State v. Miller

• Decision Date: 27 September 1940
• Docket Number: 37287
• Citation: 143 S.W.2d 241,346 Mo. 846
• Parties: The State v. Ralph Ora Miller, Appellant
• Court: Missouri Supreme Court

143 S.W.2d 241

346 Mo. 846

The State v. Ralph Ora Miller, Appellant

No. 37287

Supreme Court of Missouri

September 27, 1940

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Reversed and remanded.

Roy McKittrick, Attorney General, and W. J. Burke Assistant Attorney General, for respondent.

(1) The indictment sets out sufficient facts to constitute the offense of murder. Sec. 3982, R. S. 1929; State v Conley, 255 Mo. 195, 164 S.W. 196; State v. Kenyon, 126 S.W.2d 251. (2) Appellant's assignments of error 2, 3, and 4 are insufficient to preserve anything for review. State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Copeland, 71 S.W.2d 750, 335 Mo. 140; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066. (3) The court did not err as set out in appellant's assignment of error number 5, for the reason that the record does not support the assignment. State v. Short, 87 S.W.2d 1031, 337 Mo. 1061. (4) The court did not err in permitting Kate Schimsa, Frank Nawrocki or James Shea to testify in rebuttal as to not seeing or finding a monkey wrench near the deceased shortly after the homicide. State v. Dollarhide, 63 S.W.2d 998, 333 Mo. 1087; State v. Wright, 95 S.W.2d 1159, 339 Mo. 41; State v. Martin, 56 S.W.2d 137; State v. Higginbotham, 72 S.W.2d 65, 335 Mo. 102. (5) There was sufficient evidence to take the case to the jury and to support a verdict of murder in the second degree. State v. Snow, 238 S.W. 1069, 293 Mo. 149; State v. Majors, 44 S.W.2d 167, 329 Mo. 148. (6) The verdict of the jury was responsive to the allegations of the indictment and was sufficient to support a judgment of murder in the second degree. State v. Reagan, 108 S.W.2d 39. (7) The Instruction 4 on self-defense correctly instructed the jury as to the defendant's right of self-defense and was proper. State v. O'Leary, 44 S.W.2d 50; State v. Traylor, 98 S.W.2d 628, 339 Mo. 943; State v. Huett, 104 S.W.2d 252; State v. Bushong, 246 S.W. 919; State v. Gibbs, 186 S.W. 986.

OPINION

Tipton, J.

In the Circuit Court of the City of St. Louis, the appellant was convicted of murder in the second degree for the killing of Joe Ducas, and his punishment was assessed at imprisonment in the State penitentiary for a term of fifteen years.

The facts as shown by the evidence are as follows: The appellant was married to Mary Nelson; in November, 1937, he was out of work and left St. Louis to go to Miami, Florida, to find work; he told his wife to sell the household furniture and come to Miami; after being in Miami four days he wired his wife not to sell the furniture as he was returning home; when he returned to St. Louis he found the apartment vacant and that the furniture had been sold; his wife who was then living with a woman by the name of Mrs. Hazel Kearns, refused to have anything to do with the appellant; and his wife obtained a divorce from him in March, 1938. There was evidence that appellant's wife was living with the deceased both before and after the divorce.

On May 4, 1938, about 3 o'clock P. M., the appellant entered a tavern located across the street from the Cupple's Manufacturing Co., where the deceased was employed, and drank a glass of beer. He then went across the street and stood about twenty feet from an alley where the deceased's car was parked. Shortly thereafter, the deceased left the building where he was employed and started to enter his automobile, and about that time the appellant walked to the door of the car and, according to State's evidence, shot the deceased twice. No witness for the State or appellant, except appellant, testified to any conversation between the deceased and the appellant.

The appellant's testimony in regard to the killing is as follows: He found out that his former wife was living with deceased; he went to the house several times in attempts to see her so that they could go back to living together; on the evening of May 3, 1938, he met the deceased and had a conversation with him in regard to payment for the furniture; on the following day he went to the Cupple's Manufacturing Co., and waited until the deceased came out; when the deceased was about ten or fifteen feet from the automobile he started to walk over to the automobile and said, "Hello, Joe, I came down here to get that money;" and at that time the deceased was right at the automobile.

He further testified: "Ducas looked around at me and said 'What in the Hell are you doing here?' and I said 'You invited me down to get that money to pay for my furniture,' which he had agreed to do, and he said 'Well, I'll furniture you,' and he reached into his automobile and I didn't know what he was doing, and he came out with a wrench and I backed up, and he had that wrench in his hand and he said, 'I'll fix you, you old bastard, you are too old for that girl anyway,' and I pulled out my pistol and I shot and he staggered over to the alley and fell down, and I proceeded to the police station and gave myself up, but within three blocks of the police station I was captured there, but that was my intention to go to the police station and give myself up." Q. "When you shot him what did you shoot him for?" A. "He had this wrench in his hand and he was raising it to hit me with it." Q. "Was he outside of the car?" A. "Yes, sir." Q. "Did he come outside of the car with the wrench?" A. "He did."

"The general rule is that a presumption of murder in the second degree arises from an intentional killing of a human being by another where a deadly weapon is used by him at a vital part of the body, absent proof of other facts tending to show deliberation to raise such killing to first degree murder or to show want of premeditation and malice to reduce the killing to manslaughter or to show that such killing was excusable or justifiable." [State v. Snow, 293 Mo. 143, l. c. 149, 238 S.W. 1069.]

The evidence was sufficient to sustain a verdict of murder in the second degree.

The appellant contends that the trial court erred in giving instruction number four, which is as follows:

"The defendant has interposed as a defense what is known in law as the right of self-defense. Upon this question, the Court instructs you the right to defend one's self from danger not of his own seeking, is a right to which a party may have recourse under certain circumstances and conditions to prevent any reasonable apprehended injury upon himself by another. Therefore, if you believe and find from the evidence in this case that at the time the defendant Ralph Ora Miller, shot and killed Joseph L. Ducos, if you find that the defendant did actually shoot Joseph L. Ducos, he, the defendant, had reasonable cause to apprehend a design on the part of the deceased to kill defendant or do him some great bodily harm, and that there...