State v. Garrett, 44339

• Court: Missouri Supreme Court
• Writing for the Court: LEEDY
• Citation: State v. Garrett, 282 S.W.2d 441 (Mo. 1955)
• Decision Date: 12 September 1955
• Docket Number: No. 2,No. 44339,44339,2
• Parties: STATE of Missouri, Respondent, v. Cora GARRETT, Appellant

Page 441

282 S.W.2d 441

STATE of Missouri, Respondent, v. Cora GARRETT, Appellant.

No. 44339.

Supreme Court of Missouri, Division No. 2.

Sept. 12, 1955 Motion to Transfer to Court En Banc Denied Oct. 10, 1955.

C. W. Terry, James P. Roach, Camdenton, for appellant.

John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.

LEEDY, Presiding Judge.

Cora Garrett (hereinafter called defendant) was charged with murder in the first degree in having shot and killed her former husband, Loyd Dawson, in Camden County on July 6, 1952. Tried in the circuit court of that county, she was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for a term of five years, and she appeals. The points relied on for reversal are: (1) That 'the verdict is against the evidence, and there was no substantial evidence to support the verdict;' (2) that the 'verdict is against the law as declared in the instructions;' (3) that the court erred in instructing on manslaughter; and (4) error in qualifying a panel of only 24 jurors instead of 30, thus improperly limiting the number of defendant's peremptory challenges.

Since defendant concedes 'that under the evidence adduced at the trial, the defendant was either guilty of murder in the first degree, or else was innocent of the charge by reason of having shot the deceased by accident or in self-defense of her person and home,' the particular facts and circumstances surrounding the killing are of no importance in determining the questions presented on this appeal, and hence will not be noticed in detail.

Dissatisfied with defendant's statement of facts, the state prepared its own, but in so doing wholly omitted compliance with 42 V.A.M.S. Supreme Court Rules, Rule 1.08(c) governing specific page references. We ignore the statement not alone because of this violation, but also because the size of the transcript forbids any such foray upon the time of the court as would be involved in the process of verifying the facts thus asserted.

It does appear, however, that defendant and deceased had been drinking in a tavern at Macks Creek during the late afternoon and early evening preceding the homicide. Some disagreement arose, as a result of which she was compelled to, or at any rate did, walk the distance from the tavern to the premises (some seven miles in the country) where the killing occurred, which was the home occupied by them prior to their then recent divorce, and where defendant was living with a daughter of deceased by a former marriage. There were no eyewitnesses other than defendant and deceased, and for our purposes the following skeletonized outline of her version will suffice: When she reached home, it was dark, and she noticed a light on in the kitchen. She entered through the front door, and 'he [deceased] was swearing and throwing things in the kitchen;' that as she came through the living room and the dining room she 'got the gun beside the dresser to make him leave, and I walked into the [kitchen] door, he was standing by the cabinet, he put his hand in his right pocket and lunged at me and I don't know what happened;' then when he lunged at her she stepped back, and that is when the gun went off; that she did not have it at her shoulder, or in shooting position, and did not have her hand near the trigger. Her further testimony was vague, equivocal and inconsistent on the question of whether she acted in self-defense, or whether the gun discharged accidentally.

Various witnesses testified to statements made by defendant shortly following, and at the scene of, the homicide, of which the following are typical examples: 'Sheriff, I finally had to kill him. * * * He lunged at me, and I shot him.' 'You made me do it; I didn't mean to shoot you, but you made me shoot you.' 'You made me shoot you, Loyd, and I didn't aim to do it.'

The court instructed on murder in the second degree, manslaughter, self-defense and accident, and, as stated, the jury found defendant guilty of manslaughter. As to those portions of her assignments I and II complaining that 'the verdict is against the evidence * * * [and] against the law as declared in the instructions,' we must say, as has been said time, and time, and time again, that they are too general to preserve anything for review. See extensive annotation following Sec. 547.030, 39 V.A.M.S. 512, 558-561, notes 106-111. The remaining and good portion of one of these assignments (that 'there was no substantial evidence to support the verdict') would ordinarily necessitate a probing of the facts, but not so here, in view of defendant's admission that under the proofs adduced the state made out a case of murder in the first degree. What defendant urges under this assignment is that there were no facts in evidence sufficient to reduce the grade or degree of the homicide from first degree murder to manslaughter, and hence no evidence to support her conviction of the latter offense. For like reason it is charged that the court committed reversible error in instructing on manslaughter.

These precise points have been so often ruled adversely to defendant that citations would seem to be unnecessary. We are not asked to reexamine these precedents (indeed, they are not referred to in either brief), but inasmuch as they are controlling in the circumstances of this record, we shall mention only a few of them. In State v. Morrow, Mo., 188 S.W. 75, 76, the charge was murder in the second degree; conviction for manslaughter. Defendant contended that under the facts in the case there was no evidence on which to bottom an instruction on manslaughter. A point had attempted to be made calling in question the sufficiency of the evidence to uphold the verdict. It was there said: 'Manifestly, however, there is no evidence of involuntary manslaughter in the case, and, since defendant was convicted of this offense, it may be urged that the point made in the motion for a new trial touching the lack of evidence to uphold the verdict of manslaughter ought to be sustained. Upon the record before is defendant was either guilty of murder in the second degree, or he should have been acquitted on the ground of self-defense. The instruction for manslaughter, as we say above, should not have been given, for there is no manslaughter in any degree in the case; but since the court so instructed and the jury saw fit to temper justice with mercy, and since we are forbidden to reverse a case where the evidence shows defendant to be...