State v. Haynes

• Decision Date: 09 November 1959
• Docket Number: No. 47274,No. 1,47274,1
• Citation: 329 S.W.2d 640
• Parties: STATE of Missouri, Respondent, v. Lora Johnson HAYNES, Appellant
• Court: Missouri Supreme Court

Page 640

329 S.W.2d 640

STATE of Missouri, Respondent, v. Lora Johnson HAYNES, Appellant.

No. 47274.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1959.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 14, 1959.

James Daleo, Jack L. Simms, Thomas F. Conway, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Calvin K. Hamilton, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant has appealed from a conviction of murder in the second degree and a sentence of 15 years' imprisonment in the state penitentiary. Two assignments of error are presented. The first is that the information is insufficient to charge an offense and the second is that the trial court erred in not instructing on manslaughter.

As to the first assignment, appellant says the amended information is not 'a plain, concise, definite statement of the essential elements of the offense attempted to be charged, as required by Supreme Court Rule 24'; and that it does not 'fully inform the appellant of the special character of the charge she was required to defend against, nor is same sufficiently specific to stand as a bar against a further prosecution for the same alleged offense.'

Appellant directs attention to that portion of the amended information which reads as follows: '* * * that Lora Johnson Haynes * * * on the 25th day of August, 1957, at the County of Jackson, State of Missouri, did then and there wilfully, feloniously, premeditatedly, deliberately and of her malice aforethought make an assault upon one Bertha Ernestine Moten with a dangerous and deadly weapon, towit, a revolving pistol loaded with gunpowder and leaden balls, then and there inflicting upon the said Bertha Ernestine Moten a mortal wound, and that from said mortal wound the said Bertha Ernestine Moten within one year thereafter, to-wit, on the 25th day of August, 1957, at the County of Jackson and State of Missouri, died; * * *.'

As stated, appellant says that this information does not contain 'a plain, concise, definite statement of the essential facts constituting the offenses of first degree murder or second degree murder.' She insists that it 'is rambling, indirect, disconnective, devious, and is anything but plain'; that 'it starts out by alleging an assault and ends up by alleging the death of the deceased, but nowhere states that the deceased was shot by the defendant,' nor 'that Mrs. Moten died from a gunshot wound'; and that such facts are 'left to inference.' Appellant further says '* * * the Amended Information does not charge Mrs. Haynes with shooting Mrs. Moten and does not even state that the infliction of the 'mortal wound,' howsoever caused, was wilfull, felonious, premediated, deliberate and of malice aforethought'; that the amended information charges Mrs. Haynes with inflicting a mortal wound upon Mrs. Moten, but does not state how the pistol was used, whether as a bludgeon or for shooting; and that it describes the wound as 'mortal' but does not say whether it was caused by a blow or by a gunshot, or state how the death of the deceased was accomplished. Appellant concludes with the statement that 'the method and means by which the death of the deceased was effected was not only not plainly and concisely charged, but was not set forth at all.'

Appellant cites Supreme Court Rule 24.01, 42 V.A.M.S.; State v. Reynolds, Mo.App., 274 S.W.2d 514; Ex parte Keet, 315 Mo. 695, 287 S.W. 463; State v. Stringer 357 Mo. 978, 211 S.W.2d 925; State v. Birks, 199 Mo. 263, 97 S.W. 578 and State v. Finn, Mo.Sup., 243 S.W.2d 67. None of these authorities support the conclusion that the information in this case is insufficient to charge the offense of murder in the first degree or to include murder in the second degree, the offense of which appellant was convicted.

Supreme Court Rule 24.01, in part, provides that 'the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. * * *'

Supreme Court Rule 24.03, in part, provides: 'When an indictment or information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare his defense, the court may direct or permit the filing of a bill of particulars. * * *' And see State v. Bright, Mo.Sup., 269 S.W.2d 615, 619(1).

No such motion or request for a bill of particulars was filed on the part of defendant in this case and, in the trial of the cause, defendant testified in her own behalf that (on the day in question, at the place in question and under circumstances stated by her in her testimony) she fired the shot that killed Mrs. Moten. She further testified that she pointed the gun in question at Mrs. Moten, when six or seven feet from her, and pulled the trigger; and that she didn't thereafter, stop to see what happened to Mrs. Moten. In view of defendant's own testimony it is apparent that defendant could not have been misled or prejudiced by the failure of the information to allege that defendant 'did discharge and shoot off' the said weapon, nor was it necessary for the amended information to more particularly allege the exact method and means by which the death of deceased was effected, that is, whether the pistol was used as a bludgeon or for shooting. It did allege a mortal wound was inflicted upon Bertha Ernestine Moten by the use of a dangerous and deadly weapon, to-wit, a revolving pistol loaded with gunpowder and leaden balls and this allegation certainly was intended to mean and did mean that the pistol was 'used in the usual method, in the performance of its normal function.'

In the case of State v. Dildine, 330 Mo. 756, 51 S.W.2d 1, 2(1) the court said: 'Appellant asserts that the information is uncertain in violation of section 22, article 2, of the Constitution, in that it does not state the nature and cause of the accusation. The exact point is that the information does not with sufficient particularity describe how the offense was committed. It avers that the assault was made with a dangerous and deadly weapon, to wit, a pistol, which might be used in shooting or it might be used as a bludgeon, thus leaving uncertain the manner of the assault. It is urged that the pistol for the purpose of shooting is not a deadly weapon, unless it is loaded with powder and ball. In State v. Clayton, 100 Mo. 516, 13 S.W. 819, 18 Am.St.Rep. 565, an indictment exactly like the present one, with the additional averment that the pistol was loaded with gun powder and leaden balls, was held good against this attack. When an information or indictment charges that an assault with intent to kill is made with a deadly weapon, a pistol, it means that the pistol was used in the usual method, in the performance of its normal function. * * *'

Section 559.010 RSM. 1949, V.A.M.S., provides that: 'every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, * * * shall be deemed murder in the first degree.' It is not an essential element of murder in either degree that the killing was done with a deadly weapon, or any weapon at all, since the crime may be committed with the fist. State v. Beard, 334 Mo.909, 68 S.W.2d 698, 700(1); State v. Rizor, 353 Mo. 368, 182 S.W.2d 525, 526; State v. Taylor, Mo.Sup., 309 S.W.2d 621, 624.

We find the amended information sufficient in form and substance to charge the offense of murder in the first degree and it included the offense of murder in the second degree of which offense defendant-appellant was convicted. Clearly, the amended information charges a willful, deliberate and premeditated killing. An information following the same general form was approved by this court in State v. Fletcher, Mo.Sup., 320 S.W.2d 476. And see State v. Finn, supra, 243 S.W.2d 67, 70(1). All of the essential elements of the crime of murder in the first degree are sufficiently alleged. Further, since no attack was made upon the amended information before the trial, any indefiniteness in the description of the way the crime was committed may not be considered after verdict. State v. Dildine, supra; State v. Rizor, supra. Since the amended information contained a sufficient statement of the essential elements of the offense charged, including time and place, it was sufficient to inform defendant of the charge she was called upon to defend against and to also bar any further prosecution for the same offense.

Did the court err in failing to instruct the jury on manslaughter? Under Supreme Court Rule 26.02(6) the court was required to 'instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict. * * *' Appellant insists that she was entitled to an instruction on manslaughter on the basis of her own testimony. A brief review of the evidence is required. The record shows that appellant is a woman about 51 years of age and weighing 235 pounds. The deceased was a woman about 42 years of age, five feet four inches tall and weighing about 135 pounds. Eye-witnesses to the killing referred to appellant as 'the heavy-set lady' and to the deceased as 'the little lady.' Appellant was a real estate saleslady and she owned and operated a maid service. During the last war she had been a government welfare counselor at the Remington Arms plant. For twenty-three years prior to obtaining a divorce in March, 1957, appellant had been the wife of Rev. F. W. Haynes, who was a carpenter by trade and the pastor of St. Mark's Community Baptist Church in Kansas City, Missouri. Beginning in 1954 appellant heard rumors that her husband was carrying on an improper relationship with a Mrs. Bertha Ernestine Moten, a widow woman, hereinafter referred to as the deceased, who was a...