State v. Markel
| Decision Date | 01 December 1934 |
| Citation | 77 S.W.2d 112,336 Mo. 129 |
| Parties | The State v. F. S. Markel, Appellant |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court; Hon. Frank Kelly, Judge.
Reversed and remanded.
Finch & Finch and Ward & Reeves for appellant.
(1) The defendant's general reputation for being a law abiding citizen was not put in issue and specific acts cannot be used for the purpose of attacking his character. State v Bugg, 316 Mo. 584; State v. McDonough, 232 Mo 235. Specific acts cannot be shown for the purpose of attacking the reputation of a defendant. State v Nanna, 18 S.W.2d 71. Deceased was not in this crowd and this conversation was not a threat against deceased. The threat was made at a different time and about a different person from the time of the homicide, and under circumstances which the witness did not know of. Statements of vicious conduct, bad temper, threats to others, or even other difficulties could not be used against Dr. Markel in the case at bar. State v. Harris, 73 Mo. 287; State v. Monroe, 283 Mo. 352; State v. May, 142 Mo. 135; State v. Moberly, 121 Mo. 609; State v. Parker, 96 Mo. 389; State v. Phillips, 233 Mo. 305; State v. Nanna, 18 S.W.2d 67. (2) Court erred in refusing instructions asked by defendant. Instructions A and B are request instructions on the defense of an "accident" and placing the burden of showing that the shooting was "intentional" and "not accidental," and therefore, was the converse of the State's main instruction on "willful shooting" and it was error to refuse that instruction. Notwithstanding, the main instruction details the fact required to be proven by the State to authorize conviction, yet under the authorities, defendant is entitled to a converse instruction if requested and it is error to refuse it. State v. Gurnee, 309 Mo. 14; State v. Rutherford, 152 Mo. 124; State v. Johnson, 234 S.W. 794; State v. Majors, 237 S.W. 486; State v. Hayes, 247 S.W. 166; State v. Stewart, 29 S.W.2d 123; State v. Hill, 44 S.W.2d 103; State v. Ledbetter, 58 S.W.2d 453.
Roy McKittrick, Attorney General, and William W. Barnes, Assistant Attorney General, for respondent.
(1) The following numbered assignments are too general and indefinite for review here. State v. Austin, 29 S.W.2d 7; State v. Aguelera, 326 Mo. 1213; State v. Ryan, 50 S.W.2d 1000; State v. Early, 49 S.W.2d 1060; State v. Fisher, 46 S.W.2d 556. (2) The admission of the testimony of witness Tom Lewis as an expert was proper. State v. Long, 324 Mo. 212; State v. Daly, 210 Mo. 677. (3) The court properly admitted in evidence the testimony of witnesses Brennecke and Eddleman. State v. Rose, 271 Mo. 26; State v. Scanlan, 308 Mo. 690. (4) The evidence of the witnesses Thomas and Loesch was competent evidence of such character showing intent. State v. Fish, 50 S.W.2d 1020; State v. Harris, 150 Mo. 61; State v. Craft, 299 Mo. 344; State v. Stallings, 326 Mo. 1046; State v. Grant, 79 Mo. 137; State v. Glahn, 97 Mo. 689; State v. Whitsett, 232 Mo. 527; State v. Schmulbach, 243 Mo. 539. (5) The refusing instructions fully covered by instructions given was proper. State v. Stuart, 289 S.W. 824; State v. Davis, 58 S.W.2d 309; State v. Hill, 329 Mo. 230; State v. Barker, 18 S.W.2d 21; State v. Baurerle, 145 Mo. 16; State v. Miller, 292 Mo. 135; State v. Edwards, 71 Mo. 322; State v. Emery, 78 Mo. 80. (6) Instruction 2 given by the court properly defined culpable negligence. State v. Millin, 300 S.W. 697; State v. Baublits, 324 Mo. 1211.
Westhues, C. Cooley and Fitzsimmons, CC., concur.
This is an appeal from a conviction of murder in the second degree. Punishment assessed was ten years' imprisonment in the penitentiary. The shooting, out of which the charge against appellant arose, occurred in Cape Girardeau County, Missouri. The case was tried on change of venue in Scott County. The trial court submitted the case to the jury on the question of murder in the first and second degrees and manslaughter.
The evidence disclased the following: Appellant was a medical doctor living in the town of Allenville, Missouri. He had practiced his profession in this vicinity for many years. He and his wife also conducted a store which was located near the village postoffice. It seems to have been the custom of the citizens to celebrate certain public holidays by shooting firecrackers. This sport was mainly engaged in by younger people, however, some of mature age also took part in the shooting. Christmas Eve, December 24, 1931, about six P. M., or a short time thereafter, the deceased and a number of others were shooting firecrackers near the postoffice in a street northwest of appellant's store. While this shooting was going on appellant went to a vacant lot to the rear of his store with a pistol and shot a number of times. The evidence disclosed that while these shots were being fired by appellant one of the boys, named below, was shot through the neck and the deceased, Walter Givens, was shot in the head, from which wound he died within a few minutes. The vacant lot in the rear of appellant's store was enclosed by a board fence about six or seven feet high in which a number of bullet holes were found. Witnesses testified that they saw a man with a white shirt standing in the vacant lot to the rear of appellant's store. Flashes from the gun indicated that the shots were being fired in the direction of where the boys were shooting firecrackers. It was too dark to identify anyone, but light enough to see the outline of people moving about in the street.
The theory of the State was, that appellant took offense at the boys shooting firecrackers and deliberately fired in the direction of where the boys were located. Appellant's defense was, that he was merely joining in the celebration and had no intention whatever of hitting anyone and that he did not know anyone was in danger of being struck by the shots fired. The vital issue in the case was the intention of appellant in firing the shots. With this in mind we will discuss the assignments of error in the motion for new trial, filed by appellant, which the trial court overruled. Appellant complains of the admission in evidence of statements attributed to him prior to the shooting. The first of such statements was offered by the evidence of a man named Lewis Thomas, who testified that appellant made a statement to him on Halloween night, 1931, after appellant had been to the rear of the store, to the effect: "There are some boys out there with a red light and they came from toward your corner, or from toward your place, and if I had had my gun I would have certainly shot them." The testimony of the second statement, offered by the State, of which appellant complains, was also given by witness Lewis Thomas. Thomas testified that shortly after Halloween, 1931, he had a conversation with appellant wherein the shooting of firecrackers was mentioned and appellant said: "I have talked to the boys and if I cannot stop them one way I will another." And also: "I have talked to the boys and it does no good and I am going to do something else." The third and last alleged statement, proven by the State, was offered by witness Guy Loesch. This witness testified that about Thanksgiving, 1931, he overheard a conversation between a boy named Shirley Young and appellant, wherein Shirley Young made the statement: "You wouldn't shoot us would you?" and appellant replied: "I would." The State did not prove what the subject of this conversation was between Young and appellant. Appellant denied having made any of the threats attributed to him.
Appellant in his brief says:
"The defendant's general reputation for being a law abiding citizen was not put in issue and specific acts can't be used for the purpose of attacking his character."
A number of cases were cited to support this statement. The evidence of the threats were not offered for the purpose of attacking the character of appellant but were offered in support of the State's theory that appellant intentionally shot at the boys on Christmas Eve when Givens met his death. For this purpose the evidence, with the exception of the conversation between Shirley Young and appellant, was competent. It must be borne in mind, as above stated, that the intention with which the shots were fired was the main disputed issue in the case. Appellant contends the evidence was incompetent to show threats because the threats, if made, were not made against the deceased. That, however, was not necessary. No showing was made that appellant recognized any one of the boys he is alleged to have seen on Halloween night or on the night of the shooting. The threats, if made, were not against any particular person but against persons in general who saw fit to engage in the sport of shooting firecrackers or in any other sports of like nature depending on the celebration, such as the semi-mischievous pranks which usually are perpetrated by boys on Halloween night. So that threats, if made, were against a class of persons such as gathered upon the street to shoot firecrackers on the night of the shooting. The prosecution was, therefore, entitled to introduce evidence of the alleged threats for the consideration of the jury in determining appellant's intention at the time of the shooting. [30 C. J., p. 191, sec. 418; State v. Grant, 79 Mo. 113, l. c. 137, 49 Am. Rep. 218; State v. Stallings, 33 S.W.2d 914, l. c. 917 (9), 326 Mo. 1037, l. c. 1046; Parker v. State, 136 Ind. 284, 35 N.E. 1105; Smith v. State (Okla.), 293 P. 569.]
Since the State failed to show the subject matter of the alleged conversation between Shirley Young and appellant the trial court should not have admitted the isolated portion of such conversation as above quoted. The subject of the conversation...
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