State v. Mills

• Decision Date: 03 April 1944
• Docket Number: 38834
• Parties: State v. Ernest Mills, Appellant
• Court: Missouri Supreme Court

179 S.W.2d 95

352 Mo. 774

State v. Ernest Mills, Appellant

No. 38834

Supreme Court of Missouri

April 3, 1944

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Reversed and remanded.

Corbett & Peal for appellant.

(1) The most the defendant could have been guilty of under the evidence, is culpable negligence, in that he might have known, by the exercise of ordinary care and caution, that in shooting toward the house of Mrs. Wright, that one of the bullets might go into the house and kill or injure some of its occupants. (2) Manslaughter is the unjustifiable and inexcusable killing of a human being without malice aforethought. Sec. 4382, R.S. 1939; State v. Connor, 252 S.W. 713; State v. Conley, 225 Mo. 185, 164 S.W 193. (3) One phase of "manslaughter" is the doing of an act otherwise lawful, without malice or design negligently and without proper caution, causing bodily harm resulting in death. State v. Mull, 318 Mo. 647, 300 S.W. 511. (4) The court erred in rejecting competent, relevant and material evidence offered by the appellant, particularly the evidence of Mary Cole and J. C. Mosley, as to prowlers and burglars being about the Armstrong house on the night preceding the night Helen Wright was shot. If the prior or subsequent conduct of the defendant is so related to the alleged shooting of deceased as to supply a motive for the murder of deceased, the proof of such extraneous conduct is competent. And, such evidence is competent, if it negatives accident, inadvertence or mistake. State v. Duestrow, 137 Mo. 44; State v. Hyde, 234 Mo. 200; State v. Concelia, 250 Mo. 411. (5) Motive is a very vital matter in a case, where the defendant claims that his unlawful act was the result of inadvertance, mistake or accident. State v. Jones, 249 Mo. 80; State v. Page, 212 Mo. 224. (6) Instruction 3, being in the usual and ordinary form of instruction for murder in the second degree, should not have been given, for the reason the evidence did not show murder in the second degree, but at most manslaughter. State v. Connor, 252 S.W. 713; State v. Conley, 255 Mo. 185, 164 S.W. 193. (7) The failure of the trial court to instruct the jury on manslaughter where the evidence justifies it, even though not requested, constitutes reversible error, provided the motion for a new trial preserves the question. State v. Mull, 300 S.W. 511; State v. Burrell, 298 Mo. 672, 252 S.W. 709; State v. Conley, 164 S.W. 193.

Roy McKittrick, Attorney General, and John S. Phillips, Assistant Attorney General, for respondent.

(1) Appellant's first assignment of error is insufficient and does not conform to the statutes. Sec. 4125, R.S. 1939; State v. Richardson, 102 S.W.2d 653, 340 Mo. 680; State v. Couch, 111 S.W.2d 147, 341 Mo. 1239; State v. Dennison, 154 S.W.2d 756. (2) The court did not commit error in excluding testimony complained of in appellant's assignment of error No. 2, since the testimony did not refer to acts which were a part of the res gestae and were too remote. State v. Fenley, 275 S.W. 36, 309 Mo. 520; State v. Shawley, 67 S.W.2d 74, 334 Mo. 352; State v. White, 99 S.W.2d 72, 339 Mo. 1019; 22 C.J.S., p. 978, sec. 338. (3) The court did not commit error in failing to give a manslaughter instruction. Secs. 4125, 4425, R.S. Mo. 1939; State v. Hayes, 262 S.W. 1034; State v. Robinett, 279 S.W. 696; State v. Dodson, 29 S.W.2d 60; State v. Sharp, 34 S.W.2d 75, 326 Mo. 1063; State v. Lindsey, 62 S.W.2d 420, 333 Mo. 139; State v. Carroll, 62 S.W.2d 863, 333 Mo. 558; State v. Bartley, 84 S.W.2d 637, 337 Mo. 229; State v. Crouch, 124 S.W.2d 1185.

OPINION

Ellison, J.

The appellant, a nineteen year old boy, was convicted of murder in the second degree by a jury in the circuit court of Pemiscott county for shooting and killing Helen Wright. But they reported in their verdict that they were unable to agree on the punishment and recommended leniency. The court fixed the punishment at ten years' imprisonment in the penitentiary. The assignments of error on this appeal complain of the insufficiency of the evidence and verdict; the exclusion of competent evidence; the giving and refusal of instructions; and improper argument to the jury by the prosecuting attorney.

The facts, in brief, are that appellant and a young man named Robert Overfield were jointly prosecuted by information for the homicide charged. Overfield took a severance, plead guilty to manslaughter and was paroled on the morning of appellant's trial, and testified for the State. The shooting occurred perhaps between 8 and 9 p.m. on December 26 -- after dark, at least -- one of the bullets entering the farm home of Mrs. Mary Wright and killing her 15 year old daughter. That place was on the same side of the road "two light poles" from the home of John Armstrong. Appellant's brief says the distance was 250 feet. There was a good sized barn between them. Armstrong was Overfield's uncle and appellant's great-uncle. The two boys had been in town all day with some of the Armstrong family and others, and there was testimony of some whiskey and beer drinking. But the evidence is very weak that appellant was drunk. He testified he had not taken a drink since noon. He had returned to the country and visited in the Wright home about an hour before the shooting; and while Mrs. Wright said on direct examination that appellant had been drinking, yet on cross-examination she admitted he wasn't drunk, and that she was "just going by the rest of them saying they were drinking."

From here on the direct evidence is very conflicting. Overfield testified that after appellant had returned from the Wright home to the Armstrong home, and after they had made a side trip to a neighbor's for some tobacco, appellant proposed that they "scare the widow woman" -- referring to Mrs. Wright. Overfield got a .38 caliber pistol and a .22 caliber rifle belonging to John Armstrong, giving the rifle to appellant. Overfield says he went out on a bridge in front of the Armstrong house and fired the pistol in the air twice; and that appellant went down by the fence that led to Mrs. Wright's home -- how far, it was too dark for him to tell. Apparently he didn't hear or see the shots appellant fired. He was silent on that point, but said he didn't know how many shots were fired. He further testified that after the shooting appellant proposed they make up the false story that they were shooting at somebody. He declared he didn't see any prowlers that night. On cross-examination he denied that he and appellant agreed to say they were shooting at "some prowlers"; but he couldn't remember whether he had made an answer to the opposite effect at the preliminary hearing, when a part of his testimony at that hearing was read to him.

Appellant testified that after returning to the Armstrong home from the Wright home and the tobacco trip, he and Overfield got the rifle and pistol and each fired twice. He denied proposing to Overfield that they scare Mrs. Wright; and started to say "there had been people prowling around the night before" -- when he was stopped by the court upon an objection by the prosecuting attorney "about the night before." Then he stated he and Overfield "heard something outside," got the two firearms and on coming outside he "seen him, and seen the bulk of him and shot out in the dark." He declared he was "shooting at a prowler, the man that ran off;" and denied making up a false story to that effect with Overfield. He further disclaimed any intention to injure any one in Mrs. Wright's house. On cross-examination he said the man was running toward the ditch in the direction of Mrs. Wright's home; and that he shot from in front of the Armstrong house in the corner of the yard or lot. The barn stood back of a line between the Armstrong front yard and the Wright home -- so, evidently, it would not be in the course of a bullet fired from the former point toward the latter. He did not see Mrs. Wright in the doorway with a light in her hand; and did not know of the fatal effect of the shots until notified a little later. Constable Michie testified without objection that just before the inquest over the corpse that night, when appellant was asked if he had anything to do with the shooting he answered "Yes" and explained he fired the rifle at a burglar in the barn lot in the direction of Mrs. Wright's house. Three witnesses testified to appellant's good reputation as a law abiding citizen.

Mrs. Wright testified the shooting at her house began after she and her children had retired. She got up, lighted the lamp and opened the door. There she saw "the bulk of someone" 10 or 15 feet away. She thought it was Ernest Mills (the appellant). But that answer was stricken out and the jury instructed to disregard it because it was merely an opinion without factual foundation. Two shots were fired after the door was opened. The child, Helen, must have been struck by one of these two shots, for she was dressing -- standing in a stooped over position buttoning the back of her clothes. The bullet entered the left side of the left breast above the heart and ranged slightly down, lodging in one of the vertebrae. It was a .22 caliber shot. There were four bullet holes in the bedroom wall. One bullet went through the stove pipe about 3 feet above the floor and one was found on the floor. These also were .22 caliber, so all must have come from appellant's rifle.

When appellant was notified of the girl's death by Odell Armstrong, who was passing by the Wright home, he with other neighbors got a truck to which he carried her, and took her to a doctor in Steele. Appellant offered to prove by a Miss Cole that the night before the shooting she was at the...