State v. Mayberry

• Decision Date: 13 February 1950
• Docket Number: No. 1,No. 41579,41579,1
• Citation: 226 S.W.2d 725,360 Mo. 35
• Parties: STATE v. MAYBERRY
• Court: Missouri Supreme Court

Page 725

226 S.W.2d 725

360 Mo. 35

STATE v. MAYBERRY.

No. 41579.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1950.

Robert A. McIlrath, Flat River, for appellant.

J. E. Taylor, Attorney General, Robert L. Hyder, Assistant Attorney General, for respondent.

VAN OSDOL, Commissioner.

Defendant, Delmar Mayberry, killed Charles Talley with a knife. Defendant was charged with murder in the first degree. A jury found him guilty of murder in the second degree, and assessed his punishment at 55 years imprisonment in the State penitentiary. He has perfected an appeal from the ensuing sentence and judgment.

Defendant-appellant assigns errors of the trial court (1) in refusing to give Instruction A tendered by defendant upon his theory of self-defense, and in giving in lieu thereof the trial court's own Instruction C; (2) in admitting into evidence impeaching statements of defendant's wife; and (3) in permitting prejudicial argument by State's counsel to the jury.

While the evidence introduced by the State was substantial and sufficient to sustain the conviction of defendant, he had interposed the defense of self-defense on the theory he had in good faith withdrawn from the encounter but was thereafter closely pressed and had killed to avoid his own destruction. In order to closely examine his assignment (1) of error in the refusal and the giving of instructions, we will review the evidence tending to support his theory of defense.

The homicide occurred about ten o'clock the evening of May 23, 1948, in Frankclay, St. Francois County, at the home of Guy Gillam and wife Pauline. Defendant's wife, Gretchen, was formerly the wife of deceased, Charles Talley. Gretchen and Talley were the parents of Pauline Gillam; and of Virginia Mayberry, the wife of defendant's brother, Clarence Eugene Mayberry. Gretchen and Talley were divorced in 1939. Defendant and Gretchen were married in 1943, and for about a year preceding the tragedy had lived in St. Louis. However, on May 22d, Gretchen had come to Frankclay and, the evening of May 23d, was present in the home of her daughter Pauline Gillam. The deceased, Charles Talley, was then living at the home of the daughter Pauline.

As stated, defendant and his wife were living in St. Louis and the day preceding the homicide Gretchen had come to Frankclay. She came to attend her daughters, both of whom were pregnant and were soon to be confined. Upon visiting Frankclay, Gretchen usually stayed at the home of her daughter, Virginia Mayberry, but May 23d Pauline Gillam was ill; and Gretchen was at the Gillam home, as stated. About 9:30 o'clock that evening defendant came from St. Louis to Frankclay, knocked at the door of the Mayberry home and inquired of the whereabouts of his wife. Upon being told she was at Pauline's, defendant said, 'I think I will go up there a few minutes and be right back.'

The home of Guy and Pauline Gillam fronts southwardly upon a street in Frankclay. The house is about 20' X 22', and has four rooms. A door in the south side of the house opens into the living room, the southeast (front) room. This room is also used, when needed, as a sleeping room. Defendant's wife, deceased's former wife, was occupying this room the evening of May 23d. A door opens off the north (back) porch into the kitchen, the northeast room. The room west of the kitchen is a bedroom, the northwest room. May 23d, a bed in the northwest bedroom was occupied by the deceased, Charles Talley, and by the small son of Guy and Pauline Gillam. The southwest (front) room is a bedroom and, the night of May 23d, was occupied by Guy Gillam and wife Pauline. Archways and doors permit one to 'circle' around from room to room through the four rooms of the house.

There was evidence tending to show defendant, having learned his wife was at the home of her daughter Pauline, went to the Gillam home; opened the front door; went in; struck a match; located the light; turned on the light; talked to his wife; and, glancing northwestwardly, observed Charles Talley lying in bed in a northwest bedroom. Charles Talley, 43 or 44 years old, weighed close to 200 pounds. We infer defendant is a rather small man. He is about 37 years of age.

Defendant walked on into the kitchen. He turned on the kitchen light. 'I was going to tell him (deceased) to stay away from my wife.' Deceased told defendant not to come in, to get out of there or he would kill defendant. Deceased jumped out of bed and grabbed something. At the time, defendant had his knife in his hand. The small blade was open. He rushed in and shoved deceased back onto the bed. Defendant's wife grabbed defendant by the arm and pulled him off deceased. Deceased threw something at defendant. 'It hit me and cut my arm.' Deceased grappled with defendant and they fell back on the bed, fighting. Deceased threw a comforter around defendant's head. Defendant's knife 'hung up' in the comforter, 'closed up' and cut his hand.

Defendant put his knife back into his pocket. He tried to get the comforter off his head. He ran back through the room and started out the front door, but 'Mr. Gillam was running out,' and defendant could not get out. Defendant ran the 'complete circle of the house.' He ran to the kitchen door, found it locked, 'couldn't get out there, and turned around and looked. Here he (deceased) was coming after me in the kitchen. I was running around the table, and he hit me, and I almost fell over the table, and he come into me and clinched me again * * * and went to choking me.' Defendant again took his knife out of his pocket, 'that time I had the big blade open * * * I knew he was going to hurt me * * * He hit me such a hard lick * * * and then is when I started cutting.'

Deceased, having been wounded ten times with four wounds penetrating the body cavity and one through to the heart, fell dead with his body on the kitchen floor, his lower legs extending into the living room. Defendant walked out of the house.

While there was sufficient evidence introduced by the State to sustain the view defendant was the aggressor and with felonious intent, we have set forth defendant's testimony tending to show defendant in good faith sought to withdraw from the encounter and effected the mortal wound or wounds only when he was thereafter sorely pressed.

There is a difference between 'withdrawal in good faith' from combat, and a mere 'retreat' which may be and often is a continuance of hostilities. A 'withdrawal' is an abandonment of the struggle by one of the parties and such an abandonment must be perceived by the other. State v. Heath, 237 Mo. 255, 141 S.W. 26. Now, in the instant case, defendant testified that, after the initial encounter in the northwest room, he put his knife back into his pocket and, being pursued by deceased, ran around through the four rooms, vainly attempting to get out of the house, first by way of the front door, then through the kitchen door. He took out his knife, opened the big blade and cut deceased when, finally unable to escape through the kitchen door, he had been grappled with, hit and choked by deceased. Considering his testimony as true, defendant in good faith sought to withdraw, and abandon combat; and, it could be reasonably inferred, in the circumstances stated by defendant, his movements in his attempted withdrawal in the lighted rooms were evident to deceased. Compare State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42.

The trial court gave Instruction No. 6, instructing with respect to self-defense generally; however, defendant, seeking the submission of his theory of self-defense, tendered Instruction A. The Instruction A is as follows, 'The Court instructs the jury that even though you find and believe from the evidence that Delmar Mayberry attacked the deceased, Charley Talley, in the bed room and if you further find and believe that before he had inflicted any fatal wound he ceased fighting and made an effort to escape through the back door, if you so find, and if you further find and believe from the evidence that the deceased, Charley Talley, attacked the defendant while he was making an effort to escape and if you further find the defendant had reasonable cause to believe and did believe that the deceased, Charley Talley, was about, then and there, to take ...