State v. Golden

• Decision Date: 10 June 1932
• Docket Number: No. 31779.,31779.
• Citation: 51 S.W.2d 91
• Parties: THE STATE v. GEORGE GOLDEN, Appellant.
• Court: Missouri Supreme Court

51 S.W.2d 91

THE STATE v. GEORGE GOLDEN, Appellant.

No. 31779.

Supreme Court of Missouri, Division 2.

June 10, 1932.

Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.

AFFIRMED.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) The information is not challenged. It is sufficient in form and is in the words of the statute, Sec. 3982, R.S. 1929; State v. Baird, 297 Mo. 222; State v. Fox, 300 S.W. 820. (2) Defendant's first, second and third assignments of error in his motion for new trial complain of the action of the trial court in refusing to place, at the request of defendant, members of the jury panel, after each twelve had been qualified, in charge of the sheriff and taken to a room where they would not be permitted to mingle with other persons until the final selection of twelve jurors to try the cause had been made. This assignment is without merit. Sec. 3678, R.S. 1929; State v. Todd, 146 Mo. 295; State v. Fox, 300 S.W. 820. Under the decisions of this court statements such as those attempted to be shown are properly excluded as self-serving declarations. One is not permitted to make testimony for himself in this manner. State v. Lovelace, 39 S.W. (2d) 533; State v. Atchley, 186 Mo. 194; State v. Maguire, 133 Mo. 670; State v. Van Zant, 71 Mo. 543.

HENWOOD, J.

The defendant appealed from a judgment of the Circuit Court of Jasper County, sitting at Joplin, where he was convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life.

Glen Moss, the victim of the alleged murder, was shot and killed by the defendant in the city of Joplin, in Jasper County, on August 31, 1931. The defendant was then sixty-one years of age, and had been in poor health and in a nervous condition for several years. Moss was twenty-six years of age, and about five feet and ten inches in height, and weighed about one hundred and seventy pounds. The defendant lived on the northeast corner of the intersection of Ninth and Picker streets in Joplin, where the shooting occurred. Ninth Street runs east and west, and Picker Street runs north and south. The defendant's house faced west on Picker Street, and there was a porch on the southeast part thereof, facing south on Ninth Street. Moss lived on Connor Street, near Ninth Street, three blocks east of Picker Street. In December, 1927, the defendant gave the police officers of Joplin information which lead to the arrest of Moss on a charge of stealing an automobile in Joplin. Moss pleaded guilty to the charge, and was sentenced to imprisonment in the penitentiary for two years, and granted a parole immediately following the sentence.

The defendant's evidence shows that, six or eight months after Moss was prosecuted, "he began annoying" the defendant "about causing him to be sentenced to the penitentiary," and told the defendant he was going to "get even" with him; and that, on numerous occasions, he cursed the defendant, and called him an "old son-of-a-b____," and threatened to "beat" his "head off" and to "stomp" his "head in the ground;" and that, on one occasion, he threatened to "run over" the defendant "with his car;" and that, referring to the defendant, he said to one of the defendant's friends, "I could kill that old son-of-a-b____ and beat him to death just the same as though he was a snake." And the State's evidence shows that, about two years before Moss was killed, the defendant said to Moss's brother, "Tell Glen I am going to kill him the next time he crosses my path;" and that, about one year before Moss was killed, on the south side of Ninth Street, opposite the defendant's premises, the defendant pointed a pistol at Moss, and said, "You walk towards me and I will shoot you," and Moss said, "I will walk from you," and Moss "walked from him."

Several of the State's witnesses saw the shooting, and also saw what happened shortly before. From the testimony of these witnesses, we gather the following: From about four o'clock until about five-thirty in the afternoon of August 31, 1931, Moss sat on the front porch of O.F. Harris's house on the north side of Ninth Street, about one block west of the defendant's home, talking to Harris and William Abbott. While Moss was there, the defendant passed there twice, walking along the sidewalk on the north side of Ninth Street from his house to Dayhill's grocery store and from the store back to his house. The store was on the north side of Ninth Street, about one block west of Harris's house. Upon entering the store, the defendant said to Mr. Dayhill, "I want a loaf of bread, but I really don't need it; I had to have an excuse to come to the store; there is a certain party on Ninth Street; if they don't leave me alone, I am going to clean up on them." Between five-thirty and six o'clock that afternoon, Moss left Harris's house and started east on the north side of Ninth Street, in the direction of his home. While he was walking along the sidewalk on the south side of the defendant's premises, the defendant pointed a pistol at him, and said, "You can't go down my sidewalk; you called me a son-of-a-b____, and anybody that does that can't get away with it." Moss "threw his hands in the air and backed," then turned and walked back to Prall's garage, about a half of block west, on the north side of Ninth Street. Some of the State's witnesses testified that Moss, in replying to the defendant, said, "I will be back in fifteen minutes and I will walk down the sidewalk," and others testified that Moss said to the defendant, "You haven't got nerve enough to fight like a man; I will be back in fifteen minutes." Moss remained at Prall's garage for a few minutes, talking to several residents of the neighborhood, and then started east again, along the sidewalk on the north side of Ninth Street, "with his hands down to his sides." When he reached a point on the sidewalke near the southwest corner of the defendant's premises, the defendant, standing near the side porch of his house and behind a rose trellis, pointed a double-barreled, "12 guage" shotgun at Moss, and shot Moss, while Moss was facing him and "backing away," with "his hands in the air." As Moss turned, facing south, the defendant shot him again with the shotgun, and Moss fell to the sidewalk, mortally wounded, with "three or four hundred shot" in his body. The "whole front part of his body and around his sides were filled with gunshot wounds," and "some in his legs," and "some in one of his arms." While lying on the sidewalk, immediately after he was shot, Moss said to Mrs. Harris, "Oh Mrs. Harris, have I said a word? Have I said a word? I did not do anything, did I?" Immediately after shooting Moss, the defendant reloaded the shotgun. A few minutes later, when the defendant was arrested by a police officer, he said to the officer, "I have done it and ready to go down." At that time, the shotgun was lying across the arms of a chair on the side porch of the defendant's house, and a "38 Colts" revolver was found under the cushion of the chair. Both the shotgun and the revolver were loaded.

The defendant testified, in support of his plea of self-defense: He told Moss's brother that he "wasn't to blame for his (Moss's) troubles," and that he "didn't want to have any trouble with him (Moss) and would like to avoid it," and "there was no threat passed." He had an altercation with Moss and Moss's companions on the south side of Ninth Street, opposite his premises, when they were indulging in "some slurring talk" about him, but he did not threaten to shoot Moss on that occasion. He went to Dayhill's store and bought a loaf of bread the day of the shooting, but did not say at that time that he "had come there just as an excuse." He did say, "Ninth Street is getting tough," and he was asked what he was going to do "when they got on" him, and replied, "if I can't get away, I will clean them up." Later that afternoon, while he was cutting grass near the south window of his house, Moss came along the sidewalk, and "kinda crouched down like he was going to lunge" at him, and said, "I will stomp you in the ground." He said to Moss, "Stop, or I will hurt you," and pointed his pistol at Moss, "to drive him away," because he "was afraid" Moss was going "to injure" him. When he drew his pistol on Moss, Moss "throwed up his hands, and walked back probably two or three steps," and said, "G____ d____ you, you haven't got nerve enough to fight; I will be back and settle it with you; and I will be back in fifteen minutes;" and Moss went back west on Ninth Street. He then loaded his shotgun, and "laid it" on the edge of his side porch "for the purpose of protecting" himself. In about fifteen minutes, while he was sitting in a chair on his side porch, Moss came back from the west, along the sidewalk, and, upon reaching the southwest corner of his premises Moss said to him, "G____ d____ you, I have come back to settle with you, and you won't get out of it." He "thought he (Moss) was going to pull a gun," and "got up out of the chair and picked up the shotgun, and fired the first shot at Moss, with Moss facing him, but did not know how he fired the second shot. He was "scared" and "excited," and, when he "come to" himself, he was loading the shotgun again. On cross-examination, he said he thought he saw Moss crossing Ninth Street, "going toward Mr. Harris's," before he went to Dayhill's store, and thought he saw Moss on Harris's porch as he passed there on his way to the store, the day of the shooting; that, later that day, when Moss came along the sidewalk, adjoining his premises, the first time, he had his pistol "in the bosom of his overalls," but did not "know just how" he happened to have it;" that when Moss came back along there the second time that day, he "shot with the intention of filling him full of shot, so he would leave there;" and that, when he fired the first shot, Moss was "thirty to...