State v. Heard
| Decision Date | 14 December 1970 |
| Docket Number | No. 55274,No. 1,55274,1 |
| Citation | 460 S.W.2d 570 |
| Parties | STATE of Missouri, Respondent, v. Doris Teresa HEARD, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., James M. Reed, Asst. Atty. Gen., Jefferson City, for respondent.
Jerry D. Perryman, St. Louis, for appellant.
Defendant was charged with second degree murder of one Harold Dean Hendrix. Her defense was self defense. The jury found defendant guilty but was unable to agree upon the punishment, which was then set by the court at 10 years' imprisonment.
The shooting occurred in a bar at 5650 Delmar Boulevard in St. Louis. Defendant was a barmaid there. No question is raised as to the sufficiency of the evidence to sustain the verdict. Therefore, it is not necessary to state the evidence beyond saying that Hendrix entered the bar, told defendant he was going 'to beat her up when she got off from work', and then started to leave. Defendant, who had been drinking, called him back and started shooting, two shots striking deceased, who fell mortally wounded. There was no weapon found on deceased.
The first point which defendant urges is that the court erred in sustaining the state's objection to a question put to defendant as to what was her state of mind at the time she reached for the gun, and another question as to did she think that the deceased was going for his gun. The court sustained the state's objection that these questions called for a conclusion. The claimed error, however, was not preserved in the motion for new trial and, hence, the matter is not before us on appeal, Rule 27.20(a), V.A.M.R.; State v. Thompson (Mo.Sup.) 425 S.W.2d 80, 85; State v. Meiers (Mo.Sup.) 412 S.W.2d 478, 481.
Furthermore, defendant did get before the jury, without objection, her version of what happened: that the deceased, over a period of several weeks, had been forcing his attentions on her, both at work and at her apartment, and had flourished a gun at her; that on the day of the shooting, he came to the bar, threatened to beat her up and reached over the bar and hit her, breaking her nose. Then, according to the defendant, 'He stepped back and went toward his pocket like this (indicating) and the first thing popped into my mind he was going for his pistol, and the only alternative I had was to reach behind the bar and get the pistol that was back there.' She grabbed the pistol, turned around and fired. It is plain the sustaining of the objections did not actually keep defendant from getting her state of mind before the jury.
Defendant next contends that the court erred in permitting the circuit attorney to inquire on voir dire examination whether if defendant were found guilty under the law and the evidence of murder in the second degree, was there anyone on the panel who could not assess the punishment within the range set by law of from 10 years to life. One juror said she could not assess punishment in that range no matter what the evidence was, and the court sustained the state's challenge for cause. Defendant argues such an inquiry requires the prospective juror to commit himself to a future course of conduct predicated upon actions which have not occurred and which may not occur. However, there was no effort to commit the jury to any particular verdict or punishment (as contrasted to State v. Kiner (Mo.Sup.) 441 S.W.2d 720, where the jurors were asked whether if the state proved the guilt of defendant beyond a reasonable doubt, would they vote to find him guilty, and State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046, where the jurors were asked whether or not they would assess the death penalty), but only inquiry as to whether if there were a conviction the jury would assess punishment within the permissible range.
Defendant also argues that by its voir dire inquiries the state was emphasizing a false issue, because since the jury was to be instructed that if they found the...
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