State v. O'Leary

• Decision Date: 01 December 1931
• Docket Number: No. 31444.,31444.
• Citation: 44 S.W.2d 50
• Parties: STATE v. O'LEARY.
• Court: Missouri Supreme Court

44 S.W.2d 50

STATE v. O'LEARY.

No. 31444.

Supreme Court of Missouri, Division No. 2.

December 1, 1931.

Appeal from St. Louis Circuit Court; James E. Green, Judge.

Joseph O'Leary was convicted of manslaughter, and he appeals.

Affirmed.

Bass & Bass, of St. Louis, for appellant.

Stratton Shartel, Atty. Gen., and Edward G. Robison, Asst. Atty. Gen., for the State.

COOLEY, C.

Defendant, Joseph O'Leary, was indicted in the circuit court of the city of St. Louis for murder in the first degree for the killing of William Silvey at said city on September 26, 1929. Upon trial he was convicted of manslaughter, sentenced pursuant to the verdict to ten years' imprisonment in the penitentiary, and has appealed. His motion for new trial challenged the sufficiency of the evidence and certain instructions.

The shooting of Silvey occurred at night in a soft drink establishment operated by one Barnett, which for convenience we shall call, as did some of the witnesses, a saloon. The saloon was about seventy-five feet long, divided by a partition into two rooms. The front room in which the shooting occurred was about twenty-five feet long. In this room were a table and some chairs. A bar extended along and near the west wall. One entered from the street through an ordinary door, passed through a small vestibule, thence through swinging doors into the front room. The table above referred to was located, according to one witness, about the middle of the room. Another witness testified that it stood about twenty feet from the swinging doors.

The state's evidence tended to prove that on the night in question, when defendant entered said room, Silvey and two women were seated at the table above mentioned. Several other patrons were in the place. Defendant thought he knew one of the two women, Miss Black, and spoke to her. It developed that he had mistaken her identity, but she took no offense, and, when defendant offered to buy drinks, she acquiesced and invited him to sit down, which he did. He bought a round of drinks, and Miss Black then bought a drink for the party. Presently she left the table, going to the bar, where she engaged in conversation with others, leaving defendant, Silvey, and the other woman, a Miss Penrose, at the table. There was some conversation between defendant and Silvey, but it did not attract attention. But little of it could be detailed by the witnesses. One witness said Silvey asked defendant if the latter was trying to "cut in on his party." There was also testimony to the effect that Silvey asked defendant if he, defendant, was not an "ex-copper," which defendant admitted, and that Silvey remarked he did not like ex-policemen. About this time Silvey threw the contents of his glass into defendant's face. Without saying anything, defendant rose and went into the back room and wiped the liquor off his face and clothes, remarking to Barnett who was then in the back room: "That son-of-a-bitch hit me." Barnett advised him to go home. He started toward the front door, and as he neared the swinging doors Silvey called to him to come back and "forget this" and bury the hatchet. Defendant returned to the table, and started to sit down, and as he did so Silvey struck him a violent blow on the mouth, causing his lip to bleed, at the same time using offensive language toward defendant.

Again, with commendable self-control and without saying anything, defendant went to the back room or to a washroom and washed the blood from his face, came back past the table, and still without speaking, passed out through the swinging doors and disappeared. The state's evidence was that he was gone fifteen or twenty minutes when he re-entered the room, drew a pistol from his pocket, and fired two, shots at Silvey, who was still at the table on the side farthest from and facing the swinging doors. Both shots struck Silvey in the chest, inflicting mortal wounds of which he died that night or the next day. Defendant did not speak while in the room the last time. He left immediately, and later that night was arrested at a house, not his residence, some ten blocks away. Apparently he tried to escape by the back way, but was thwarted in that attempt. The pistol with which he had done the shooting, as he admitted at the trial, was found where he had hidden it under a mattress. When arrested, he denied that the pistol was his, and denied having been at the saloon where the shooting occurred that evening or for several months prior thereto. He at that time denied any knowledge of the shooting. At the trial he did not attempt to explain that denial.

The state's evidence tended to prove that Silvey was unarmed, and that he did not address or make any hostile or threatening demonstration toward defendant when the latter entered the room the last time; that neither spoke before defendant fired. The evidence indicates that defendant advanced toward Silvey before shooting him. One witness said he advanced at least one or two steps from the swinging doors before drawing his pistol. Another said he was within two feet of the table when he fired, and the doctor who examined Silvey's body after his death testified that one of the wounds was powder burned. There was no evidence that defendant at any time addressed offensive or quarrelsome language to Silvey or to any one present.

At the trial defendant admitted the shooting, claiming it had been done in self-defense. He testified to substantially the same facts as had the state's witnesses relative to the occurrences up to the time Silvey struck him on the mouth, and testified further that the blow loosened three teeth and split his lip; that at that time Silvey cursed him and said he was going to kill him; that he knew Silvey was armed, seeing the handle of a pistol sticking above the waistband of his trousers; that he (O'Leary) took off his topcoat and laid it on the bar and went to the washroom to wash the blood off his face; that as he returned to the room, in passing the table where Silvey was sitting, Silvey started to renew the difficulty; that he started home, and, on leaving the room, he forgot his topcoat and returned for it; that on his return Silvey again renewed the difficulty and threw a beer bottle at him, which struck him; that then Silvey reached for his gun, saying: "I am going to give you some more, you lousy copper;" that defendant then fired two shots; that at the time he believed his life was in danger, and shot to save his life. He also testified that he had been collecting money that day, and had carried his pistol for protection, as he usually did when carrying money he had collected, and had it in his pocket when he first entered the saloon.

One Creed corroborated defendant's testimony as to the occurrences at the time of the shooting, and that Silvey was armed with a pistol which he started to draw. In rebuttal, the state offered evidence tending to show that Creed was not present and that defendant was not wearing a topcoat the night of the shooting.

I. The contention in defendant's motion for new trial that the evidence was insufficient is not briefed, and apparently has been abandoned. It is clearly untenable, and need not be discussed.

II. Defendant complains of the refusal of the court to discharge the jury and declare a mistrial because of certain remarks of the assistant circuit attorney in his argument to the jury. The attorney said: "Gentlemen, I believe when this defendant believed himself aggrieved by something that Silvey did, * * * that he went to his home in the neighborhood, he lived no more than a block or two away, he went to his home and got his gun. Gentlemen, it is perfectly ridiculous to believe that he had that gun previously and that he carried that gun all that evening —" He was interrupted by an objection to "what he believes" and to the reference to defendant "going to his home and getting his gun," because unjustified by evidence, and defendant also asked that counsel for the state be reprimanded and that the jury be discharged and a mistrial declared. There followed some colloquy between counsel; the attorney for the state insisting that the argument was a legitimate inference from the evidence. The court sustained the objection, and directed the jury to disregard the remark of counsel, stating that there was no evidence to support it, but declined to discharge the jury; "to which ruling of the court" defendant excepted.

The complaint, both in the motion for new trial and in defendant's brief here, is, not that the court did not sufficiently reprimand the state's attorney, but only that it did not declare a mistrial and discharge the jury.

There was no abuse of the court's discretion in this ruling. The remark complained of was obviously intended as the statement of an inference drawn by the speaker from the evidence, not the statement of a fact based on information outside the record. There was evidence on behalf of the state tending to show that, when first assaulted by Silvey, defendant wore no coat; that he left the saloon, and in fifteen or twenty minutes came back wearing a "suit" coat, and without further provocation from Silvey drew his pistol and opened fire. He testified that he drew the pistol from his coat pocket. In view of the evidence, we are not prepared to hold that the inference drawn by the state's attorney was unwarranted. But, if it were, the jury would understand that it was merely argument and not to be regarded as evidence. Moreover, the court sustained defendant's objection, and directed the jury to disregard the remark as not supported by the evidence. Clearly the court was right in refusing to declare a mistrial. If trial courts were required to declare a mistrial whenever an attorney in argument to the jury attempted to draw from the evidence an inference or deduction not warranted thereby, it might stimulate the study of logical argumentation by lawyers — a worthy consideration withal — but we fear...