State v. Gore, No. 22919.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDavid E. Blair
Citation292 Mo. 173,237 S.W. 993
PartiesSTATE v. GORE.
Decision Date01 March 1922
Docket NumberNo. 22919.
237 S.W. 993
292 Mo. 173
STATE
v.
GORE.
No. 22919.
Supreme Court of Missouri, Division No. 2.
February 18, 1922. [od] Motion for Rehearing Denied March 1, 1922.

[237 S.W. 994]

Appeal from Circuit Court, Buchanan County; Wm. H. Utz, Judge.

Etta Gore was convicted of manslaughter, and appeals. Affirmed.

Mytton & Parkinson and Miles Elliott, all of St. Joseph, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty: Gen., for the State.

DAVID E. BLAIR, J.


Defendant was tried in the Buchanan county circuit court upon an information charging her with murder in the first degree, and, -upon conviction by the jury of the crime of manslaughter, and sentence upon verdict to imprisonment in the penitentiary for a period of two years, she has appealed.

Defendant was charged with killing her husband, one Cecil Gore. They were living together as husband and wife, and conducted a restaurant in the city of St. Joseph. Said restaurant was composed of a dining room and three other rooms. One of these rooms was used as a bedroom, and contained a couch and other furniture. The deceased was shot and wounded in said restaurant about 2 o'clock p. m. on May 3, 1920, and died a week later. The shooting occurred in said bedroom. Immediately following the shooting the defendant was seen standing in the bedroom with a gun in her hand looking at deceased, who was lying on the floor. The only other person in the restaurant at the time of the shooting was one Charlie Thomas, who took the gun from the defendant after the shooting. Only one shot was fired. On the evening of the shooting, about 9 o'clock, the deceased made a dying statement covering the shooting. Said statement is set out in full in the opinion.

The testimony tends to show that about April 20, 1920, the deceased and the defendant had some trouble, and at that time the defendant pointed a pistol at the deceased. The witness Charlie Thomas was present at that time, and seized the pistol. The presence of Charlie Thomas about the restaurant seems to have been resented by the deceased, although it does not clearly appear from the testimony that the trouble resulting in the shooting grew out of that incident. The dying declaration of deceased tends to show that there was no trouble between himself and the defendant at the time of and immediately prior to the shooting. His statement is that he and his wife had been sitting in the room talking, and he started to go to his home on Twenty-Seventh street, and went into the restaurant to get his hat, and immediately returned to the room, and that, as he got into the room, the defendant reached for the gun, and without saying a word shot him; that he did not attempt to strike or threaten her in any way; that he did not have any weapon in his hand or on his person; and that they had had no quarrel on the day of the shooting.

The defendant, as a witness in her own behalf, testified that on the day of the shooting she went into the room about 1:30 o'clock in the afternoon, after she had finished her work, and while lying on the bed the deceased came in, closed the door, laid down on the bed, and tried to force sexual attentions upon her; that he was diseased; that one Dr. Barnes had told her that he bad gonorrhea; that the defendant and the deceased scuffled on the bed, and struggled about 30 minutes; that defendant jumped up off the bed, and deceased jumped up and tried to grab her, and she grabbed the gun; that the pistol was lying on "a little business" right by the bed in plain view of both the deceased and defendant; that as defendant grabbed the pistol deceased tried to grab her before she grabbed the pistol; that he grabbed her arms, and she fired; that before that he had said, "By God, I will"; that defendant had the pistol in her hand at the time deceased had hold of her; that at the time the shot was fired she was in fear of bodily injury; that he had hold of both her arms at that time; that she did not know what caused the pistol to be discharged.

On cross-examination defendant testified that she was 40 years old; that the reason she shot her husband was that she thought he was going to have sexual intercourse with her, and she could not protect herself in any other Way; that she did not scream, or try to get away; that she did not intend to take his life, but intended to shoot if necessary to

237 S.W. 995

protect herself; that deceased weighed 197 pounds, and was 22 years old when they were married 4 years previously. Defendant also offered witnesses whose testimony tended to show that they had seen about the premises and in deceased's possession implements and medicine usually used in the treatment of venereal disease. Such further facts as are deemed necessary to a full understanding of the case will be discussed in the opinion.

I. The motion for a new trial assails the sufficiency of the information. No assignment of error on this point is made in appellant's brief. We have examined the information, and find no just criticism can be made against the charge contained in the body thereof.

In the verification the prosecuting attorney did not describe himself as prosecuting attorney. He was so described in the body of the information, and at the conclusion thereof signed himself as such. Section 3849, R. S. 1919, only requires verification by the prosecuting attorney, and makes no requirement that he describe himself as such. The information is clearly sufficient. State v. Carroll (Mo. Sup.) 232 S. W. loc. cit. 701, and cases cited.

II. The examination of jurors on their voir dire disclosed that a number of them had conscientious scruples against the infliction of the death penalty. The state challenged some of these, and did not challenge others possessing such scruples. Appellant complains that Jurors Glassco, Ernst, Munger, Sanders, and others possessing such conscientious scruples were not challenged by the state, and that the trial court erred in overruling a subsequent challenge to such jurors made by defendant on the same ground.

Defendant's counsel does not point out the place in the record where any such challenge appears, and we have not found any such record. However, we note an objection made to the court because counsel for the state challenged some jurors for this reason and did not make such challenge as to others. Even if challenge was made on that account, and was overruled, we do not think defendant is in a position to complain. Section 4012, R. S. 1919, provides:

"Persons whose opinions are such as to preclude them from finding any defendant guilty of an offense punishable with death; shall not be allowed or compelled to serve as jurors on the trial of an indictment for any offense punishable with death."

Such provision is for the benefit of the state. If persons possessing such opinions are permitted to remain on the trial panel, their presence precludes in advance the possibility of the death penalty being imposed. If the state sees fit to waive this disqualification, and the juror himself does not insist upon being excused, the defendant cannot complain. It has always been considered that it is to the interest of defendant to have such jurors left on the panel when being tried for first degree murder.

We are not cited to any cases in our own state where this point is considered, and our examination has not disclosed any such. It has been held in other states that the defendant cannot justly complain on such ground. The Kansas statute (Code Cr. Proc. § 201) provides that no person who believes the punishment fixed by law is too severe "shall be sworn as a juror." It was held in State v. Vogan, 56 Kan. 61, 42 Pac. 352, that it was not error to overrule defendant's challenge made under said statute. The Alabama statute (Code 1852, § 3585) provides that, where jurors had fixed opinions against capital or penitentiary punishments, "it is good cause for challenge by the state." In Murphy v. State, 37 Ala. 142, it was held that the overruling of defendant's challenge on this ground was not error. A difference between the Alabama statute and our own is noted. See, also, State v. Compagnet, 48 La. Anu. 1470, 21 South. 46, where the same ruling is made; but in that case the statute is not quoted. The trial court did not err in overruling defendant's challenge to said jurors.

III. Appellant contends that the statement signed by deceased was improperly admitted in evidence as his dying declaration. After certain parts thereof had been excluded by the court, the following statement was admitted in evidence:

"I, Cecil Gore, realizing that I will die, do make this my dying statement. On Thursday afternoon, May 6, 1920, I was in the room in back of my restaurant at 1714½ Commercial street, my wife, Etta, being in the room at the same time. We had been sitting in the room talking a few minutes when I said that I was going out to my home on Twenty-Seventh street, and started to get my hat and went into the restaurant and immediately went back into the room, and as I got into the room my wife reached for the gun that was over on the stand in the room and without saying a word she shot me. I did not attempt at any time to strike her nor did I threaten her in any manner. I did not have any weapon in my hand or on my person and I did not reach for my pockets or raise my hands in any threatening manner against her. Did not have a quarrel to-day or at the time of the shooting.

 "Cecil Gore.
                "Witnesses:
                 "T. A. Johnson,
                 "Dr. W. W. Gray,
                 "Miss Ethel Smith."
                

The objection is made that the evidence does not show that deceased realized that death was imminent and impending. Witness Dr. Gray testified that he had advised deceased he could not recover, and that the deceased said that he "believed he was going to die." Again said witness testified that deceased said he "thought he was going

237 S.W. 996

to die"; but he finally testified that deceased said he "was going to die."

"In...

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30 practice notes
  • State v. Davis, No. 33975.
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1935
    ...properly admitted in evidence. State v. Anderson, 34 S.W. (2d) 26; State v. Evans, 28 S.W. 11, 124 Mo. 397; State v. Gore, 237 S.W. 996, 292 Mo. 173; State v. Nocton, 121 Mo. 550, 26 S.W. 551. (3) The court committed no error in refusing to give Instruction 12, which instruction related to ......
  • State v. Hailes, No. 2384
    • United States
    • Court of Special Appeals of Maryland
    • May 27, 2014
    ...the declarant lived for several days after making the statement is not controlling” to a dying declaration analysis.); State v. Gore, 292 Mo. 173, 237 S.W. 993, 996 (1922) (“The length of time which elapsed between the declaration and the death of the declarant furnishes no rule for the adm......
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...1048; State v. McKinzie, 102 Mo. l.c. 627; State v. Umfried, 76 Mo. l.c. 407; State v. Gieseke, 209 Mo. 331, 108 S.W. 525; State v. Gore, 292 Mo. 173, 237 S.W. 993, to the contrary, was questioned in State v. Gadwood, 116 S.W. (2d) 42, 58-59, and may be considered overruled by State v. Robi......
  • State v. Malone, No. 32775.
    • United States
    • United States State Supreme Court of Missouri
    • August 12, 1933
    ...State v. Lewis, 154 S.W. 719, 248 Mo. 498; State v. Burrell, 252 S.W. 711, 298 Mo. 672; State v. Clough, 38 S.W. (2d) 36; State v. Gore, 237 S.W. 993, 292 Mo. 173. (3) By the use of the phrase that the "law of self-defense is emphatically the law of necessity" it intimates to the jury that ......
  • Request a trial to view additional results
30 cases
  • State v. Davis, No. 33975.
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1935
    ...properly admitted in evidence. State v. Anderson, 34 S.W. (2d) 26; State v. Evans, 28 S.W. 11, 124 Mo. 397; State v. Gore, 237 S.W. 996, 292 Mo. 173; State v. Nocton, 121 Mo. 550, 26 S.W. 551. (3) The court committed no error in refusing to give Instruction 12, which instruction related to ......
  • State v. Hailes, No. 2384
    • United States
    • Court of Special Appeals of Maryland
    • May 27, 2014
    ...the declarant lived for several days after making the statement is not controlling” to a dying declaration analysis.); State v. Gore, 292 Mo. 173, 237 S.W. 993, 996 (1922) (“The length of time which elapsed between the declaration and the death of the declarant furnishes no rule for the adm......
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...1048; State v. McKinzie, 102 Mo. l.c. 627; State v. Umfried, 76 Mo. l.c. 407; State v. Gieseke, 209 Mo. 331, 108 S.W. 525; State v. Gore, 292 Mo. 173, 237 S.W. 993, to the contrary, was questioned in State v. Gadwood, 116 S.W. (2d) 42, 58-59, and may be considered overruled by State v. Robi......
  • State v. Malone, No. 32775.
    • United States
    • United States State Supreme Court of Missouri
    • August 12, 1933
    ...State v. Lewis, 154 S.W. 719, 248 Mo. 498; State v. Burrell, 252 S.W. 711, 298 Mo. 672; State v. Clough, 38 S.W. (2d) 36; State v. Gore, 237 S.W. 993, 292 Mo. 173. (3) By the use of the phrase that the "law of self-defense is emphatically the law of necessity" it intimates to the jury that ......
  • Request a trial to view additional results

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