State v. Maples

• Decision Date: 30 June 1936
• Docket Number: No. 34744.,34744.
• Citation: 96 S.W.2d 26
• Parties: STATE v. MAPLES.
• Court: Missouri Supreme Court

96 S.W.2d 26

STATE v. MAPLES.

No. 34744.

Supreme Court of Missouri, Division No. 2.

June 30, 1936.

Appeal from Circuit Court, Greene County; John Schmook, Judge.

Bill Maples was convicted of second-degree murder, and he appeals.

Affirmed.

Jerry B. Fenton and Collins & Pierce, all of Springfield, for appellant.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.

BOHLING, Commissioner.

Bill Maples appeals from a judgment imposing a sentence of thirty-five years' imprisonment for the murder of Ritchie Hampton in the second degree.

Ritchie Hampton and Bill Maples were brothers-in-law, Hampton having married Maples sister Martha. They occupied a three-room house in Springfield, Greene county, Mo. The house faced south, having two rooms and a porch across the front, another room or kitchen, back of the east front room, and a porch back of the west front room. Each of the front rooms had a door leading to the porch. The doors were approximately three feet apart. The west room was occupied by the Hampton family and the east by the Maples family. A connecting door between the rooms was approximately two feet north of the south wall. About 5:30 p. m. of July 18, 1934, police officers of the city of Springfield went to the house in response to a call. They found Mrs. Hampton on the front porch. Bill Maples was back of the house. He told the officers that Hampton had gone; that he (Maples) had a gun in his pocket, and if Hampton came back he was going to kill him. Maples appeared angry. Later, approximately 9:30 p. m., on the same day, the officers went to the premises in response to another call. Maples met the officers at the gate and told them he had killed Ritchie Hampton with a gun. Maples was arrested and a 5-shot 32-caliber revolver taken from one of his pockets. Upon entering the house, Hampton's dead body was found in the west (Hampton's) room of the house with a bullet wound in the right breast, between the third and fourth ribs, ranging to the left and back and downward, going through the aorta, and producing, according to the coroner, almost instant death, and, from the nature of the wound, deceased was standing somewhat sideways to defendant when the shot was fired. The head of Hampton's body was to the northwest, his feet to the southeast, about (estimated) three to six feet from the front or south door and near the door connecting the rooms. Maples made a statement in the presence of the officers that Hampton was in Hampton's room and Maples was on the porch, about five feet from the Hampton screen door, when Maples shot him, and that he shot twice through the screen door, which had two holes in it.

Appellant's plea was self-defense. The evidence in his behalf, the more material witnesses being appellant, his wife, his wife's brother Jack Morgan, and his sister (wife of deceased), was, briefly stated, to the following effect: Upon appellant's return home from work about 5 p. m. on July 18, 1934, appellant was informed by one of his two young daughters that deceased had bumped their heads together; that, passing through the house and going to the garage on the premises where deceased and one Wooster Morgan were, deceased, although there had never been any serious trouble or quarrel between them, handed to appellant appellant's gun (deceased having procured appellant's gun and razor) and, without any provocation, threatened to kill appellant and attacked appellant with a razor in each hand (an eyewitness to this altercation testified he did not see anything in deceased's hands); that deceased, putting one of the razors up, grabbed appellant and pushed and shoved him toward the house; that appellant broke away and snapped the gun at deceased two or three times but it was unloaded; that appellant, retreating, loaded the gun with shells taken from his pocket; and that deceased abandoned the attack and left, and about that time the officers arrived on their first trip to the premises. According to appellant, about 9 p. m. he went to the back door in response to a call from deceased and, upon inquiry, informed deceased the gun was in the dresser; and that deceased again threatened to kill him. Jack Morgan testified deceased, while at the back door, said he would fix it; he would call the law. Deceased did not try to enter the house, but went to a neighbor's, who had a telephone. Appellant proceeded to the front porch, securing his gun on the way. Deceased soon returned from the neighbor's. Appellant testified he and his wife went into their room, hooking the screen; that deceased came to the screen door, threatened to cut appellant's throat, slashed at the screen with a razor, jerked on the door, found it was hooked, and went into his (deceased's) room; that deceased started pushing on the connecting door, and appellant backed out on the front porch, heard the screen door of deceased's room "kind of open" (about an inch), and shot through it; that deceased disappeared from the screen and appellant stepped off the porch; that appellant, hearing his wife in the house screaming, ran back on the porch; that deceased shoved the screen door of deceased's room in appellant's face, had a razor in his hand, and threatened to kill deceased; and that appellant grabbed the screen door and shot. Appellant's wife testified she ran out of the house at the time her husband was backing out of their screen door and came back in the house after the shooting. Appellant introduced witnesses who testified a razor was on the floor underneath deceased when he was lifted to a stretcher. However, appellant's own witnesses testified nothing had been moved in the room prior to the arrival of the officers. The officers testified they made a thorough examination of the floor; that there was no razor on the floor; that the razor offered in evidence had been found put away in a small ceder chest on the dresser in deceased's room.

The deceased was in his own home when the fatal wound was inflicted upon him and unarmed. The conviction, and punishment imposed, is amply supported by the evidence. State v. Krause, 153 Mo. 474, 55 S.W. 70; State v. McCollum, 119 Mo. 469, 475, 24 S.W. 1021, 1023. The testimony of material witnesses for appellant was contradicted as to material details by witnesses for the state, and, in some instances, by testimony adduced from other witnesses for appellant. Their direct evidence was weakened by the cross-examination, and they were impeached by statements previously made at variance to their testimony on the stand. We need not further burden the opinion with these details.

Assignments of error attacking "each and all of the instructions" given by the court, because given over the objections and exceptions of appellant [State v. Rosegrant (Mo.Sup.) 93 S.W.(2d) 961 (not yet reported [in State Report]), I, c; VI; IX]; because said instructions do not properly and correctly declare the law of the case [State v. Gillman, 329 Mo. 306, 314, 44 S.W.(2d) 146, 148(9); State v. Copeland, 335 Mo. 140, 148(1), 71 S.W.(2d) 746, 750(3)]; and because the instruction on murder in the second degree is not the law of the case [State v. Tharp, 334 Mo. 46, 52(3), 64 S.W.(2d) 249, 253(4); State v. Campbell (Mo.Sup.) 84 S.W.(2d) 618, 620(3); State v. Sagerser (Mo.Sup.) 84 S.W.(2d) 918, 919(3)], are too general to preserve anything for appellate review [see, also, section 3735, R.S.1929, Mo.St. Ann. § 3735, p. 3275; State v. Moore (Mo. Sup.) 36 S.W.(2d) 928, 929(2)]. Examining the instruction on murder in the second degree, we find it in conformity with the approved instruction in State v. Aurentz, 315 Mo. 242, 247, 250(I), 286 S.W. 69, 70, 72. See, also, State v. Allister, 317 Mo. 348, 350(I), 295 S.W. 754, 756(1); State v. Glass, 318 Mo. 611, 616(IV), 300 S.W. 691, 693(7). Appellant's brief attacks another instruction. We disregard complaints first appearing in the briefs. State v. McGee, 336 Mo. 1082, 1103(15), 83 S.W.(2d) 98, 111(50); State v. Barbata, 336 Mo. 362, 375(4), 80 S.W.(2d) 865, 873(9).

Appellant offered Mrs. Martha Hampton, wife of deceased and sister of appellant, as a witness. Error is assigned in the admission of her testimony on cross-examination to the effect her husband, in the absence of appellant, told her appellant snapped his pistol several times at him while at the garage. The questions eliciting the testimony were leading, and called for an objection if appellant desired to forestall an answer. State v. Van Valkenburgh (Mo.Sup.) 285 S.W. 978, 979(4); State v. Walker (Mo.Sup.) 248 S.W. 947, 948(2). We find no objection interposed (and, of course, no exception saved) to the admission of the specified testimony; and its admission is not subject to review. State v. Lindsey (Mo.Sup.) 80 S.W.(2d) 123, 127(12); State v. Buckner (Mo.Sup.) 80 S.W.(2d) 167, 170(12); State v. Barbata, 336 Mo. 362, 379(9), 80 S.W.(2d) 865, 874(18). It is also asserted this testimony of this witness was discredited upon rebuttal by the sister an...