State v. McNew, 48441

• Decision Date: 12 February 1962
• Docket Number: No. 1,No. 48441,48441,1
• Parties: STATE of Missouri, Respondent, v. Bill McNEW, Appellant
• Court: Missouri Supreme Court

Page 571

353 S.W.2d 571

STATE of Missouri, Respondent, v. Bill McNEW, Appellant.

No. 48441.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1962.

Bradley & Noble, by Charles M. Cable, Kennett, for appellant.

Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.

WESTHUES, Judge.

Bill McNew was, by a jury, convicted on a charge of manslaughter. His punishment was fixed at three years' imprisonment in the State Penitentiary. His motion for a new trial was overruled and from the sentence imposed, he has appealed.

The case originated in Dunklin County, Missouri, where an information was filed charging McNew with murder in the second degree. On change of venue, the cause was transferred to Stoddard County where the prosecuting attorney filed an amended information reducing the charge to manslaughter. The information alleged that on October 7, 1958, McNew assaulted one P. H. Wise with his fist, striking him a mortal blow in the stomach and liver from which Wise died the next day.

The principal points briefed pertain to the sufficiency of the evidence to prove that the death of Wise was due to the assault and not due to natural causes or accident. McNew claimed he struck Wise in self defense. We find little dispute in the evidence offered by the State and by the defendant. It shows the following to have occurred.

On the evening of October 7, 1958, at about ten o'clock, Wise, the deceased, was in a restaurant referred to in the evidence as Moore's Cafe in Senath, Missouri. While Wise, Lola Brown, Mrs. Moore, operator of the cafe, and Mrs. Brown's daughter Becky were sitting at a table, McNew came to the window of the cafe and motioned for Wise to come outside. Wise took his coat and went outside to defendant's car which was occupied by a Mrs. Nadine Smithmeir. At the car there was a conversation between Wise and McNew. McNew testified that Wise had told him that Mrs. Smithmeir had been going out with other men; that he had asked Mrs. Smithmeir about that and she had denied the accusation. McNew stated that his purpose in calling Wise (whom he referred to as 'P. H.') to the car was to settle that dispute. The following is McNew's version of what occurred, including his claim of accident and self defense:

'Q I see. Now, will you tell the Jury what was said between you and P. H. when he come up there?

'A Well, he walked up there and uh, he said, uh, uh, 'What do you say, Bill?', I said, 'Well, there's a misunderstanding between Nadine and myself and we'd like to get it straightened out.', just like that. Then, uh, so he said, 'Well, what is it?' And I told him, I says, 'Well, you tell me one thing and Nadine tells me another thing and we'd like to know which one's tellin' the truth.' And so, he said, uh, 'Well,' he says, 'you can hear anything.', and I said, 'Well, yeah, that's right, but you told me one thing.', and he says, 'Well, I don't give a damn what I told you.', just like that.

'Q All right. What did he do, if anything, as he told you he didn't give a damn what he told you?

'A Well, that's when he dropped his left hand off of the car and he jammed his right hand down in his pocket.

'Q What pocket?

'A His right pocket.

'Q Front or back?

'A Front pocket.

'Q All right. Then what'd you do?

'A Well, I was standin' there with my arms crossed like this, and well, I heard rumors, so I slapped at his right hand----

'Q Backhanded?

'A Yes, sir, just backhanded. I was standin' there like that and just slapped at it backhanded like that.

'Q And what did you do, hit his hand?

'A No, sir, I missed his hand.

'Q And where did you hit him?

'A Well, I hit him right along in here.

'Q Show me?

'A Right along in there.

'Q Right along in there?

'A Yes, sir.

'Q He had his hand in his pocket like that?

'A Yes, sir. I slapped at his hand there and I missed it and I hit him right along in there.

'Q Why'd you strike at his hand, Billy?

'A Well, I's afraid--I was goin' to strike at his wrist. I thought he was goin' to bring out a knife.

'Q Bring out a knife?

'A Yes, sir.

'Q What'd you--you struck out to protect yourself?

'A Yes, sir.'

It was the State's contention that McNew struck Wise a hard blow with his fist, not on Wise's hands or arms, but in his stomach, and that Wise made no threat or movement that justified McNew in acting in self defense. McNew claimed that he did not intend to strike Wise in the stomach but that when he, McNew, struck at Wise's arm or hand, he missed and accidentally struck Wise in the side of his body.

A number of witnesses testified for the State as to what they saw at the time of the occurrence from places nearby. As to this evidence, McNew claimed that it was dark and that a post or pole obstructed the view of these witnesses and prevented them from seeing what occurred.

Mrs. Smithmeir, defendant's companion, testified as a witness for the defense. As we see it, her evidence aided the State's theory. Note what she said on cross-examination:

'Q Now, you saw him--just indicate now with your hand how he come back and hit, now, don't hit too hard but hit me where he hit?

'A Where he hit him?

'Q Yeah, here.

'A I don't know.

'Q Well, you did see him hit him, didn't you?

'A I know he hit him.

'Q Now, what did he say to him immediately when he said--I believe your testimony is when he said that 'I am not--' that 'I didn't tell a lie.', then he hit him, didn't he?

'A Yes.

'Q What else did P. H. say anything?

'A I don't know.

'Q Well, what did P. H. do?

'A He slumped over.

'Q All right. Where were his hands now immediately before he struck him? What was he doin' there? What was P. H. doin' when he said, 'I haven't told any lie.' What was P. H. doin'?

'A He was standing right outside the door.

'Q And did he have his hand----?

'A I think so.

'Q And was his other hand where, down at his side?

'A I don't know.

'Q Did you see P. H. offer to hit Billy?

'A No, sir.

'Q Did he make any move to strike or do him any harm?

'A Not that I seen.

'Q Did you hear him utter one word or curse him or call him anything or threaten him in any way?

'A No, sir.

'Q You'd of remembered it if you'd of heard it, wouldn't you?

'A I think so.'

On direct examination, this witness testified as follows:

'Q Billy told P. H. to tell you that he lied about what?

'A The misunderstanding that we had.

'Q About the misunderstanding you had?

'A (Witness nodding her head up and down.)

'Q What did P. H. say?

'A He said, 'I didn't lie.'

'Q Then what happened?

'A That's when Bill hit him.

'Q All right. Now, did you see the way Bill hit him?

'A No, I didn't. I just know he hit him.'

All of the witnesses who testified about the occurrence, including defendant's witnesses, stated that after McNew hit Wise, he (Wise) 'grabbed his stomach' and slumped over. A number of witnesses testified they saw defendant strike Wise with his fist in the stomach and also at the side of his head.

As to the cause of death, it was in evidence that Wise, a taxi driver, made one trip after the occurrence in question. He had a room next to the Moore Cafe. Someone heard a groaning in that room early the next morning. On investigation, Wise was found to be ill and he complained of pain in his stomach. Dr. Merriman was called and Wise was removed to a hospital by ambulance. There an operation was performed and it was found that Wise had a torn liver and had been bleeding internally. The torn liver was sutured and Wise was given a number of blood transfusions. Wise died on that day.

Dr. Merriman testified that he found Wise in a state of shock and he had no pulse or blood pressure; that Wise complained of severe pain in his upper abdomen and both shoulders; that these pains in the shoulders were a sign of 'inter-abdominal' bleeding. At the hospital, Dr. Merriman assisted a Dr. Miltenberger in performing surgery. Dr. Merriman stated that they found a tear in the liver and continued his testimony as follows:

'A The liver is a soft organ which the blood isn't under as much pressure as say it would be if you'd cut your arm or something and it has a capsule or covering around it which was torn also and it leaks rather slowly. It takes, oh, four, six, eight hours, maybe, for it to bleed enough that you lose enough blood to cause a great deal of damage. There were, oh, it's a little hard to estimate, somewhere between two and three pints of blood loose in the abdominal cavity that was coming from this tear in the liver.

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'Q Doctor, could you tell what had caused this laceration in the liver?

'A Some sort of trauma.

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'Q Now Doctor, after the surgery then what happened to Mr. Wise?

'A He was transferred to the floor of the hospital there and his blood pressure fluctuated up and down. He was given more blood transfusions and so forth and finally expired.'

Defendant claims under points I, II, and III that the State failed to prove 'all of the elements of the crime alleged'; failed to prove that 'death was not due to natural causes or accident'; and failed to prove that death was 'the result of Defendant's criminal agency and not accidental.' All of these elements were supported by substantial evidence. The question of whether they were proved beyond a reasonable doubt was in these circumstances a question of fact for a jury and not a question of law.

That the defendant struck a hard blow was supported by the evidence of all witnesses who saw the assault. Even the defendant, in his evidence, testified that Wise, after he was hit, 'just kind of grunted, you know, and just kind of titled forward a bit.' Mrs. Smithmeir, defendant's witness, stated that when McNew hit Wise, 'He (Wise) grabbed his stomach and kinda slumped over.' She stated further, 'I heard Bill (McNew) ask him if he wanted him to take him to the doctor.' Dr. Merriman testified that the tear in the liver was caused by trauma. Then the doctor was asked a hypothetical question, the...