State v. Fuller
| Decision Date | 10 June 1957 |
| Docket Number | No. 1,No. 45646,45646,1 |
| Citation | 302 S.W.2d 906 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Maurice L. FULLER, Defendant-Appellant |
| Court | Missouri Supreme Court |
Shaw & Smith, Clayton, for defendant-appellant.
John M. Dalton, Atty. Gen., Winston Cook, Sp. Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Defendant, Maurice L. Fuller, was charged with the murder (second degree) of Larry Fertig. Upon trial he was found guilty of manslaughter and his punishment fixed at a fine of $500 and imprisonment in the county jail for a period of twelve months. He appeals from the ensuing judgment.
According to the evidence for the State it appears that deceased died shortly after the termination of a fight which occurred between defendant and deceased, at about 2 a. m. on January 29, 1955, at the home of Hazel and Frederick Ballman in St. Louis County, Missouri. An autopsy revealed that deceased had numerous bruises and abrasions upon his face and head, it being of particular significance that there were deep bruises below each ear. In the opinion of the pathologist death was caused by a hemorrhage at the base of the brain. He was of the further opinion that the injuries in this area of the neck and skull could possibly have been caused by a fist, but he 'felt that it was a broader, a blunter object moving at a greater force that was responsible.'
For about a year before the instant occurrence defendant and Mrs. Ballman had been 'dating' with some regularity and upon occasions had been sexually intimate. Each was married and had children and during this time continued to live with his respective spouse. On the afternoon of January 28 defendant called Mrs. Ballman and asked where she would be that evening and she gave him the address of a tavern on Delmar Avenue.
Larry, the deceased, had been a friend of the Ballmans for years, and on the evening in question had eaten dinner with them at their home. After dinner they went out 'on the town' and spent the evening drinking beer in various taverns. They were driven from place to place by Mrs. Ballman in her car. At about 1:30 a. m. they returned to the Ballman home. Shortly before their arrival Mr. Ballman had noticed a car following them. The car stopped in front of the Ballman home and the defendant got out. Mrs. Ballman asked defendant to come in and have a drink. Mr. Ballman, however, told him to go on home.
The deceased entered the Ballman home first and apparently took off his topcoat and went into the bathroom. Mrs. Ballman entered the front door next with her husband just behind her. Defendant was following them. When Mr. Ballman reached the front door he turned and told defendant that he wasn't coming in. He then pushed him out of the doorway and slammed and locked the storm door. Defendant then kicked the storm door and broke out one or more of the panes of glass. Shortly thereafter Larry came out of the house and the fight between him and defendant occurred. Immediately after entering the house Mr. Ballman called the police and he and Mrs. Ballman remained in the house until the fight was concluded.
Mr. Bogstahl, who lived next door, was awakened by the noise and witnessed much of the fight. He stated that he first saw them fighting on the front porch but as the fight progressed they moved along the areaway between the two houses and the fight was concluded in the area at the rear of the Ballman residence. Perhaps the most significant testimony of this witness was his statement that at one time the participant answering the description of the defendant had the other person pinned against the wall of the Ballman residence 'punching him to the wall, back and forth, * * * ramming the other man against the house.'
At the conclusion of the fight Larry was either dead or unconscious and defendant returned to the front porch of the Ballman home. At about this time the police arrived and defendant was taken into custody and deceased was taken by ambulance to the St. Louis County Hospital. While it does not definitely appear in the transcript, we gather from all of the testimony that Larry was found to be dead upon arrival at the hospital.
Defendant was taken to the Webster Groves police station where he was questioned by police officers and David Godfrey, an assistant prosecuting attorney of St. Louis County. At that time defendant signed a written statement which was admitted in evidence at the trial. In this statement, after detailing his close relationship with Mrs. Ballman, defendant stated that he had spent the evening of January 28 drinking at a number of taverns; that about 1:30 a. m. he was driving on Highway 66 when he saw Mrs. Ballman's car pass. He saw no one except Mrs. Ballman in the car and followed the car to her home. After everyone got out of the cars he did not remember anything being said, but he followed the other three to the front door and further stated,
Defendant testified at the trial. He stated that on the occasion in question Mrs. Ballman invited him in for a drink and that Mr. Ballman told him to go on home as he pushed him out of the door; that after he had kicked the glass out of the storm door he turned to go to his car and someone hit him and knocked him down, his assailant then saying several times, 'I'll kill you first.' The fight then ensued. He stated further that he had met Larry Fertig casually about six months before and there had been no difficulties or ill feeling between them. The evidence also disclosed that Fertig was somewhat heavier than defendant.
The first point briefed by defendant is that the trial court erred in overruling his motion for a judgment of acquittal. In support of this contention it is said that the State's evidence failed to show who was the aggressor in the fight and, in fact, showed that defendant was engaged in the fight in the defense of himself.
In determining the sufficiency of the evidence to support a conviction we consider only the evidence favorable to the State and such favorable inferences as may be reasonably drawn therefrom, disregarding evidence that may be unfavorable to the State. State v. Shriver, Mo.Sup., 275 S.W.2d 304. Under the particular facts shown in the instant case we do not think it was essential for the State to prove that defendant struck the first blow after deceased went upon the porch. It should be noted that defendant had admittedly committed an act of violence in kicking the glass out of the storm door of the Ballman residence. Mrs. Bergman, the baby sitter, testified that immediately thereafter she saw a hand reach through the opening in the storm door and unlatch it. The jury could reasonably have found that the foregoing wrongful conduct on the part of the defendant had caused the deceased to go upon the front porch for some purpose connected with defendant's conduct, and, but for such acts the fight would not have occurred. Thus, the jury could reasonably have found that the defendant had brought on the encounter between himself and deceased.
In State v. Reeves, Mo.Sup., 195 S.W. 1027, 1029, the court stated: 'In giving this instruction the court failed to apply the principle, frequently recognized in this state, that although one may bring on or voluntarily enter a quarrel, and may entertain some unlawful purpose in doing so such as to commit a common...
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