State v. Maggitt
| Decision Date | 16 December 1974 |
| Docket Number | No. 58744,58744 |
| Citation | 517 S.W.2d 105 |
| Parties | STATE of Missouri, Respondent, v. Guss MAGGITT, Appellant. |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
John H. Marshall, Public Defender 22nd Judicial Circuit, St. Louis, for appellant.
Guss Maggitt (defendant), charged with first degree murder, was found guilty by a jury of second degree murder and, the jury being unable to agree on his punishment, the court assessed punishment and sentenced him to imprisonment for 40 years. He appealed from that judgment to the court of appeals, St. Louis district. That court reversed and remanded in an opinion which tacitly recognized that its decision failed to follow decisions binding on it. 1 On application of the state we ordered the case transferred to this court, because of the obvious conflict with prior controlling decisions, 2 and consider and decide the case 'the same as though on original appeal.' Mo.Const. Art. V, § 10, V.A.M.S.
Defendant does not question the sufficiency of the evidence to sustain the conviction; hence, a brief summary thereof will suffice. On the evening of July 11, 1972, between 9 and 10 o'clock, Pearlene Carr and her boyfriend, John Mems, visited his mother, Ida Mae Anderson, in her home at 5091 Page boulevard in St. Louis. Living with Mrs. Anderson at this address were her boyfriend, Guss Maggitt, the defendant, and her mother, Missie Warlick. During the visit, Pearlene, John Mems, his mother and Guss Maggitt had several drinks of Scotch whisky while sitting around a table in the kitchen. In the course of the evening an argument developed between John and Guss regarding Guss's relationship with John's mother. When the argument became heated, Mrs. Anderson asked her son and Pearlene to leave. As they were leaving the house, Guss ran upstairs and got his .22 caliber revolver and by the time he had returned to the bottom of the stairs John and Pearlene were pulling away from the curb in their automobile. Guss called out to John to 'wait' and, as he walked out across the porch and down the steps he said, 'John, I want to talk to you.' John stopped the car, got out, and walked toward Guss who, by then, was standing on the bottom step next to the porch. When John reached the top of steps in the sidewalk, approximately 15--20 feet from the porch, Guss had his pistol in his hand and told John to stop. Instead, John kept walking toward Guss. At this point, Guss fired three shots into John Mems, killing him.
Defendant's defense was self-defense. He testified that he knew John Mems had a gun in his right side pocket earlier that evening while they were sitting around the kitchen table drinking; that later, as John was advancing toward him up the sidewalk, he saw him reach in that pocket and pull the gun part way out; that he saw the handle of the gun as it emerged from John's pocket; that he fired immediately to protect himself, believing and fearing that John would shoot and kill him if he did not shoot first; that he was afraid of John Mems, because Mems had assaulted and threatened to kill him on at least three occasions during the last three years, the first occasion being shortly after Mems had returned from Pennsylvania.
The main point relied on by defendant for reversal is that the court erred in denying his offer to rpove, in connection with his self-defense plea, that Mems had been convicted previously of an armed robbery in Pennsylvania and that he (defendant) had knowledge of that incident. He argues that this conviction and his knowledge of it is admissible to show that Mems was a violent person and that he, therefore, had reasonable grounds to believe himself in imminent danger from Mems when he shot him.
In State v. Duncan, 467 S.W.2d 866, 867 (1, 2) (Mo.1971) this court said:
Defendant recognizes this rule but says it should be abandoned and, citing State v. Johnson, 270 N.C. 215, 154 S.E.2d 48, 52(2--4) (1967) and 40 Am.Jur.2d Homicide, § 306 p. 575, suggests that in instances such as that presented here Missouri should follow the trend of modern authority which permits the introduction of evidence of specific acts of violence of the deceased of which the defendant had knowledge prior to the homicide. Essentially the same contention was made in State v. Duncan, supra, in which the North Carolina case of State v. Johnson, supra, was relied upon by the appellant.
In Duncan, supra, we reconsidered our rule and reasons for it and concluded that it '* * * is sound, practical, and logical and should continue to be followed.' 467 S.W.2d at 869. We adhere to that holding. The trial court did not err in denying defendant's offer of proof that the deceased had been convicted of armed robbery in Pennsylvania.
Defendant's second point is that the court erred in overruling his objections to the circuit attoney 'exhibiting and demonstrating with pistols belonging to an investigator and the defendant during cross examination of * * * defendant since the circuit attorney had not sufficiently proven similarity of circumstances to warrant the demonstration, and such demonstration was irrelevant and immaterial, inflammatory and prejudicial to the defendant.' The only assignment of error in defendant's motion for new trial relative to the exhibition of or demonstration with firearms during the cross-examination of defendant is a charge of error in overruling his objection to '* * * demonstrations with the alleged murder weapon.' The argument portion of defendant's brief refers us to two instances during his cross-examination when the circuit attorney used this weapon to demonstrate the manner in which defendant held, pointed and fired it.
Defendant admitted during direct examination that he shot and killed Mems, described the scene and circumstances of the shooting, and identified the pistol later employed in these demonstrations as being the weapon used to shoot Mems.
The question of whether this pistol, admittedly used by defendant to shoot the deceased could be used by the state, and, if so, the scope of its use in cross-examination to demonstrate how and in what manner defendant held, pointed and fired it was a matter largely in the discretion of the trial court, particularly in view of the defense of self-defense. We confine our inquiry to whether there has been an abuse of that discretion and find none. State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492, 496(8) (1949); State v. Allen, 246 S.W. 946, 947(7) (Mo.1922).
The court gave an instruction which told the jury that drunkenness or being under the influence of alcohol is no excuse for the commission of crime and may not be considered in arriving at a verdict. Defendant complains that there was no evidence to support the instruction; that he did not in any manner suggest drunkenness as a defense, his only defense being self-defense; hence, the giving of this instruction was error.
In addition to the evidence of drinking with deceased and others during the course of this evening which culminated in a heated argument and a killing there was also evidence that defendant drank four beers enroute home from his employment. From this evidence a jury reasonably might infer that defendant was under the influence of alcohol at the time of the shooting to such extent that his judgment and actions were substantially affected. In these circumstances, although drunkenness was not made an issue by him, it was not error to give an instruction on voluntary intoxication. State v. Zerban, 412 S.W.2d 397, 401, 402(4) (Mo.1967); State v. Garrett, 391 S.W.2d 235, 244(7) (Mo.1965); State v. Deviney, 278 S.W. 726, 729(12) (Mo.1925).
Defendant contends that the court erred in permitting the state to elicit from its witness, Ida Mae Anderson, testimony that she heard defendant say as he was going out the door with his pistol toward the street where Mems was: 'He's not going to get away with this.' Defendant objected to the question that brought this answer on the ground that it was leading and suggestive, but the answer was given before his objection, so he moved that the...
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