State v. McCloud, 46768

• Decision Date: 09 November 1959
• Docket Number: No. 46768,No. 2,46768,2
• Citation: State v. McCloud, 328 S.W.2d 586 (Mo. 1959)
• Parties: STATE of Missouri, Respondent, v. Mack McCLOUD, Appellant
• Court: Missouri Supreme Court

Page 586

328 S.W.2d 586

STATE of Missouri, Respondent, v. Mack McCLOUD, Appellant.

No. 46768.

Supreme Court of Missouri, Division No. 2.

Nov. 9, 1959.

Charles M. Shaw, Clayton, for appellant.

John M. Dalton, Atty. Gen., J. Burleigh Arnold, Asst. Atty. Gen., for respondent.

LEEDY, Presiding Judge.

Mack McCloud (hereinafter referred to as defendant) was convicted of murder in the first degree in having shot and killed his 'common-law wife,' Ertha, in St. Louis County on October 23, 1955, and his punishment fixed by the jury at imprisonment in the penitentiary for the remainder of his natural life. Judgment was entered, and sentence pronounced in accordance with the verdict, and he appeals.

He was allowed to appeal as a poor person, and the transcript on appeal was furnished at public expense, and without cost to him, but he has, nevertheless, failed to file a brief. In this situation we look to the assignments of his motion for a new trial (of which assignments there are but two) for the points to be relied on for reversal. These, respectively, complain of the action of the court in receiving in evidence state's Exhibit No. 7, and in giving to the jury Instruction No. 6.

The homicide occurred on the date mentioned, October 23, 1955, about 2:30 A.M., at deceased's home at 712 King Street in Kinloch, in which home defendant had for some months been living with deceased. The killing climaxed an afternoon and night of drinking and revelry which had apparently been in celebration of the visit by Ertha's brother, LeFrance (Pete) Warren, and his wife, who had arrived at Ertha's that day from their home in Chicago. In the course of the evening a trip was made in defendant's car to Chuck & Al's night club on the east side (in Illinois). There were present in that party: The defendant, Ertha, Ertha's brother, LeFrance (Pete) Warren, and the latter's common-law wife, Joan Crawford, and Ertha's uncle, Robert Warren and the latter's wife. On the return trip there was some criticism of defendant's state of sobriety and manner of driving. An argument ensued which culminated in the passengers severally getting out of the conveyance, and finding other means of transportation home. Robert Warren and wife seem to have gotten to their home by bus; the others went by taxi to the King Street address, where, on arrival, they found defendant. It was then about 2 A.M. Deceased went to the kitchen, got a can of beer from the ice box, and began arguing with defendant. She accused him of having put her out of the car, and told him she would not put him out of her house--'I want you to take all your things and pack your clothes and leave.' The argument continued, and finally defendant left the premises and went a few blocks to his sister's home where he obtained his pistol, which, at Ertha's insistence, he had left with his sister earlier that evening while en route to the Illinois night club. About ten minutes later he returned to Ertha's home, where, without further ado, he shot and killed her. More particularly, the state's evidence in that regard shows that the door was heard to open, and Ertha was heard to say, 'No, Mack,' or 'Don't do that, Mack,' whereupon, the witnesses say, the defendant shot Ertha in the back as she was running away from him, her arms outstretched. She fell to the floor, face up, and he then straddled her body, standing with one leg between hers, and fired a series of shots at her, hitting her at least twice as she was lying on the floor. She had no weapon. He then fled. A post-mortem revealed five wounds were on the body; three were entrance wounds and two exit wounds. A through and through penetrating wound was in the left forearm, the bullet emerging approximately one inch above the wrist, smashing two bones of the forearm. Another bullet had 'cut across the upper part of the trachea up through the deep tissues and veins of the neck and entered into the lower skull' and came out behind the left ear. Another wound was two and one-half inches above the left ear and was traced into the brain. The cause of death was attributed to multiple penetrating gunshot wounds with profound or extensive brain damage.

In appears that defendant voluntarily surrendered himself to the law enforcement officers of St. Louis County at about 8 P.M., on October 23, following the killing which had occurred in the early morning hours of that day. He had in his possession at that time, and delivered to the officers, a gun or pistol and a clip for it containing two shells. It was identified as the gun with which Ertha was killed. He made a lengthy statement at that time, which was reduced to writing and signed by him. No question arose at the trial, nor is any raised here, as to the voluntary nature of that statement. It covers some seven pages of the transcript, and sets forth in detail the defendant's activities from 7 A.M., on Saturday, October 22, until after the killing, including his version of the facts and circumstances immediately surrounding the homicide. With respect to the latter, it is sufficient to say that the statement is exculpatory in nature, being to the effect that Ertha was advancing on him with a knife in her right hand and threatening to kill him; whereupon he said to her, 'You get back. You know I ain't going to let you cut me with that knife;' that she nevertheless 'kept coming,' repeating that she would kill him, and 'then I pulled the gun out of my pocket with my right hand and I shot her. She fell to the floor and the knife fell out of her hand, and I said, 'Uh, huh, you had a knife; that's your brother's knife.' I didn't say another word. I turned around and walked right out of the door and got in my car and drove off.'

The defendant did not testify at...