State v. Loston

• Decision Date: 13 November 1950
• Docket Number: No. 41934,No. 1,41934,1
• Citation: 234 S.W.2d 535
• Parties: STATE v. LOSTON
• Court: Missouri Supreme Court

Page 535

234 S.W.2d 535

STATE v. LOSTON.

No. 41934.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1950.

Rehearing Denied Dec. 11, 1950.

Morris A. Shenker, St. Louis, for appellant.

J. E. Taylor, Atty. Gen., R. Wilson Barrow, Asst. Atty. Gen., for respondent.

LOZIER, Commissioner.

Appellant (hereinafter called defendant) was convicted of manslaughter and sentenced to ten years imprisonment. On this appeal she assigns: insufficiency of the evidence; improper admission of evidence; failure to instruct as to suicide, self-defense and circumstantial evidence; and erroneous instructions as to accident and use of an 'alias.'

Defendant offered no evidence. The state's case was: Ben Washington, the deceased, died in St. Louis City Hospital No. 2, February 8, 1948, as a result of shotgun pellet wounds. He had sustained such wounds that morning while in the apartent where he and defendant lived. This was a ground floor, two-room apartment at 2216 Delmar. The west room, the kitchen, was about 14 feet wide and 12 feet long. Its one outside door was on the west, and it had at least one window, apparently on the south. Along its east wall was a cookstove, and through such wall was a door into the bedroom on the east. Somewhere in the kitchen was a sink (apparently on the north wall), a 3 by 5 or 6 foot table (on either the east or south wall) and 3 or 4 charis.

Zella Brown testified: that on that morning she, defendant and Hattie Lester were in the kitchen when Ben came into the room; that it was cold that day and she (Zella) and Hattie were sitting in chairs near the stove warming their feet and that defendant was standing by the stove; that Ben came into the kitchen through the outside door, walked to a spot by the stove and said, 'Good morning'; that she never heard Ben say anything after that; that he was 'warming his hands'; that Zella and Hattie said, 'Good morning'; that defendant said to Ben, 'What are you standing there looking so sanctified?' and Ben 'just said, 'Oh, Miss Martha',' and he 'still stood there'; that defendant then said, 'You are standing there so sanctified, I am going to kill you'; that neither defendant nor Ben said anything else; that Ben 'didn't do nothing; just stood there where he was standing'; that defendant walked into the other room and 'got the shotgun,' returned and stood right there * * * in front of him'; that she 'wasn't gone nary a minute'; that Ben 'just stood there with his back to the stove'; that neither Ben nor defendant said anything; that she (Zella) sat there, head down, looking at the floor 'with my feet down this way (indicating), trying to warm them and Hattie went out of the room * * * and slammed the door. And when she slammed the door I heard the gun fire and I jumped right straight up, and I went right on out of there. It like to scared me to death because that gun jarred my head'; that she (Zella) was looking down when the gun went off and she didn't 'know whether she (defendant) shot the gun or him'; that after she (Zella) ran out, defendant called her back and asked her to call the police and that she saw no injuries or wounds on defendant that morning. On cross-examination Zella said she had seen the shotgun 'when she (defendant) first got it, in the summertime.' Zella gave no response to two questions as to when she had first seen the gun that morning; and then said she didn't see it, first, until defendant 'came out of the house that morning,' later, until 'they carried it down to headquarters,' and, finally, 'until they had it at headquarters.'

Officer McCallum and his partner, Broussard, arrived on the scene within a very short time. They found Ben on the kitchen floor, bleeding and unconscious, and defendant standing in the kitchen. McCallum asked her what had happened and she said 'Ben Washington had shot himself. * * * I asked, 'How did he shoot himself?' and she said, 'He had the gun in his hand.' * * * She said that she had attempted to take the shotgun from him and the gun went off and wounded Ben Washington. * * * I asked her, 'Where is that gun?' She said, 'It is in the other room, I guess, I don't know where I put it.'' McCallum and defendant went into the bedroom where he saw the gun standing in a corner. McCallum handed it to another officer, Burgoon (who had arrived at the scene after McCallum), in defendant's presence. Burgoon placed identification marks upon the gun.

McCallum saw an empty shotgun shell lying in blood on the kitchen floor, a short distance from Ben's arm. This was also observed by Officers Flynn, Burgoon and Barnhart. Flynn marked it for identification purposes. Sgt. Ruff, police ballistics expert, testified that, in his opinion, based upon test firing of the gun, that particular shell had been fired from that shotgun.

In response to Officer Flynn's inquiry as to what had happened, defendant stated that she had been showing the gun to two friends in the kitchen, that Ben came in and grabbed the gun with his right hand and that it was discharged; and that Ben had said, 'Give me that gun' when he grabbed it. Burgoon testified that later defendant stated to him that 'she had the gun showing it to some friends and Ben Washington came in and attempted to take the gun from her and that the gun went off accidentally.'

Vincent McCormick, deputy sheriff, testified as to a non est return upon a state's subpoena for Hattie Lester. The testimony of Dr. Russell White is hereinafter referred to.

In contending here that the state failed to make a submissible case, defendant bases her argument solely upon the portions of Zella's testimony favorable to her. Defendant says: 'Certainly the testimony of the officers and the physician could not in any way sustain the burden of proof which is cast upon the state in this cause to prove beyond a reasonable doubt the charges which it has imposed upon the defendant, and the testimony of the only other witness, namely, Zella Brown, could in no way sustain this burden of proof. Certainly there was no showing by the state of any malice or wilfullness or premeditation on the part of the defendant at the time of the alleged shooting. Certainly there was no evidence at all that the defendant ever, at any time, had a shotgun in her hands or that she ever fired a gun at the deceased. Certainly there was no evidence that the death of Ben Washington resulted by reason of the actions of Martha Loston.'

This argument is directed against the weight of the evidence and not against its sufficiency to make a submissible case. Determination of defendant's guilt or innocence was for the jury. The state was required only to produce 'substantial evidence to sustain the conviction', State v. Harmon, Mo.Sup., 296 S.W. 391, 395, or evidence upon which the 'jury reasonably could find the issue thereon'. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 52. We have summarized the evidence and think that the state's evidence was substantial. It is sufficient to refer only to the evidence as to defendant's statement ('I am going to kill you') to deceased prior to the shooting, and her voluntary statements to police officers both before and after her arrest. The weight and credibility of Zella Brown's testimony was for the jury. State v. Harmon, supra. We rule this assignment against defendant.

Defendant has briefed and argued here the propriety of the court in permitting, over her objection, a doctor on the city hospital staff, Russell White, to testify. Dr. White had examined defendant after her arrest. It is defendant's position that such examination violated her constitutional rights against self-incrimination. However, she has not preserved this issue for our review. It was not assigned as error in her motion for new trial. State v. Davis, Mo.Sup., 196 S.W.2d 629.

Defendant assigns as error the failure to instruct upon suicide and self-defense. There was no evidence whatever which would have justified the giving of an instruction as to either of these matters.

Defendant also contends that the court erred in 'failing to give to the jury a requested instruction dealing with the law of circumstantial evidence.' Examination of the transcript shows that defendant did not request this, or any other instruction. Defendant asserts that there was no direct proof or evidence of the essential elements of the offense charged and: 'If, then, it is determined that the evidence in this case as presented by the state is circumstantial in nature, it thereupon becomes the duty of the trial court to instruct upon the law as it applies to circumstantial evidence.' (Italics ours.)

Such an instruction is not mandatory under Sec. 4070, Mo.R.S.1939, and Mo.R.S.A. where at least part of the state's evidence is direct. State v. Famber, 358 Mo. 288, 214 S.W.2d 40; State v. Mansker, 339 Mo. 913, 98 S.W.2d 666; and State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763. The cases cited by defendant announce and apply this principle.

Had defendant requested such an instruction its refusal would not have been error, as the state's evidence was not wholly circumstantial. State v. Hutsel, 357 Mo. 386, 208 S.W.2d 227; State v. Cole, Mo.Sup., 188 S.W.2d 43; State v. Foster, 355 Mo. 577, 197 S.W.2d 313. And see Missouri cases cited, 23 C.J.S., Criminal Law, Sec. 1250, note 26, page 811.

Here the state's case was based chiefly upon the direct evidence of a witness present at the time of the tragedy. Zella Brown was sitting within a few feet of defendant and deceased. She heard defendant's threat and heard the gun fired. In her direct examination she said she saw defendant go into the other room and return with the gun. This was direct evidence of a witness present in the kitchen that morning who saw and heard everything except what happened immediately before the fatal shot was fired. That she had her head down when the gun was discharged, and that she did not see whether deceased grabbed the gun, does not make her testimony as to other facts ...