State v. Gallagher

• Decision Date: 04 June 1920
• Docket Number: No. 21926.,21926.
• Citation: 222 S.W. 465
• Parties: STATE v. GALLAGHER.
• Court: Missouri Supreme Court

222 S.W. 465

STATE v. GALLAGHER.

No. 21926.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

William Gallagher was convicted of second degree murder, and he appeals. Affirmed.

On April 10, 1917, the circuit attorney of St. Louis, Mo., filed, in the circuit court of said city, an information charging defendant William Gallagher and Mrs. Rose Parker, jointly, with murder in the first degree for the killing of one William Parker, husband of Rose Parker aforesaid, in said city, on March 10, 1917. On April 19, 1917, each of the above-named defendants were arraigned, and each entered a plea of not guilty. On October 22, 1917, a severance and separate trial was granted defendant Rose Parker. Thereupon the state elected to try her first. On January 15, 1918, a change of venue was granted defendant William Gallagher, and said cause sent to Division 12 of said court. The trial of defendant Gallagher was commenced in the circuit court aforesaid on February 27, 1918. On February 28, 1918, the trial of defendant Gallagher was completed, and on said date the jury returned into court their verdict, as follows: "

"We, the jury in the above-entitled cause, find the defendant guilty of murder in the second degree and assess the punishment at imprisonment in the penitentiary for ten years.

                            "John D. Fidler, Foreman."
                

On March 5, 1918, defendant filed his motion for a new trial, which was continued from time to time until January 27, 1919, when the same was overruled. On January 30, 1919, defendant filed his motion in arrest of judgment. On the following day said motion in arrest of judgment was overruled, and defendant duly sentenced as required by law. The facts in the case are substantially as follows:

The deceased, William Parker, had resided as 1422 Sulphur avenue, in the city of St. Louis, for about 4 years prior to his death. He was a large man, about 3 feet and 4 inches tall, weighing about 240 pounds, and was employed by parties engaged in the furniture moving business. He was paid about $15 or $20 per week for his services, was a steady worker, and bore a good reputation. His family, consisting of his wife and two small daughters about 11 and 13 years of age, lived with him in the little 3-room house at 1422 Sulphur avenue, aforesaid. Up to within a few months of his death he permitted said family to purchase necessary supplies at stores near by, having charge accounts at said stores, and promptly paid such bills at the end of each week.

The house in which they lived was owned by the defendant, Gallagher. They paid him $9 per month rent for the same. Gallagher was a man about 50 years of age, and had been divorced by his wife shortly after the Parkers moved into his property at 1422 Sulphur avenue. For about 3 years prior to the shooting of Mr. Parker said Gallagher had boarded at the Parker home, which was but a block or two from his own house. During those 3 years Gallagher and Mrs. Parker were frequently seen out together on the streets of evenings and in the parks in the afternoon, and there was considerable gossip among their neighbors concerning their intimacy.

In the latter part of December, 1916, several neighbors saw Mr. Parker come home one evening and chase Gallagher out of the house into the street, where he beat said Gallagher and drove him away. Neoma Parker, the oldest daughter, on this occasion carried Gallagher's hat and coat down the street to him after this affray. The defendant tries to explain this by stating that there was no trouble between him and Parker on that occasion; that Parker was drunk, was threatening the family and wanting more liquor, and he was merely keeping Parker from hurting some of the family and from obtaining more liquor. The daughter Neoma attempts to corroborate his story, but her testimony is worthy of but little credence.

About the 5th day of February 1917, Mrs. Parker, accompanied by Gallagher, went to the office of Assistant City Counselor Sadler and filed a complaint against. Parker, charging that he frequently came home drunk and beat and abused her and the children and threatened to kill her. Gallagher displayed so much interest in the matter that Mr. Sadler inquired as to the ground for his concern, and was told that Gallagher was a cousin of Mrs. Parker. None of the neighbors had ever heard them mention this relationship before. Neoma Parker testified that Mr. Gallagher's mother and her grandmother were first cousins. Neoma also stated that her father beat and mistreated her. However, it developed that he probably punished her for taking her little sister out with her and having intercourse with some boys. She admits the illicit act, but states they were lured away by another girl.

Sadler notified Parker that he had better stay away from his home for a while, and issued a summons for him to appear and answer the charge filed against him. Parker called at Sadler's office and explained the situation to the latter, and then Sadler notified Gallagher and Mrs. Parker "to stay away from each other." They then called at his office and dismissed their complaint against Parker, and Sadler again told Gallagher to stay away from Mrs. Parker.

On the 17th of February, 1917, Mrs. Parker filed suit for divorce. On the 5th of March, Gallagher had a cot placed in the front room of the Parker home, and slept there until the night of March 10th, when Mr. Parker was killed. About 9 o'clock p. m. of the last-mentioned date, Mr. Parker came to the back door of his home and asked admittance. He entered and an altercation took place, during which a window was broken out and two pistol shots were fired. One of these shots entered Parker's back, pierced the lungs and heart, and lodged in the muscles of his chest.

The pistol with which the shooting was done was later found hidden in the yard back of the Parker home. The state offered evidence tending to show that the pistol was the property of the defendant; that defendant had been intimate with the wife of the deceased; that there had been some trouble between them; and that defendant wanted to get Parker out of the way so that he could live with Mrs. Parker. The testimony offered for defendant tended to contradict this, and show that there was no trouble between Parker and Gallagher; that the latter was a man of good reputation; that on the night of March 10, 1917, Parker came into the house and attacked his wife, and she got hold of the pistol and shot him in self-defense.

The instructions given and refused, the rulings of the court in regard to the admission and rejection of evidence, and the complaints of defendant's counsel as to the alleged improper remarks of the prosecuting attorney in the presence of the jury will be considered in the opinion as far as may be deemed necessary.

Defendant in due time appealed the cause to this court.

Charles P. Johnson, I. A. Rollins, and Jos. G. Williams, all of St. Louis, for appellant.

Frank W. McAllister, Atty. Gen., and C. P. Le Mire, Asst. Atty. Gen., for the State.

RAILEY, C. (after stating the facts as above).

I. Defendant in his brief assigns 14 errors alleged to have been committed by the trial court to his prejudice, which we will consider as far as necessary in the order presented:

1. "The court erred in giving the instruction on murder in the first degree." No reason is given for challenging' the validity of said instruction. It is not even set out in appellant's brief. It is numbered 2, and clearly defines murder in the first degree. As the jury found defendant guilty of murder in the second degree, it is unnecessary to consider said instruction further. State v. Baugh, 217 S. W. loc. cit. 280, and cases cited.

2. "The court erred in giving instruction on murder in the second degree." No mention is made in appellant's brief in respect to said instruction, aside from the foregoing assignment of error. The instruction complained of is numbered 4, and properly declares the law as to murder in the second degree. State v. Bauerle, 145 Mo. 18, 46 S. W. 609; State v. Moxley, 115 Mo. 644, 22 S. W. 575.

3. "The court erred in refusing to give the instructions offered by the defendant." The instructions thus refused are designated in the record as A, 13, D, and E. The propositions involved therein are fully covered by instructions 5, 7, and 13, given by the court. This was a sufficient ground for refusing same. State v. Driscoll, 235 Mo. loc. cit. 385, 138 S. W. 527; State v. Stackhouse, 242 Mo. loc. cit. 448, 449, 146 S. W. 1151. Appellant has made no effort, in his brief, to defend said refused instructions. Upon a careful consideration of same, we do not...