State v. Jenkins

• Decision Date: 25 March 1931
• Docket Number: 30916
• Parties: The State v. Elmer Jenkins, Appellant
• Court: Missouri Supreme Court

37 S.W.2d 433

327 Mo. 326

The State v. Elmer Jenkins, Appellant

No. 30916

Supreme Court of Missouri

March 25, 1931

Appeal from Audrain Circuit Court; Hon. W. C. Hughes Judge.

Affirmed.

Stratton Shartel, Attorney-General, and Edward G. Robison, Assistant Attorney-General, for respondent.

(1) The defendant's reputation for truth and veracity had not been assailed by the State and the mere fact that there was a conflict between his testimony and that of other witnesses is not, in contemplation of law, such an attack upon the defendant's reputation for truth and veracity as would warrant the defendant in offering evidence in his behalf as to his general reputation for truth and veracity in advance of a direct attack thereon by the State. State v Fogg, 206 Mo. 716. (2) Defendant may not complain of an instruction upon murder in the first degree, having been convicted of murder in the second degree. State v Christian, 66 Mo. 142; State v. Green, 229 Mo. 654; State v. Lloyd, 263 S.W. 214. (3) The court at the request of the State fully instructed the jury on the question of reasonable doubt, and at the request of defendant further instructed the jury on this same phase of the case. In addition to these instructions the defendant requested another instruction on reasonable doubt. The refusal of this instruction was proper, for the reason that it was covered by the two given instructions. State v. Miller, 307 Mo. 374; State v. Benson, 8 S.W.2d 54; State v. Vanvelkenberg, 299 S.W. 126. (4) Even if the evidence had warranted the giving of defendant's Instruction No. 10, it did not properly declare the law in that it told the jury that if deceased was drinking and under the influence of liquor, and at the time of the difficulty the deceased had been drinking and was to any extent under the influence of liquor, or appeared to be so, then it is a circumstance for the consideration of the jury in considering the reasonable cause for defendant's apprehension of great personal injury to himself. This instruction attempted to submit this issue even though the deceased had not been drinking, but only appeared to have been drinking. It was broader than the issue attempted to be submitted. The evidence did not warrant the giving of this instruction. There is no evidence that deceased, when drinking, was a rash, turbulent, quarrelsome and dangerous man. The court would have been justified in withdrawing the evidence on this issue from the consideration of the jury. State v. Morledge, 164 Mo. 527. (5) The alleged error of quotient verdict, as to the punishment imposed on defendant, is not supported by the record. It is not shown that the jury had anything to do with making the figures on the sheet of paper found in the jury room, or that if they made the calculations that it was agreed beforehand that they would be bound by and abide the result of the calculation. Even conceding that the calculations were made by the jury in arriving at the number of years of imprisonment, yet it is the prearranged and mutual agreement in advance of the verdict on punishment to be bound by the unascertained result of the averaging of the individual estimates of the jurors that is condemned, and there is no proof of such an agreement. State v. Richmond, 12 S.W.2d 37; Thompson v. City of Lamar, 17 S.W.2d 974.

OPINION

Henwood, J.

By an information filed in the Circuit Court of Audrain County, the defendant, a Negro, was charged with murder in the first degree, the victim of the alleged murder being James Glover, a Negro. The jury found the defendant guilty of murder in the second degree and assessed his punishment at imprisonment in the penitentiary for thirty-five years. He was sentenced accordingly, and appealed.

It is undisputed that the defendant shot Glover in the abdomen and right groin, with a "single barrel, number twelve," shotgun, about 10:30 o'clock Sunday night, September 1, 1929; and that Glover died, two or three hours later, as the result of gunshot wounds so received; and that the shooting occurred on the west side of Walnut Street, between Railroad Street and Lafayette Street, in the city of Mexico, in Audrain County, in front of a two-story, double-store building, in which Tom Ed Harrison, a Negro, operated a grocery store and a restaurant on the first floor, and in which Harrison and Glover occupied living rooms on the second floor. There is no conflict in the evidence except as to the circumstances under which the shot was fired.

According to the evidence adduced by the State, about 10:15 o'clock on the night in question, when several Negro men and women were on the sidewalk in front of the Harrison building, Glover entered the passageway at the north side of the building. Shortly thereafter, the defendant joined the crowd, and, while he was engaged in conversation with Eunice Hord, a Negro woman, at or near the entrance to the passageway mentioned, Glover appeared and interrupted the conversation. Following an altercation between Glover and the defendant, the defendant walked rapidly backwards into Walnut Street, pursued by Glover. Glover was cursing and threatening the defendant. The defendant picked up some rocks as he backed into the middle of the street, then dropped the rocks, and ran south, on Walnut Street, to Lafayette Street, and east on Lafayette Street. Glover stood in the street about three minutes, then walked back to the sidewalk in front of the Harrison building, and stood there, leaning against the building, between the entrance to the restaurant and the stairway leading to the second floor. Within five or ten minutes, the defendant returned to the scene with a shotgun, and, advancing from the middle of the street toward Glover, shouted, to a bystander who was between him and Glover: "Look out," or "Get out of the way." Harrison, then in his room on the second floor of the building, heard this shout, and, seeing the defendant in the street with a gun, shouted to the defendant, from a window: "Put that gun down; don't you shoot." The defendant continued to advance toward Glover, and with the gun pointed at him, said to him: "G -- d -- you, I'm going to shoot you." Glover standing "perfectly still," replied: "Shoot, you son-of-a-b --, shoot." At that instant, the defendant fired, and Glover ran forward, toward the defendant, in a falling position, then turned around and dragged himself up the stairway, to the door of his room. When the defendant fired the shot, he was from ten to twenty-five feet away from Glover. The physician who examined Glover shortly after the shooting testified that Glover was "drunk." The officers were unable to find the defendant that night, after the shooting, but he "voluntarily gave himself up" the next morning.

The defendant testified: He was twenty-four years of age, and had been working for the A. P. Green Fire Brick Company, in Mexico, for eight or nine years. He went to Harrison's restaurant, in company with "another boy," about 10:15 or 10:20 o'clock on the night in question. He called Eunice Hord to the passageway at the north side of the Harrison building, and, while he was talking to her, Glover "come up," and put his arm around Eunice, and said to her: "How's my little wife?" He (the defendant) said to Glover: "I wouldn't do that; I always treated you like a man; I don't see why you want to try to rough over me all the time." Thereupon, Glover began "cussing" him; and called him "a black son-of-a-b --;" and Glover told him that he didn't give a d -- about him, and that he would cut his (the defendant's) throat. Then, he (the defendant) ran around in front of the restaurant and Glover followed him. He picked up some rocks, and Glover told him, if he threw the rocks, he (the defendant) "was born to die." He dropped the rocks, ran to his home, got his gun, and, when he came back, Glover said: "Go ahead and shoot, you little son-of-a-b --, because, if you don't shoot me, I'm going to get you." As Glover said this, Glover "started toward" him, and he "just throwed the gun up and shot." He thought Glover had been "drinking." He did not go home and get his gun with the intention of shooting Glover. He came back, with the gun, to take Eunice to her home. He "didn't know whether he (Glover) had anything or not," and he got the gun because he was "scared." He had been keeping company with Eunice for two or three years. During the previous fall, when he and Eunice had a "little argument" in front of a pool hall, Glover "come up" with a knife and "run" him away. And, sometime during the previous winter, Glover came to Eunice's home, and cursed and abused him, and "started toward" him with a knife, and he (the defendant) ran "out the back door." On cross-examination, he said that he got the gun, on the night of the shooting, "for protection;" that he did not intend to shoot Glover "unless he (Glover) tried to bother" him; that he did not "level the gun" at Glover, and "didn't know whether he shot him until the next day;" that, when he went to his home to get the gun, and when he came back to the restaurant with the gun, his mind was in a "cool state;" and that, after the shooting, he threw the gun away, "down there by the creek," near the restaurant, and "run out towards Auxvasse." On redirect examination, he said he was "mad and scared both" at the time of his "first encounter" with Glover on the night of the shooting, when Glover "chased" him into the street.

Eunice Hord testified, on behalf of the defendant: She had been keeping company with the defendant for two or three years prior to the night of the shooting. She had not kept company with Glover for about seven years. She "had a little boy by him," but had never been married to him. While she was talking to the defendant on the...