State v. Foster

• Decision Date: 10 October 1960
• Docket Number: No. 2,No. 47214,47214,2
• Citation: 338 S.W.2d 892
• Parties: STATE of Missouri, Respondent, v. William FOSTER, Appellant
• Court: Missouri Supreme Court

Page 892

338 S.W.2d 892

STATE of Missouri, Respondent, v. William FOSTER, Appellant.

No. 47214.

Supreme Court of Missouri, Division No. 2.

Oct. 10, 1960.

Morris A. Shenker, Lawrence J. Lee, Bernard J. Mellman, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John W. Inglish, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

Upon a charge of murder in the second degree in shooting and killing Louise Massey the appellant, William Foster, has been found guilty of manslaughter and his punishment fixed at nine years' imprisonment.

This is the background in which Louise came to her death and the context in which some of Foster's claims of error must be considered: William Foster and Louise Massey and her three children, Larry, Linda and Janice, all lived together in a second-floor apartment at 819A Hodiamont Avenue. In the course of the trial Louise was referred to as Foster's 'wife' and he was often referred to as 'the father' of the children. According to Foster all his pay checks went to Louise and they lived together in peace and harmony as husband and wife. Foster says that he loved Louise and of course did not intentionally shoot her. He says that they lived together as husband and wife for three or four years, 'all together' he had been 'staying with' Louise 'off and on' since 1951, but 'We didn't get married because I wasn't--never had get to it.' He was the father of little Janice but he was not the father, 'Not as I know,' of Larry, age 12, or of Linda, age 10. As to his living in their home Linda says, 'He came to stay sometimes, but he didn't stay there all the time.' She says that she saw 'trouble' between Foster and Louise two or three times and, she said, 'He sometimes would hit her.' Larry said that he had heard Foster threaten his mother, threaten to kill her but 'the next morning they was playing.' Larry saw Foster hit his mother 'one time when they was fighting' and once, 'He hit her with a shoe.' Foster said, 'We had had quarrels. We never had much of a fight. One time she hit me on the head with an umbrella and I hit her on the behind with a shoe.'

On January 30, 1958, Foster, Louise and the children had dinner in the apartment and about 7:30 Foster went to see the Smarts about a lamp and Louise went to the tavern a half block away. The tavern was a gathering place for Foster, Louise and their friends and two nights a week Louise worked in the tavern as a waitress. Foster returned home about 8:30 and had Larry bring his shotgun, some shells and a bottle of whiskey. His shotgun had been 'jamming' and he cleaned it and drank part of a glass of whiskey. Finally he tested 'the rejector' with some shells, he was planning to go rabbit hunting on Sunday. He reassembled the gun except for 'the locking cap' and left it on the couch loaded with one live shell, number 4 shot. After warning Larry to 'not bother with the gun' he went to the tavern where he sat with Louise and their mutual friends. He had, however, but one drink at the tavern and after visiting awhile told Louise he was going on home. She said, 'I will be up right after a while.' When Foster got to the apartment the children were in bed, he went to the back and 'hollered at the dogs, and went on in the front room, and started fooling with the gun.' Within fifteen or twenty minutes Louise came home and awakened the children and took them to the bathroom. When she came in the front room she said, 'What's wrong with you?' Foster replied, 'Nothing.' She asked what he was doing with the gun and he told her he was going hunting on Sunday. He says they 'did not have a quarrel. We had a discussion' about whether he sould go hunting on Sunday. Finally she said, 'Don't argue about it and let's go to bed.' He said, 'O. K., as soon as I get the gun back together' and 'I taken the gun, and set it up, and went to put the gun back together, and when I did, it went off,' he looked at Louise 'and her face was all torn up.'

Larry's room was next to his mother's room and he could not see into the front room but he was awake when Foster came home the second time and heard him when he 'told the dogs to shut up' and 'it sounded like he was clicking the gun' in the front room. After his mother came home he heard her ask 'what was wrong' and 'He asked my mother what some lady said down to the restaurant, where she worked at.' And, he said, 'My mother told him she didn't say nothing, but just told her, 'Better play safe and go home.'' The next thing Larry heard was his mother say, "Don't point it. It might go off" but 'he told her he didn't care.' Then he heard Foster say, "Look at the barrel of it" and 'Then he told my mother he was going to kill her.' Larry heard the shot and immediately ran down the steps and to his grandmother's two blocks away.

In connection with Larry's testifying as a state's witness it is claimed that the court erred in unduly restricting the defendant's right to cross-examine him 'concerning the conduct and relationship between this witness and the defendant and concerning the reasons for the resentment by this witness toward the defendant.' The defendant called as a witness Officer Rice and it is claimed that the court erred in sustaining objections to the officer's testimony relative to prior thefts by Larry, as to his having been apprehended by police officers, 'as to his having been placed in the custody of the defendant, and as to the discipline meted out by the defendant upon the witness.' The bias or hostility of a witness is never irrelevant, bias, interest and hostility bear on credibility and if denied by the witness may of course be shown, the details of the collateral inquiry being subject to the court's discretion. State v. Pigques, Mo., 310 S.W.2d 942; State v. Winn, Mo., 324 S.W.2d 637; State v. Rose, 339 Mo. 317, 96 S.W.2d 498. But upon this record the defendant's right to cross-examine Larry was not unfairly restricted and his right to prove Larry's hostility and the reasons for it was not improperly limited. As to his resentment of the defendant there was in the first place the anomalous circumstances in which Larry was forced to live and to which Foster was indeed a contributing factor. Larry said that he preferred to live with his grandmother and he readily conceded his resentment of Foster and the ostensible reasons for his feeling. On cross-examination he said that 'his father' had spanked him twice 'a short time before this' (the shooting) and he didn't like it. The spankings were, in the words of defense counsel, to 'change your habits.' When Foster testified he was permitted to say that with Louise's knowledge he had 'whipped Larry about a week before this happened about some money.' Thus Larry's feeling or resentment toward the appellant was before the jury and in the circumstances of this record there was no abuse of discretion and the defendant was not unfairly restricted in his right of cross-examination and proof. State v. Winn, supra; State v. McLachlan, Mo., 283 S.W.2d 487.

Also in connection with the witnesses and the evidence, the appellant contends that he was improperly restricted in his right of cross-examination and proof in two other respects. When Officer Adelmann arrived at the apartment at 11:30 Foster met him at the top of the stairway. He pointed to the front room and 'He said he shot his wife.' Officer Berner...