State v. Glenn
| Decision Date | 05 June 1924 |
| Docket Number | 25333 |
| Citation | 262 S.W. 1030 |
| Parties | STATE v. GLENN |
| Court | Missouri Supreme Court |
Jesse W. Barrett, Atty. Gen., and Allen May, Sp. Asst. Atty. Gen for the State.
The appellant was convicted of manslaughter, and his punishment assessed at imprisonment in the penitentiary for a term of five years. The information charges the defendant with murder in the second degree for shooting and killing Sterling Friend on October 7, 1922. The defense was that the homicide was accidental.
The tragedy occurred in the defendant's house in the outskirts of Springfield. Glenn's, Friend's, and one Roy Wilkerson's houses were on the east side of East avenue. There were no street lights in this locality. At about 7 p. m. on the day of the homicide Edgar Morgan and William D. Garrison, aged 17 and 18, respectively, drove a truck northward on East avenue to Glenn's house, with groceries to be delivered to Roy Wilkerson. They flashed lights to enable them to read the numbers on these houses then backed the truck two doors south to Wilkerson's house. Mrs. Friend, who was alone in her house with her baby, noticed the flashlights, and saw a man pass her window. She was frightened, and went screaming to the front door, where she saw Glenn, but did not at the instant recognize him, or see the delivery boys or the truck. She cried out (as she testified): 'What in the hell do you want around here?' Glenn cursed the boys for flashing lights on his house. Mrs. Friend told them they had no right to be flashing lights. The boys said they were with the Bridger Grocery Company, and had a right to deliver groceries after night. Glenn and Mrs. Friend told the boys they knew them, and would 'get their jobs.' Other words passed, when the Morgan boy tantalizingly cried out, Glenn said, 'I will get my gun and shoot you low-browed sons of bitches,' and ran into his house by the front door, and turned on the porch light. About this time Sterling Friend, returning home from an errand, came running from the south, about 25 feet behind Glenn. He called to Glenn, saying 'Layton, give me the gun; I will use it.' He then 'took in after him [Glenn], and just as he [Friend] opened the screen door the shot was fired.' As soon as they heard the shot the boys drove away. Mrs. Friend immediately picked up her baby and ran into Glenn's house. Friend's body was lying inside, with his head a few feet north of the front door. Glenn was washing Friend's face with water, trying to bring him back to life. Mrs. Friend said to Glenn, 'You have got yourself into trouble.' Glenn replied, 'Pick up your snot-nose baby and get out of here.' Friend was dead. Mrs. Friend called the coroner. Quite a number of people, 15 or 20, quickly arrived. Some one asked Glenn who killed Friend. Glenn said, Another witness put it, Several witnesses for the state testified that defendant said nothing about having a tussle or struggle with Friend ever the gun, or that the shooting was accidental. Glenn also said, 'Friend was a good friend of mine.'
Klinger, the undertaker, testified the body was about five feet east of the front door, lying almost north and south, with the head to the north and the feet about eight feet from the door. The wound was about the size of a silver dollar, and just above the heart on the right side of the chest. It went straight in. Mr. Paxon, the coroner, corroborated Mr. Klinger as to the position of the body, the size of the wound, and there being no powder burns on the clothes or body. He thought the muzzle of the gun was two or three feet from the body because the shot had just begun to spread when it hit the body.
Vesta Glenn, defendant's mother, called by the prosecution, testified that she ran to the defendant's house directly after the homicide. When she went in she heard a number of people say they would get their guns and shoot Layton. She got defendant's gun, and put it out in the dooryard behind a tree, and later that night gave it to one of the officers. She was afraid of mob violence, and told the defendant to go, and he left. For many years her son had been an epileptic.
Ed Waddle, a policeman, arrived at Glenn's house an hour or two after the homicide and stayed there till after midnight. Defendant was not there. Defendant's mother gave witness the gun, a single-barrel shotgun. He arrested the defendant the next morning about 9 o'clock. Defendant was about two blocks from where he lived, and was going towards his house at the time he was arrested. He made no resistance; had both hands in his pockets, and was walking along like he was studying over something. Oliver, one of the officers, spoke to the defendant and defendant got into the Ford. Oliver took him to the police court and turned him over to the jailer, Gammon.
Mrs. Tennie Glenn, the defendant's wife, and their son, Roy, aged 14, testified they were present when Friend was killed. The defendant had come in the front room and turned on the porch light. He went into the south bedroom and turned on the light. Friend came in by the front door and said, 'Layton, let me have that gun: I will kill the damn sons of bitches.' Glenn told Friend he could not have the gun; that there would be nobody shot there. Friend ran in and grabbed the gun by the muzzle; it was standing just inside by the door that opened into the bedroom. Glenn grabbed the breech of the gun, and tried to pull it away from Friend. They jerked and scuffled over the gun until it was accidentally discharged. Glenn got a pan of water and washed Friend's face. Mrs. Friend and 15 or 20 other people came in. Mrs. Friend started to fall; she was fainting. Glenn caught her, and said, 'You musn't do that.' They and several other witnesses testified that Glenn did not tell her to take her baby and get out, or say anything about killing Friend. He said his best friend was dead. Mrs. Glenn said that Glenn said,
The defendant did not testify.
The defendant has not filed a brief. We are therefore remitted to the motion for new trial for the assignments of error. We have been materially assisted by the clear and impartial presentation of the case by the Assistant Attorney General. The defense is that the killing was accidental. The sufficiency of the information and of the evidence to support the verdict is not questioned.
1. The appellant assigns error in the exclusion of competent and material evidence.
The prosecution called the defendant's mother as a witness. She heard noises and screaming, and ran to the defendant's house directly after the tragedy occurred. She there heard threats of violence, told the defendant to leave, hid the shotgun, and later turned it over to a policeman. On cross-examination she said her son explained to her how the killing occurred. She thought no other person heard his statement. When asked to give his explanation, the court sustained an objection. There was no offer to prove what the statement was. In the absence of such an offer it cannot be assumed that the court erred in excluding the explanation. It may or may not have been a part of the res gestae and material. Error is not presumed; in Missouri it must be shown. State v. Hermann, 117 Mo. 629, 638, 23 S.W. 1071; State v. Finley, 245 Mo. 465, 473, 150 S.W. 1051.
2. Appellant's counsel offered to prove that prior and subsequent to the date of the homicide the defendant was not a man of normal mind, that he was afflicted with a nervous trouble, that impaired his mentality, and that he was mentally unbalanced. Counsel stated it was not claimed that defendant was insane in the full sense of the word, but that it was competent to show his status mentally, 'because the state has stated to the jury what in effect charges the defendant with flight.' The prosecuting attorney objecting to the evidence, stated there was no evidence of defendant's flight for the purpose of avoiding arrest; that his flight had been explained by the defendant's mother, the state's witness, and that defendant left on her suggestion to avoid threatened violence. He expressly disclaimed, in the presence of the jury, that such action would raise a presumption unfavorable to the defendant. The prosecution solemnly admitted there was no flight to be explained, and, in effect, stated that defend...
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