was found guilty. The evidence discloses, and the jury had a right to find, that defendant was jealous and aroused over the relations which he was informed had existed between Zimmerman and Mrs. Finn; that defendant and Zimmerman had a quarrel; that defendant thereupon ran into the house and secured a gun; that he immediately returned and shot Zimmerman while the latter was seated at the wheel of his car; that Zimmerman fell out of the car and defendant again shot Zimmerman while the latter was lying on the ground and thus caused his death. It is clearly established and the jury could find from the evidence that defendant intentionally killed deceased with a deadly weapon. That is sufficient to sustain a conviction of second degree murder. State v. Bartlett, 359 Mo. 881, 224 S.W.2d 100; State v. Hogan, 352 Mo. 379, 177 S.W.2d 465, and cases there cited; State v. Reagan, Mo.Sup., 108 S.W.2d 391; RAMo 1949, Sec. 559.020.

Defendant's motion assigns as error the admission of Exhibits 2, 3, 5 and 6. Exhibits 2 and 3 are photographs of the scene of the killing taken just after the occurrence. These exhibits clearly were admissible. They tend to establish the conditions which there existed, where the deceased lay in relation to the automobile, the position of the car with relation to the house and the contested issue of fact as to whether Rose Bollinger could see what occurred from the window where she testified she was at the time the shots were fired. Exhibits 5 and 6, pictures of the deceased, show deceased was shot in the back of the head. From these exhibits the jury could infer deceased was not facing or advancing toward defendant when he was shot. They were admissible and clearly tend to disprove that defendant fired in self-defense.

It is likewise assigned that Exhibit 8 was erroneously admitted. This picture of the scene of the killing showing two ejected 12 gauge shotgun shells lying on the ground was clearly admissible. The picture and all shown therein were fully identified. Defendant used a 12 gauge shotgun. The shells were identified as 12 gauge shells and as having been ejected and lying on the ground at the place where they fell from defendant's gun. The admission of the exhibit was not error. State v. Martin, 349 Mo. 639, 162 S.W.2d 847.

Error is assigned in the exclusion of the knife and knucks found in the pockets of the deceased. These exhibits were at first excluded but the court later admitted them in evidence. Upon such action there is nothing to review upon the assignment.

Error is assigned in the admission in evidence of the written statement taken from and signed by defendant after he was arrested, because it appears that (a) defendant was not properly instructed as to his rights, (b) all persons present were officers, (c) defendant's counsel was not admitted to the room, and (d) the statement was not voluntarily made. The testimony in this record does not support the assignment. The statement was properly admitted.

Upon being asked defendant said to the police officers and the assistant prosecuting attorney, who were present when the statement was made, that he desired to make a statement. He was tole by the officers that he did not have to make a statement and that it might be used against him. Neither threats, nor inducements nor promises were used or made. Defendant was fully advised of all his constitutional rights. It clearly appears the statement was freely and voluntarily given. We find no testimony whatever to the contrary. That the persons present at the time defendant's statement was given were law...