State v. Laspy
| Decision Date | 11 February 1957 |
| Docket Number | No. 45511,No. 2,45511,2 |
| Citation | 298 S.W.2d 357 |
| Parties | STATE of Missouri, Respondent, v. Elsie Mae LASPY, Appellant |
| Court | Missouri Supreme Court |
Rufus Burrus, Independence, for appellant.
John M. Dalton, Atty. Gen., Winston Cook, Sp. Asst. Atty. Gen., for respondent.
STOCKARD, Commissioner.
About six fifteen o'clock of the morning of January 1, 1955, defendant Elsie Mae Laspy shot and killed her husband, Julius Laspy. She has appealed from a judgment imposing a sentence of imprisonment for twenty years for murder in the second degree. Defendant contended that she killed Laspy in self-defense.
The shooting climaxed an all-night party in the Laspy home which was attended by numerous people. There was driking and dancing, and until the incidents that led up to the shooting everyone was having a 'good time.' At midnight Laspy and two other men went to the front of the house and fired two shotguns in celebration of the new year. Defendant saw her husband take the shotguns to the bedroom of the house and there reload them, but where he then put them is not disclosed by the evidence. By five thirty or six o'clock in the morning, in the language of the witnesses, Laspy 'wasn't just drunk, just staggering, but he was pretty well high' and was 'almost over the hill.' According to defendant, she had had two beers and a whiskey highball. It was about this time that Laspy went to the bathroom where the defendant was, and for some reason not explained, cursed her and kicked her in the stomach. He left the bathroom but returned immediately with a pistol, and after waving it in her face, threatened to kill her. During this time the guests were still 'living it up' and none of them heard what was said by Laspy in the bathroom. When Laspy left the bathroom he went to the bedroom, and there was evidence that he was changing clothes preparing to go to work. Defendant testified that he called to her, and that in response to his call she went to the bedroom and sat on the bed. Laspy cursed defendant and again threatened to kill her. He was standing near the door to a closet in the bedroom, and when he repeated the threat to kill defendant and then turned and reached into the closet, defendant picked up a pistol which was lying on the bed and shot him at least three times in rapid succession. He died almost instantly. Shortly after her arrest defendant gave a statement to the police in which she admitted shooting Laspy, and the facts related therein did not in any way indicate that she fired the shots in self-defense. However, she testified at the trial that Laspy had threatened to kill her and she was afraid of him, and that although he did not have a gun in his hands, he had had a gun only a few minutes before when in the bathroom and she knew he always carried a gun, and that when he threatened to kill her and then turned toward the closet, 'I thought he was reaching for a gun to kill me with.' There was no evidence where the loaded shotguns were, but the police found a loaded pistol in the 'left front pocket' of Laspy's trousers.
Two of the guests who were in the living room saw defendant fire some or all of the three or four shots fired by her, but from their location they could not see Laspy. Because of the music from the record player and the other noise of the party they could not hear anything that was said in the bedroom. Apparently one of the male guests was asleep on the bed in the bedroom, but he did not testify, and he and the other guests ran from the house when the shooting started.
Three bullets struck Laspy, but two made only minor wounds. The third struck Laspy in the 'back of the head just left of the occipital bone' and it was this wound that caused his death. Over the objection of defendant, the deputy coroner stated that 'I think the gunshot in the head was the first bullet, that is my opinion.' There is no explanation of how the coroner arrived at this conclusion.
A previous trial of defendant resulted in a verdict of guilty, but a new trial was granted, apparently because the defense counsel died within a day or two following the verdict. In the present trial state's witness Sullivan testified on direct examination that immediately after the shooting he felt of Laspy's pulse to see if he were alive and that Laspy had a flashlight in his hand, and Whether the flashlight was turned on or off was material because the state contended that Laspy was shot from behind while he was using the flashlight to look for something in the closet and this was inconsistent with the facts contended by defendant in support of her claim of self-defense. On cross-examination defense counsel sought to impeach this testimony of witness Sullivan by showing that in the previous trial he had testified that the flashlight was turned off. The prosecuting attorney objected, and following a proper offer of proof, the trial court refused to permit defense counsel to ask the witness if he had given certain answers at the previous hearing and to show the previous testimony of witness Sullivan, and in doing so stated that 'I do not think the testimony of the other trial should be here.' Defense counsel later sought to impeach another witness for the state by showing prior inconsistent statements by the witness at the previous trial. It is difficult to tell exactly what defense counsel proposed to show in this second situation. Although he stated he would make an offer of proof he apparently overlooked doing so. However, in the discussion that followed the previous ruling on the use of the transcript of the testimony at the previous trial was discussed, and this incident is related here for the bearing it has on the previous ruling. The trial court stated that defense counsel would be permitted to use the transcript at the preliminary hearing to impeach a witness because of prior inconsistent statement but not the transcript of the testimony at the first trial. The prosecuting attorney stated that he objected to the use of the transcript at the first trial for the purpose intended 'unless you [defense counsel] stipulate she was convicted in that case.' The ruling of the trial court was that the 'objection to this will be sustained.' The question of proper proof of the contents of the transcript was not involved.
Cross-examination of a witness within the permitted limitations is a matter of right, and one of its permissible purposes is to bring out facts that may tend to show that the testimony of the witness on direct examination is untrue or is not entitled to belief. One method of doing this is to show on cross-examination that the witness has made prior inconsistent statements concerning a material matter. State v. Thompson, Mo.Sup., 280 S.W.2d 838, 840. 'A witness may be impeached by proof of a contrary deposition taken prior to the trial, and by proof of prior contradictory statements made before a grand jury, at a preliminary hearing, at a coroner's inquest, or on a former trial or hearing of the same case.' 3 Wharton, Criminal Evidence, Sec. 923, 12th ed. See also 58 Am.Jur., Witnesses, Sec. 774, and a collection of cases in 11 A.L.R.2d at pages 89-101 and 155-165 in an annotation entitled 'Mode of Proving Former Testimony' where in some of the cases impeachment in the manner here attempted was permitted. In State v. Myers, 354 Mo. 277, 189 S.W.2d 279, it was held that the state could impeach the testimony of a...
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