State v. Littlejohn

• Citation: 204 S.W.2d 750,356 Mo. 1052
• Decision Date: 13 October 1947
• Docket Number: 40461
• Parties: State v. Robert Lee Littlejohn, Appellant
• Court: United States State Supreme Court of Missouri

204 S.W.2d 750

356 Mo. 1052

State v. Robert Lee Littlejohn, Appellant

No. 40461

Supreme Court of Missouri

October 13, 1947

Appeal from Circuit Court of City of St. Louis; Waldo C Mayfield, Judge.

Reversed and remanded.

I Joel Wilson for appellant.

(1) The trial court erred prejudicially in neglecting, refusing and failing to instruct the jury upon the issue and law of manslaughter as a part of the law of the case inasmuch as there was evidence introduced and submitted to the jury by the court at the instance of both the state and defendant to the effect that the deceased had unlawfully and violently assaulted and struck the defendant the initial blow with his fist upon the neck and body immediately preceding the shooting which resulted in the death of the deceased. Sec 4070, R.S. Mo. 1939; State v. Robinson, 185 S.W.2d 638; State v. Creighton, 52 S.W.2d 556; State v. Wright, 175 S.W.2d 666; State v. Green, 55 S.W.2d 965; State v. Heath, 121 S.W. 149; State v. Starr, 38 Mo. 270; State v. Bongard, 51 S.W.2d 84; State v. Biswell, 179 S.W.2d 61. (2) The trial court erred prejudicially in failing, neglecting and refusing to instruct the jury at defendant's request that if the deceased, during the assault upon the defendant, drew a knife from his pocket and continued to advance upon him with the blade open, threateningly and belligerently, that defendant would be warranted in assuming that deceased intended to kill or do him some great bodily harm. State v. Starr, 38 Mo. 270; State v. Sloan, 47 Mo. l.c. 606; Kelley's Crim. Law & Procedure (4th Ed.) sec. 396, p. 359; Clark's Hand-Book of Crim. Law, ch. 8, sec. 65, p. 16; Grigsby's Criminal Law, sec. 253, p. 210; State v. Musick, 101 Mo. 260. (3) The court erred prejudicially in failing, neglecting and refusing to instruct the jury at defendant's request that under all the circumstances in evidence he should not be required to nicely gauge force to be used by him to repel the attack. State v. Creed, 252 S.W. 678; State v. Hopkins, 278 Mo. 388, 213 S.W. 126; State v. Traylor, 98 S.W.2d 628. (4) The court erred in failing and refusing to give defendant's proffered Instruction marked "C" to the effect that if the jury found and believed from the evidence that the deceased was armed with the knife mentioned in the evidence, and was at the time of the shooting unlawfully and feloniously attacking, threatening or advancing belligerently upon the defendant with said knife in his possession, exposed to defendant's view, the defendant would be justified in assuming that the deceased intended to use said knife in a manner to kill him or to do him some great bodily injury, and the defendant should be acquitted on the ground of self-defense if he shot and killed deceased in repelling such assault. See authorities under point (2).

J. E. Taylor, Attorney General, and Robert L. Hyder, Assistant Attorney General, for respondent.

(1) The court did not err in failing to instruct the jury upon the issue of manslaughter. State v. Malone, 327 Mo. 1217, 39 S.W.2d 786; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Carroll, 333 Mo. 558, 62 S.W.2d 863. (2) The court did not err in overruling appellant's demurrers offered at the close of the State's case and at the close of the entire case. (3) The court did not err in overruling points 6 to 15, inclusive, in appellant's motion for new trial. State v. Peterson, 154 S.W.2d 134; State v. Cooper, 32 S.W.2d 1098; State v. Byrnes, 177 S.W.2d 909; State v. O'Leary, 44 S.W.2d 50; State v. Carroll, 333 Mo. 558, 62 S.W.2d 863.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Defendant was convicted of murder in the second degree and his punishment assessed at ten years imprisonment in the penitentiary. Herein upon appeal defendant assigns errors of the trial court in refusing to direct a verdict of acquittal, and in failing to give an instruction on manslaughter. Errors are also assigned in refusing instructions proffered by defendant.

The homicide occurred near midnight, November 11-12, 1944, in a "gangway" or areaway off Kennerly Avenue in the City of St. Louis. Defendant shot deceased with a 22-caliber "Boston Bulldog" revolving pistol. The bullet passed through deceased's left lung, and wounded the pulmonary artery at a point one inch from the heart.

About two weeks prior to the homicide, according to defendant's testimony, defendant had loaned deceased a dollar to pay for some drinks, the deceased promising to repay defendant when they next met. On the night of the homicide defendant chanced to hail a taxicab in which deceased was a passenger, and, while in the taxicab, defendant and deceased entered into a discussion concerning the loan. The taxicab driver testified the conversation was "kind of an argument like," although a third passenger testified, "it was just a jovial conversation." When the taxicab stopped on Kennerly Avenue, near where the deceased lived, the deceased said, "I haven't got any money." The taxicab driver testified, "I say, 'You haven't got any money?' He said, 'No sir, but I'll go back and get it,' and he . . . looked through his pockets to be sure, and after he looked through his pockets, he went on back to see about the money. . . . I got back in my cab and sat down. In the meantime this other fellow (defendant), he decided to go back and see what he was doing out there so long, and when he went back, why, I could hear him. I got -- I thought I would go back and see what was happening. . . ." The witness heard them "wrangling back there . . . as I was coming on back I could hear, and I was trying to see, I couldn't see, and then I heard the gun fired and I turned around."

Defendant testified, "I figure when he (deceased) gets out there -- I am expecting him to pay me too; that's why I went back there (into the gangway near deceased's home) . . . When I walks back almost where he was at, he . . . said a curse word -- what did I come back there for. I said, 'Well, I come back here because I thought you might give me my money.' . . . and he rushed on me and hit me. Understand I turned around and started back. When I turned my back to him, he knocked me down. . . . When I gets up I seen him pull something out of his pocket; it looked like a knife. The blade was all I could see. It wasn't so awfully long; I guess about as long as your finger; and he rushed at me with the knife, and I ran . . . and he rushed me and come mighty near catching me. I just pulled the gun out and shot back. . . . It wasn't my intention really to kill him . . . I am trying to stop the man; let me get out of that gangway."

A witness living in a house fronting on Kennerly Avenue and located just east of the gangway testified that she saw the three men enter the gangway. She recognized the voice of deceased who was arguing, and later heard the fatal shot. Another witness who was present in her home "in the rear" off Kennerly Avenue heard two men arguing, and saw a "flash from the gun." After the homicide an officer searched deceased's body, finding a closed pocket knife in the right-hand trouser pocket.

The State's evidence showed a homicide by the use of a deadly weapon, a pistol. The defendant testified he really had no intention to kill; however, in intentionally using a pistol, a weapon likely to produce death, firing at or in the direction of deceased, defendant was presumed to intend the consequences which would naturally and probably follow such intentional use of such a weapon. State v. Hart, 309 Mo. 77, 274 S.W. 385. See also State v. Gaters, Mo. Sup., 39 S.W. 2d 548. The trial court did not err in refusing to direct a verdict of acquittal.

We are of the opinion, however, the trial court erred in failing to submit to the jury the issue of defendant's guilt of the crime of manslaughter. Where the record shows personal violence -- a battery -- inflicted upon the slayer by the deceased at the time of the homicide, the general rule is that a manslaughter instruction is called for; and this is true though the evidence consists of the testimony of the defendant alone. Personal violence is the standard exacted by the law whereby a jury may infer the heat of passion which reduces the grade of a homicide from murder to manslaughter. State v. Creighton, 330 Mo. 1176, 52 S.W. 2d 556, and cases therein cited; State v. Starr, 38 Mo. 270 at page 277. Proof of an initial assault and battery upon defendant by deceased is substantial evidence of the lawful provocation entitling the defendant to an instruction on manslaughter, because it measures up to the standard exacted by the law and in point of fact warrants an inference that heat of passion was engendered thereby. State v. Creighton, supra.

In the case of State v. Carroll, 333 Mo. 558, 62 S.W. 2d 863, cited by the State, the evidence did not show the deceased inflicted actual personal violence -- a battery -- upon the defendant. In that case no instruction on manslaughter was required. In the case at bar the defendant (alone) testified of an unprovoked assault and battery upon him at a time immediately or closely preceding the homicide. (No such time intervened between the battery and the homicide as would raise the question whether sufficient cooling time had elapsed to make it legally conclusive there was no heat of passion. See State v. Robinson, 353 Mo. 934, 185 S.W. 2d 636.)

It is contended by the State that defendant's own testimony negatived heat of passion, and that no question of manslaughter was in the case. We are reminded by the State that defendant testified, "It wasn't my intention really to kill him . . . I am trying to stop the man; let me get out of that gangway." In the case of State v Creighton, supra, this court considered a like contention....