State v. Grubbs

• Decision Date: 08 November 1948
• Docket Number: 40981
• Parties: State of Missouri, Respondent, v. Clarence Grubbs, Appellant
• Court: Missouri Supreme Court

214 S.W.2d 435

358 Mo. 323

State of Missouri, Respondent, v. Clarence Grubbs, Appellant

No. 40981

Supreme Court of Missouri

November 8, 1948

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Affirmed.

No attorney of record for appellant.

J. E Taylor, Attorney General, and C. B. Burns, Assistant Attorney General, for respondent.

(1) Assignments of Error Nos. 1, 2, 7 and 8 in appellant's motion for a new trial are too general for review in this court. Sec. 4125, R.S. 1939; State v. Kennon, 123 S.W.2d 46; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Vigus, 66 S.W.2d 854. (2) The court did not err in overruling appellant's assignments of error Nos. 3 and 4 in his motion for a new trial. Sec. 4125, R.S 1939; Sayre v. Commonwealth, 194 Ky. 338, 238 S.W.2d 737, 24 A.L.R. 1017; State v. Selvaggi, 319 Mo. 40 2 S.W.2d 765; State v. Mason, 339 Mo. 874, 98 S.W.2d 574; State v. Jukich, 242 P. 590. (3) The court did not err in overruling defendant's assignments of error Nos. 5 and 6 in his motion for a new trial. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Reagan, 108 S.W.2d 391; State v. Davis, 226 Mo. 493. (4) The ninth assignment of error in appellant's motion for a new trial presents nothing for review in this case. State v. Cutter, 1 S.W.2d 96, 318 Mo. 687. (5) The evidence was sufficient.

OPINION

Tipton, P. J.

The appellant was convicted of murder in the first degree in the circuit court of Jackson County and his punishment assessed at life imprisonment in the state penitentiary.

The appellant has filed no brief in this court. We will therefore examine the record for errors alleged in his motion for a new trial. However, he has written a letter complaining that the bill of exceptions is incorrect in several respects. The bill of exceptions was approved by the trial court and we are bound by what it contains. Nevertheless, we have compared what appellant contends should have been in the bill of exceptions with what it actually shows and find that the variances are of an immaterial nature.

Assignments numbers 9 and 10 in appellant's motion for a new trial state that the court erred in overruling his demurrers to the evidence.

On March 4, 1946, Wilma Edwards, the desk clerk of the Cortez Hotel in Kansas City, Missouri, Leonard Long, the deceased, and Inez Morowitzke were in the lobby of that hotel when the appellant came down from his room to the lobby. This was about 10:30 or 11:00 a.m. of that day. As he passed Long he said, "Why did you say that? The next time you say that I will hit you in the mouth. What is the idea of making some statement about the mail every time I walk into the lobby? If you do it again I will kill you." Appellant then struck deceased twice in the face. Deceased got up and asked appellant to remove his glasses, which he did, and placed them on a piano. Deceased got the appellant down and rubbed his face on the floor until the appellant said he had "had enough." Deceased then resumed his seat and appellant picked up his glasses and went upstairs.

Appellant was in and out of the hotel later during the day. About noon both appellant and deceased were seated in the lobby but did not speak to each other. Between 2:00 and 2:30 p.m. appellant went upstairs but came down a few minutes later. Deceased, Inez Morowitzke and Wilma Edwards were in the lobby at that time. When appellant reached the bottom of the stairs he started shooting at deceased. At about the same time he said to deceased, "I will get you this time," "This is it" or "This is the end." Appellant fired three shots at deceased and one at Inez Morowitzke but the bullet went over her head.

Appellant then went to a police station and gave himself up. He made an oral statement to two police officers in which he said that he and deceased had had a fight, that deceased had hit him and he made up his mind he would kill him. He went up to his room and got his gun but it would not work. He then came down in the lobby and later went out and got a bottle of whiskey, then returned to his room. This time he got the gun to work and he again went to the lobby and saw deceased sitting there. He started shooting at deceased and fired at a woman running upstairs who he thought was Miss Edwards. Deceased died from the gunshot wounds the next day.

The defense was insanity. Dr. Wilmer L. Allison had treated the appellant in December, 1941, for paranoia and delusions of persecution at a mental institution in Fort Worth, Texas, and it was his opinion that appellant was incapable of distinguishing right from wrong. There were other witnesses to support his defense of insanity.

The demurrer filed at the close of the state's evidence was waived when the appellant introduced evidence in his own behalf. State v. Cutter, 318 Mo. 687, 1 S.W. 2d 96.

The demurrer at the close of the case was properly overruled. The evidence if believed by the jury was sufficient to establish murder in the first degree. At the trial appellant's attorneys admitted that deceased died from a gunshot wound inflicted by appellant. The law is well settled in this state that one who takes the life of another by intentionally shooting him in a vital part with a gun, with sufficient time to deliberate and form the conscious purpose to kill, without sufficient or just cause or provocation, is guilty of murder in the first degree. Section 4376, R.S. Mo., 1939. State v. Kindred, 148 Mo. 270, 49 S.W. 845. The evidence in this case comes within this rule of law and the trial court properly ovrruled appellant's demurrer at the close of all the evidence in the case.

Assignments numbers 5 and 6 state that the court erred in instructing the jury on first degree murder for the reason that the state failed to prove the requisites of murder in the first degree. We have just held that the evidence was sufficient to sustain a charge of murder in the first degree. There is no merit in this contention. Moreover, the record shows "that Instruction No. 1 is the instruction offered in behalf of the defendant by the defendant's counsel and is by the Court marked 'Given'." After requesting this instruction, the appellant is in no position to urge that it was error to give it.

Assignments numbers 1 and 2 in appellant's motion for a new trial are as follows:

"1. The verdict of the jury was against the weight of the evidence.

"2. The jury was not properly instructed as to the law and the evidence."

We have repeatedly held that these two assignments of error are too general to preserve anything for our review as they do not comply with Section 4125, R.S. Mo., 1939. State v. Kennon, 123 S.W. 2d 46 and cases cited therein.

Assignments numbers 7 and 8 complain of the court's refusing two requested instructions, one defining reasonable doubt and the other defining the legal definition of mental delusions. These two assignments do not in any way point out why such refusal was error. Before the alleged error in refusing to give requested...