State v. O'Kelley
| Citation | 213 S.W.2d 963 |
| Decision Date | 11 October 1948 |
| Docket Number | 40967 |
| Parties | State of Missouri, Respondent, v. William O'Kelley, Appellant |
| Court | United States State Supreme Court of Missouri |
From the Circuit Court of the City of St. Louis Criminal Appeal Judge William H. Killoren
Reversed and Remanded
Defendant was convicted of murder in the second degree and was sentenced to fifteen years imprisonment in the penitentiary. He has appealed.
The state's evidence tended to show that about 11:30 p.m January 11, 1947, defendant had his brother-in-law take him from 3024 Rutger avenue to the Berl hotel, operated by one Broady, at 3824 Finney avenue in the city of St. Louis, Missouri. Defendant asked his brother-in-law to wait for him and said he would return in a few minutes. Defendant was gone about forty minutes. When he returned, he got in the automobile and was taken to the intersection of Page and Vandeventer avenues, where defendant left without saying anything about what had happened at the hotel.
When defendant entered the Berl hotel he went immediately to the kitchen, where he indulged with three others in a game of stud poker. Defendant was seated at a table opposite Richard Arnette Delk (the deceased), with Joseph Elam on defendant's left and Hobart Johnson on his right. Defendant "had a whole roll of money," "a big roll of bills," when he entered the game, but, as the game progressed, defendant was the loser and finally went broke. Later, Delk won a "pot", pulled in the money and began to separate the paper money from the silver. The defendant got up from the table, took off his overcoat, laid the coat across the table and said: "Let me have ten dollars on my coat." No one said anything, although both Delk and Elam had money on the table. Defendant took his coat off of the table and turned, as if to go out of the door, then suddenly he turned back, drew a pistol, and said: When defendant drew the pistol, Delk pushed his chair back from the table, raised up and started to move away with his money in his hands. While Delk was moving back, defendant fired the pistol and shot him. As Delk was falling to the floor, the defendant took the money off the table and left the room. Johnson and Elam ran out of the room while Delk was falling and before defendant had departed, but Broady, who was in the front of the hotel, heard the shot and saw defendant run out of the front door.
There was testimony that Delk received a gunshot wound in the lower abdomen or upper right leg. When the officers arrived, about twenty minutes after twelve p.m., Delk was lying on the floor in a pool of blood and appeared to be dead. The report of a postmortem examination upon the body of the deceased, admitted by agreement, showed "cause of death: gunshot wound of the right thigh."
Defendant was arrested by a police officer on the corner of Compton and Pine about 2:30 on the morning of January 12, 1947. The officer obtained a revolver from the defendant's attorney and defendant stated to the officer that he had used the revolver "in the shooting of Richard Delk." Defendant also had two 38 caliber cartridges in his pocket which fit the revolver.
In his own defense, the defendant testified that he had his brother-in-law take him "over to this hotel on Finney * * * to get that gun which is displayed here and the pawn tickets which they had there previous to this night." Defendant identified the gun as his own and said that on the 8th or 9th of January, previous to the occasion in question, he had been loaned money on the gun after he had lost what money he had in his pocket in a poker game with Elam, Delk, Broady and others at this same hotel. On January 11, 1947, he had gone there to get his "gun out of pawn" and to get tickets for his jewelry. He said he had given Broady, the hotel operator, an insignia ring, a diamond ring, a wrist watch and chain and a lady's watch. The jewelry belonged to him, and he had delivered it to Broady. When defendant came to the hotel on January 11th, he asked Broady for his gun and the pawn tickets. He had $180 or $190 on him and he gave Broady the amount of money he owed him on the gun. Broady did not return the gun immediately and defendant went back to the kitchen, where Elam, Johnson and Delk were playing cards. They induced him to join them in a game of poker and, while they were playing, Broady brought the gun in and laid it down on the table beside the defendant. It was loaded, but defendant said he did not load it. Defendant was dressed in his regular clothes, but had on an overcoat and sat in the game with his overcoat on. Defendant was the loser in the game and, after forty-five or fifty minutes of playing, had lost some $125 to $130. Defendant testified: "While we were playing I noticed that a card slid down between one of them's legs, and I protested, and that is when we got into the scuffle; fact was, the gun was laying on the table, and he reached for it and I grabbed for it at the same time, and he swung across my head and while he was swinging like that, we both were scuffling for the gun, the gun went off, and, of course, he stepped aside." Defendant said he referred to Delk; that Delk struck him when he cautioned him about the card; that Delk struck him before the struggle for the gun began; and that Delk reached for the gun and the two were scuffling over the gun. Defendant said "when I cautioned him about the card between his legs, that is when he come at me, and we both reached for it at the same time." He further said:
Defendant said that, after Delk was shot, he lifted him up and put him on a chair. Delk after defendant to get a doctor, but Broady came in and told defendant to leave and said, he, Broady, would get the doctor. Defendant denied that he ever put his coat on the table, or asked for a loan of ten dollars, or grabbed the money off the table. He said he had had no trouble with Elam or Delk before, although Elam had loaned defendant money before. Defendant said that, when he left the hotel, he got in the automobile with his brother-in-law and went to Vandeventer and Cook avenue where he took a taxi and went over to see Ellis Outlaw, his attorney. He emptied the gun as he got on Cook avenue or around there some place and left the gun at Ellis Outlaw's house. When he was arrested he was taken to the city morgue and shown the body of Richard Delk, but said he made no statements. He denied having made any such statements as were subsequently testified to by police officer Guybert Carter.
Officer Guybert Carter, in rebuttal and on behalf of the state, testified that he arrived at the scene of the shooting about 12:15 a.m., on January 12, 1947, and that he arrested the defendant around 2:30 a.m., on the same date, and took him to the Ninth District Police Station at 3021 Lucas avenue. The officer testified:
The court instructed the jury on murder in the second degree, on manslaughter and on the right of self-defense. The self-defense instruction assumed that defendant shot and killed the deceased; it begins as follows: "On the right of self-defense the Court instructs you that if, when defendant, William O'Kelley, shot and killed the deceased, Richard Arnette Delk, he, the defendant, had reasonable cause to apprehend a design on the part of Richard Arnette Delk to take his life or to inflict upon him some great personal injury, and that to prevent such apprehended injury he shot and killed Richard Arnette Delk, * * * ."
Instruction 2, on manslaughter, contained these words: " * * * and under such circumstances that it was not justifiable or excusable homicide, and not in the lawful defense of his person, as defined in other instructions, * * * ." The instruction further contained certain definitions, towit,
Defendant tendered and asked the court to give an instruction on defendant's theory of accidental death based upon defendant's testimony. The instruction was refused and its refusal was assigned as error in the motion for a new trial. No such specific assignment of error is made on this appeal, although in...
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