State v. Fultz

• Decision Date: 03 July 1940
• Docket Number: No. 37011.,37011.
• Court: Missouri Supreme Court
• Parties: STATE v. FULTZ.

142 S.W.2d 39

STATE v. FULTZ.

No. 37011.

Supreme Court of Missouri, Division No. 2.

July 3, 1940.

Appeal from St. Louis Circuit Court, Division No. 12; Robert L. Aronson, Judge.

John Fultz was convicted of murder in the second degree, and he appeals.

Affirmed.

Roy McKittrick, Atty. Gen., and Ernest Hubbell, Asst. Atty. Gen., for respondent.

No appearance for defendant.

COOLEY, Commissioner.

Appellant, defendant below, was convicted of murder in the second degree for the killing of one Milton Gordon. The jury assessed his punishment at twenty-five years imprisonment in the penitentiary. The trial court overruled defendant's motion for new trial but of its own motion reduced the punishment to fifteen years imprisonment and after allocution sentenced defendant accordingly. He appealed. He has filed no brief in this court but after having filed his motion for new trial in the circuit court he filed there a "memorandum," or it might be called suggestions, in support of said motion, which was considered by the court in passing on the motion for new trial and which will be referred to hereinafter. It was not, however, part of the motion for new trial and is not to be so considered.

Gordon was killed by defendant about 6:15 A. M. on November 25, 1937, at the Golden Lily Tavern in St. Louis, a place frequented by cab drivers, of whom Gordon was one. Defendant was a shrimp peddler, who also frequented the place, selling his shrimps. He was often referred to as the "shrimp man." He and the deceased had known each other for several years. There was no particular hostility or bad feeling between them but Gordon would sometimes "tease" defendant and snatch shrimps out of his basket, to defendant's annoyance because the shrimps cost him money, of which he had very little. However, there is no evidence of quarrels or serious bad feeling between the parties prior to the fatal encounter above mentioned. On that morning they met in the Golden Lily Tavern. The state's evidence tended to show that defendant entered the tavern and set down his basket of shrimps on a table or window ledge. Gordon, who had been in the tavern and had momentarily stepped out, reentered, picked up the basket of shrimps and walked up and down the room saying "Shrimps, shrimps, who wants to buy some shrimps?" It appears from the state's evidence he was meaning to tease or torment defendant. Defendant drew an ice pick from a scabbard at his belt and stabbed Gordon twice in the chest and once in the forehead, inflicting mortal wounds from which Gordon very soon died. Defendant was soon thereafter arrested and at the police station made (voluntarily) a written statement, as follows:

                     "Office of Central Police District
                                    "November 25, 1937
                "Statement of John Fultz, colored, 4209
                     Cote Brilliante Avenue
                

"My name is John Fultz. I am 24 years old, single, was born in East St. Louis, Illinois. I live at 4209 Cote Brilliante Avenue, and I peddle shrimp around taverns and places for a living. About three o'clock in the morning on November 24, 1937, when I was in the Golden Lily Tavern at No. 2044 Market Street, Milton Gordon, who drives a Central taxicab, stole three or four dozen shrimp out of my basket, which I had setting on top of a table in the place. Then he told me he took the shrimp, and I told him he better not bother my basket any more. He told (sic) he'd cut my God damn throat with a pocket knife if I said anything and he left the place with some passengers for his cab. About ten minutes after five o'clock this morning, I went back in the Golden Lily Tavern selling shrimp. About ten minutes after I got in the tavern, Milton Gordon came in. He took my basket of shrimp off a table and walked outside. Then he came back in and he said to me, `You ain't so slick. I took your basket and you didn't know it.' Then he reached in the basket and he took two hands full of shrimp and he handed them to a little light brown skin waitress. I then took an ice pick I carry in a scabbard on my belt and I stabbed Milton with it. He said he was going home and get a gun and he ran out of the place, and fell down outside. I told the people in the tavern to call up the Police and get an ambulance to take Milton to the Hospital because he was hurt. Then a police officer came by and arrested me. This is all I know about the stabbing. I have read the foregoing statement and it is true and correct. I have been given an opportunity to make any correction or additions I saw fit to make.

                            "(Signature) John Fultz."
                

We omit further details of the state's evidence because on the record before us there can be no doubt but that the evidence justified submission of the crime of murder in the second degree. We need not consider whether or not there was evidence of deliberation sufficient to justify submission of murder in the first degree, since defendant was not convicted of that degree of crime.

Defendant did not testify. As well as we can gather from the record, the defense he relied upon was self defense. There was evidence tending to show that in his business of preparing for sale and selling shrimps he customarily carried an ice pick—the lethal weapon he used in the homicide—in a scabbard attached to his belt. That was for the purpose of chipping ice at various places and from time to time in order to preserve the shrimps in salable condition. There was no evidence tending to show that he carried it as a weapon or for unlawful purpose. The evidence relied upon to show self defense was the testimony of a Mrs. Effie Taylor (colored). In brief, she testified that she entered the Golden Lily and sat down at a table by defendant, whom she knew; that defendant went over to the counter to get a bottle of soda water and while he was so doing the deceased took some shrimps out of defendant's basket; that she said to him "You're not counting them" and he said "They don't have to be counted." Testifying further and speaking of defendant as the "shrimp boy" and of deceased as the "cab boy" she said: "So when the shrimp boy come back to the table where I was sitting I told him the boy had taken some shrimps out of your basket. He said `He's always bothering into my basket.' * * * When the shrimp boy went back to get another bottle of soda water he (the `cab boy') come and took the basket and carried it outside. * * * He come back in and was passing them around. * * * After he got through passing them around the shrimp boy * * * gets up and goes over to him. He said `You have been passing the shrimps around, * * * how about my pay for my shrimps?' And he (deceased) said, `Those tainted shrimps, I wouldn't give you a dime for a whole bushel of them.' He (defendant) said `I have to pay dear for them, I had no sales for them tonight, I had to buy $3.00 worth of shrimps, I'll give you a break, I'll let you have them for $2.50.' He (deceased) said, `No, I'm not giving you nothing for them.' He (defendant) said, `Don't do this, that's the way I make my living, to sell them; pay me for my shrimps.' He (deceased) said, `I'll pay you with this knife,' and he commenced rushing the shrimp boy and he (shrimp boy) went back off from him. He said, `Don't do that, don't do that.' When he got middle ways of the counter where they were at his voice commenced changing like he was half crying * * * and so this boy (deceased) rushed him with the knife, and he (defendant) was dodging back and walking backwards and about three more boys were following him around and—I don't know—I seen another taller boy go in his right pocket and take a knife out and was trying to open it on the side of him, at that time two boys had a knife, and the shrimp boy gets the ice pick, * * * and the (cab) boy turned and grabbed a chair * * * so, the man of the place, he didn't have time to get any further than the corner of the counter to go into the floor show * * *." She then described how, much excited, she left and shortly later came back to learn if, as she had been informed, it was the shrimp boy who had been killed. In answer to further questions she said the shrimp boy "defended himself" by "striking at the (cab) boy with the ice pick." She further testified that as defendant backed away from deceased and said "I bought $3.00 worth of shrimps, I'll give you a break" the "cab boy" said, "`I don't need no break'— he kept on—he said `I'll pay you with this knife.' He started up on the boy with the knife and he went backing up until he got middle ways of the counter, and his voice commencing to change, he came up with the ice pick * * * about three more boys was following him, and one tall boy came out with his knife with the right hand and tried to open it on the side." Further on in her testimony, on cross examination, this occurred:

"Q. Did anyone else besides the boy that was killed have a knife? A. Yes, sir.

"Q. Two men had knives? A. Yes, sir.

"Q. Am I right in that, or did more than two have knives? A. Well, I don't know whether others had a knife or not, but one came out with a knife and tried to open it on the side of his leg.

"Q. That was someone different than the boy that was killed? A. Yes, the boy that was killed, he was already striking at this boy with the knife."

Defendant offered to prove by a witness, Liberman, a pawnbroker, that defendant had been in the habit of pawning clothes with the witness and later redeeming them and that a day or so before the homicide defendant had thus pawned some of his clothes with the witness. The court sustained the state's objection to such offered proof on the ground of irrelevancy.

As we have said defendant has filed no brief here, but did file in the trial court a "memorandum" in support of his motion for new trial, which has been transmitted to us with the record herein (perhaps with intent that it is to be treated as a brief for defendant here. At any rate, we shall notice it.) In that "memorandum" defendant urged...