State v. Foran

• Citation: 164 S.W. 215,255 Mo. 213
• Parties: STATE v. FORAN.
• Decision Date: 06 January 1914
• Court: United States State Supreme Court of Missouri

164 S.W. 215

255 Mo. 213

STATE v. FORAN.

Supreme Court of Missouri, Division No. 2.

January 6, 1914.

Rehearing Denied February 17, 1914.

1. CRIMINAL LAW (§ 1170½) — APPEAL — HARMLESS ERROR.

Allowing defendant to be asked, on cross-examination, if commission men did not offer him a position, which he refused, was harmless; he not only having answered, "No," and not been contradicted, but the offer, if made, being complimentary to him.

2. HOMICIDE (§ 325) — APPEAL — REVIEW — FAILURE TO INSTRUCT—COMPLAINT BELOW.

Defendant may not complain on appeal for the first time that no instruction was given on manslaughter, though a reversal may be granted therefor, notwithstanding the court's attention was not called to the particular point in the motion for new trial.

3. HOMICIDE (§ 309) — INSTRUCTIONS — DEGREES OF CRIME—EVIDENCE.

Manslaughter not being consistent with the theory of the evidence of the state, cold-blooded murder, or that of defendant, accidental killing, an instruction thereon was not necessary.

4. HOMICIDE (§ 340)—HARMLESS EVIDENCE— OMISSION OF INSTRUCTIONS.

The conviction having been of first degree murder, though there was also an instruction on second degree murder, the jury evidently would not have considered the idea of manslaughter had they been instructed thereon.

5. CRIMINAL LAW (§ 1043)—APPEAL—REVIEW —EXCLUDING QUESTIONS—OFFERS.

That there may be a review of the sustaining of an objection to a question, defendant must have made an offer in the trial court showing what the answer would have been.

6. HOMICIDE (§ 286)—MURDER—INSTRUCTIONS —"WILLFULLY"—"ON PURPOSE."

"On purpose" need not be used in instructions on murder; "willfully," synonymous therewith, being used.

7. HOMICIDE (§ 297) — INSTRUCTIONS — THREATS.

The instruction that, though, prior to the time she was shot, deceased had made threats against defendant, this alone does not justify, excuse, or palliate the offense of murder, if at the time she was shot she made no threats against, and no attack or assault on, and no demonstration of violence against, defendant, is proper.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Don Foran was convicted of murder, and appeals. Affirmed.

Defendant was convicted of murder in the first degree, and sentenced in accordance with the verdict to imprisonment for life. He shot and killed his wife, Gertrude, in their room in the second story of a rooming house in Kansas City, about midnight, July 23, 1912. A window in their room opened just above a roof from which a stairway led to the alley below. According to the testimony, he was about 22 years old at the time of the trial, and first met the deceased about two years before in a sporting house. She was then living with one Ed Griffith. Defendant abandoned his home with his mother and sister and took up with Gertrude, and about a year later married her. He stated on the witness stand that he lived a sporting life, and "gambled all over town." About 8 o'clock that night he procured a revolver. He testified that he got it at her request, as she was uneasy about staying alone at times, and that he delivered it to her. Her father at times called and spent an evening with her. On the night of the killing defendant and his wife were in the room, the defendant going out and returning once or twice. About 11:30 a person who had been in the room with them left, and she was heard to say, "Good night, daddy." A few minutes later a shot was heard by the landlady and by a roomer, and also by three men at the mouth of the alley. The landlady heard her say, "Oh, don't!" followed by a scream; then four more shots were fired in rapid succession. Immediately afterward she was found dead, with a bullet wound in each breast and one in the back of her neck. He was not seen to pass through the hall. The window was open. A pistol was on the outside stairway. He, emerging from the alley, encountered the three men who had heard the shots and the scream, and who also heard a noise on the roof, and said to them that he had killed two in the alley. He went to the room of Thomas H. Miller, and told him that he had "shot Gertrude," and wanted some carbolic acid to kill himself. He was without hat, coat, or shoes. When arrested a few moments later, he "showed fight."

Four witnesses testified to various occasions when he told his wife to go out on the streets and get the money, or he would kill her, or "kick her."

Ben Portman testified that defendant and his wife quarreled about some money, and that she "pulled out a gun and threatened to fix him if he didn't give her the money."

Ben Berkowitz testified that about a month before the murder the deceased made threats against the life of the defendant. Then the following occurred on the trial:

"Q. Where was that, and what was said?

"Mr. Curtin: We object to what was said. The testimony of the defendant here is to the effect that this was an accident; that he had nothing to do with the shooting, therefore the testimony of any threats is wholly immaterial.

"The Court: Did you tell the defendant of these threats?

"A. No, sir; I told a friend of his, a bartender.

"The Court: Did you tell the defendant?

"A. No, sir.

"The Court: He says he didn't tell him.

"Mr. Kimbrell: The defendant said he had been told by this man.

"The Court: I will sustain the objection.

"Mr. Kimbrell: Exception. That is all."

The defendant's testimony as to the killing was as follows: "I had an application to go to work on the fire department, and I asked her if she would wake me up in the morning so that I could have the doctor's examination and be prepared to go on. I want to get on it right away. She didn't seem to want for me to take it. She said she did not want me to take it at all, and there was a little argument came up about her talking to Ed Griffith. I told her to never talk to him, because he wouldn't do her any good, a fellow she lived with. She says: `It is very funny you would keep me from talking to everybody. You are going to work on this fire department and all this. You won't go to work anywhere, because we are going to leave together' —and she started to fire, and I jumped up and grabbed her, and she fired two shots at me, and we were wrestling with the gun. I don't know how many shots went into her. The rest of them went into her through this struggle." During the cross-examination the following occurred:

"Q. Isn't it a fact that...