State v. Luttrell

• Decision Date: 08 April 1963
• Docket Number: No. 1,No. 49444,49444,1
• Citation: 366 S.W.2d 453
• Parties: STATE of Missourl, Respondent, v. Fred LUTTRELL, Appellant
• Court: Missouri Supreme Court

Page 453

366 S.W.2d 453

STATE of Missourl, Respondent, v. Fred LUTTRELL, Appellant.

No. 49444.

Supreme Court of Missouri, Division No. 1.

April 8, 1963.

Charles M. Shaw, Clayton, for appellant.

Thomas F. Eagleton, Atty. Gen., Albert J. Stephan, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

DALTON, Presiding Judge.

By an information filed in the Circuit Court of St. Charles County on January 6, 1962, the defendant was charged with murder in the first degree. He was convicted of murder in the second degree and his punishment assessed at 20 years' imprisonment in the state penitentiary. He has appealed from the judgment and sentence entered against him. While defendant was represented by able counsel in the trial court, he is not represented by counsel in this court and he has not favored us with a brief. We must therefore review the assignments of error in his motion for a new trial and further examine the record as required by Supreme Court Rule 28.02, V.A.M.R.

The State's evidence tended to show that, on November 6, 1961, the defendant resided with his wife, Velma, and a stepdaughter, Judy Walker, age fourteen years, in a trailer in St. Peter's, St. Charles County, Missouri.

Wallace B. Orsech, hereinafter referred to as the deceased, was a police officer of the St. Louis Metropolitan Police Department. He resided in St. Louis County and was not on duty at the time he was killed. Orsech was married, but had had marital difficulties over money matters and was not living with his wife either on the day of his death or on the preceding day. Mr. and Mrs. Orsech met the defendant and his wife for the first time on December 31, 1960, at a New Year's Eve party held at the Orsech home. Mrs. Orsech had not visited defendant's home, but Mr. and Mrs. Orsech had seen defendant and his wife several times socially prior to November 6, 1961, and defendant and his wife had visited the Orsechs at their house on Hanley Road in St. Louis County.

About 11 o'clock on the evening of November 4, 1961, the deceased, who was off duty, came to the home of one Alton K. Love in St. Louis County. He was then dressed in a police uniform and had with him his service revolver that had been issued to him by the Metropolitan Police Department, 'a special thirty-eight.' At the Love home the gun was in a holster attached to a Sam Browne belt which the deceased wrapped around the weapon and placed it in a foot locker. The following day, Sunday, November 5, deceased spent in the Love home watching television. The next day the deceased, wearing cotton trousers and a shirt, went with Love to Love's place of employment and remained with him from nine a. m. until three p. m., as Love performed his duties as a filling station employee. The deceased then went with Love to the Bluebird, a local tavern, where they stayed together until 4 o'clock, at which time Love left and defendant entered the tavern and started visiting with deceased. About 4:30 p. m. the deceased, accompanied by the defendant, drove a pickup truck into Love's filling station. The truck bore the name of 'Fred Luttrell, St. Peter's, Missouri', but defendant was riding as a passenger and the deceased was driving. After the gas tank was filled, defendant and deceased left in a westerly direction.

They arrived together at the defendant's trailer home about 6:15 p. m. The deceased and defendant entered and were seated on a divan, with defendant seated next to deceased and deceased next to Judy, while they watched 'TV'. After ten or fifteen minutes the defendant and the deceased both left the trailer and deceased thereafter returned with a carton of beer, which he gave to defendant's wife, and again seated himself on the divan to watch 'TV'. A few minutes later defendant re-entered the room carrying a shotgun and he shot the deceased twice with a 16-gauge Remington shotgun from a distance of ten to fifteen feet, killing him. The gun was later found on top of a pickup truck, where it had been placed by the defendant as he went to a neighbor's home to report the killing. Subsequently a police officer found two spent shells in the trailer near the place where the defendant stood at the time the gun was fired. They had been fired from the shotgun found on top of the pickup truck.

When the officers arrived they found the deceased in a sitting position on the divan with his hands in his lap; he appeared to be dead. There was no pulse, the eyes were open but did not dilate when a flashlight was shone in them. No breathing could be detected and there was a large hole in deceased's chin and up through his mouth; the left side of his face was torn away and also his left ear, and he had bled profusely.

After defendant telephoned for the police, he asked his neighbor to come over and see the man he had killed. Defendant told her that he had shot the man; that the man 'had made a pass at his stepdaughter, Judy,' and had also been 'messing around with his wife.' Defendant also told a deputy sheriff that he had shot the man.

Although the defendant testified at the trial that the deceased had a '.38 shortbarrel, loaded revolver' in his possession, Judy, who was seated next to the deceased on the divan, had not seen any such gun at any time. Other evidence tended to show that the deceased owned no such pistol, had no such gun in his possession and that he had had none except the one issued to him by the police department which was found, after deceased's death, in the locker where he had placed it on November 4. Defendant's wife, who testified in defendant's behalf, had not seen a gun in deceased's possession at any time during the evening of November 6. At the trial defendant admitted that he had killed the deceased by shooting him. Defendant further testified that, prior to the shooting, deceased had a .38 short-barrel, loaded revolver, and had pointed it at him, and had threatened him at various times that evening. Defendant did not know what happened to the revolver after he shot the deceased. One of the police officers made a search for such a pistol in and about the trailer where the killing occurred, but no such pistol could be found. The defendant's testimony will be further reviewed in connection with an assignment of error in the motion for a new trial.

No question has been raised with reference to the information filed in this case, but since it is our duty under Supreme Court Rules 28.02 and 28.08 to determine its sufficiency, we shall set out a portion of it, as follows: '* * * that Fred Luttrell on the 6th day of November, 1961, in the County of St. Charles, State of Missouri, did then and there willfully and unlawfully deliberately, premeditatedly, feloniously and of his malice aforethought, make an assault upon one Wallace G. Orsech with a 16 gauge shotgun, shooting and inflicting mortal wounds from which the said Wallace B. Orsech died and did thereby kill and murder the said Wallace B. Orsech * * *.'

It will be noted that the date of death is not expressly stated, except as may be inferred or as the allegations may tend to indicate that all events transpired on the date stated and had transpired prior to the filing of the information on January 6, 1962.

At one time it was deemed essential that the information expressly allege not only the date the defendant inflicted the mortal wound, but also the date and place of death. See State v. Borders, Mo.Sup., 199 S.W. 180, 182. The Borders' case held that there was no necessity to plead or prove the place of death, but indicated that it was still necessary for the information to state the time of death. We do not find said requirement to have been changed by any specific decision. There are situations, however, where such an allegation is wholly unnecessary, as where other allegations or circumstances expressly show that the deceased died within a year and a day after the offense sought to be charged, as in the present case. In this case the information charges the assault and shooting occurred on November 6, 1961, and the information was filed January 6, 1962, and it alleges that defendant 'did thereby kill and murder the said Wallace B. Orsech.' The record further shows the trial and conviction of defendant on the 21st of February 1962, all within one year after the alleged date of the shooting. The allegations of the information were therefore sufficient under Supreme Court Rule 24.01 and defendant could not have been prejudiced by any failure to more specifically allege the date of death. State v. Brookshire, Mo.Sup., No. 49152, 368 S.W.2d 373. And see Supreme Court Rule 24.11, which provides: 'No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: * * * for stating the time imperfectly, * * * or, * * * for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment or information * * *.'

While it would have been better for the information to have alleged the date of death, it was nevertheless sufficient under the facts of this case and under Supreme Court Rule 24.11.

The first assignment of error in the motion is to the effect that the court erred in permitting the prosecuting attorney to introduce into evidence and to read to the jury a transcript of the testimony of Elizabeth Orsech, deceased's widow, as given by her at defendant's preliminary hearing held on November 30, 1961, before the Honorable Webster Karrenbrock, Judge of the Magistrate Court of St. Charles County. The transcript of such testimony was permitted to be read to the jury in lieu of the testimony of the witness in person. The transcript was not signed by the witness as required by Sec. 544.370 RSMo 1959, V.A.M.S. and Supreme Court Rule 23.12 nor was the transcript of the testimony of this witness certified by the magistrate to the circuit court upon the completion...