State v. Moore, 45434

• Decision Date: 10 June 1957
• Docket Number: No. 45434,45434
• Citation: 303 S.W.2d 60
• Parties: STATE of Missouri, Respondent, v. Thomas Erwin MOORE, Appellant.
• Court: Missouri Supreme Court

Page 60

303 S.W.2d 60

STATE of Missouri, Respondent, v. Thomas Erwin MOORE, Appellant.

No. 45434.

Supreme Court of Missouri, En Banc.

June 10, 1957.

J. Arnot Hill, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.

STORCKMAN, Judge.

The defendant, Thomas Erwin Moore, was charged in the Circuit Court of Jackson County with the crime of murder in the first degree. The information alleged that he killed his wife by shooting her with a shotgun. A jury found him guilty as charged and assessed his punishment at death. Sentence and judgment were rendered against him in accordance with the verdict.

The defendant, 40 years of age, had been previously married and was divorced in the spring of 1954. He had no children of his first marriage. On June 26, 1954, he married Opal Irene Searcy, a widow. After the marriage they lived at 309 Barat Street in Kansas City, a two-story residence property owned by the wife. Mrs. Moore's three children by her previous marriage lived with them. On January 10, 1955, a daughter was born of the marriage of the defendant and Opal Irene. About two weeks before May 5, 1955, an altercation occurred during which the defendant slapped his wife. There was a hearing in police court and, at the request of the wife, the judge ordered the defendant to stay away from 309 Barat Street except that he was permitted to go back one time to get his clothes and other property, which he did; however, the defendant only took his work clothes and left his other possessions behind.

The wife was killed on May 5, 1955, shortly after 6:00 o'clock a. m., by a shotgun charge fired into her left upper chest. Apparently she died instantly. The state's only eyewitness to the shooting was deceased's daughter Wanda, then 16 years of age. Wanda testified that she and her mother had slept in the same bed in a bedroom on the first floor of the home. Her brother Gene, 17, and her sister Beverly, 9, occupied sleeping quarters on the second floor. The front door was open but the screen door was closed and latched with a hook.

About 6:10 a. m. Wanda was awakened by hearing someone trying to open the front screen door. The person at the front door then 'went in the dining room, it sounded like they were knocking over some chairs, then we heard someone fooling with the telephone and they came to the bedroom and it was my stepfather,' the defendant. Wanda was on the side of the bed next to the wall and her mother was on the other side next to a night stand beside the bed. The defendant moved a chest of drawers and took from behind it one of three shotguns he had left there. He told Wanda and her mother not to move until he told them to; he walked to the night stand, took from it a shotgun shell, and loaded the gun. While he was doing this he said to his wife, 'I guess you know your time is up.' There was a short period of conversation, not over five minutes, during which defendant told his wife 'he wanted her to come back and she wouldn't.' He told Wanda 'he liked us kinds' and she told him 'we would have liked him too if he had treated us right.' Wanda got over in front of her mother and 'he told me to move or he would shoot me, too.' Her mother then told her 'to get back over there' which she did. Her mother started to get up and the defendant told her to stay where she was. He was holding the loaded shotgun and his wife 'told him to put the gun down and behave himself and quit trying to scare' the kids. Mrs. Moore got up to a sitting position on the edge of the bed; 'she started to reach over to the night stand and he shot her.' When Wanda saw the wound in her mother's chest and saw her mother fall to the floor she started screaming, jumped from the bed, ran from the bedroom and out of the house. As she did so she heard her brother and sister coming down the stairs. After the was outside Wanda heard two other shots fired. Wanda further testified that the defendant talked as if he had been drinking, but otherwise he appeared to be normal.

Gene Searcy, sleeping upstairs, was awakened by a loud noise that sounded like a tire blowing out. Hearing his sister Wanda screaming, he put on his pants and ran downstairs. His sister Beverly ran down the stairs just ahead of him. He heard a second report as he was coming down the stairs. Wanda was in the living room screaming and crying, 'Mother, Mother.' She started running out onto the front porch and Gene told Beverly to go out there too. Gene saw the defendant lying on the floor in the passageway between the living room and the bedroom. His head was in the living room and his feet were in the bedroom; the shotgun was laying across his chest. He appeared to be unconscious but his face was not bloody. Almost immediately the defendant got up and started toward the night stand in the bedroom. Gene went into the bedroom and saw his mother lying on the floor between the night stand and the bed. Defendant went to the night stand and got out a shell; as he did so Gene told him to put the gun down. The defendant didn't pay any attention and started into the bathroom. Gene again told him to put the gun down. By that time the defendant had loaded the gun; he pointed it at Gene and told him to get out. The defendant then laid down on the floor of the bathroom and put the gun up to his head with the barrel on his nose pointing up to his forehead. At this Gene ran out the front door onto the front porch. Neighbors had gathered outside by this time and police officers arrived shortly thereafter.

In her testimony Beverly Searcy stated that she awakened on the the morning in question and heard somebody talking downstairs. She heard her stepfather say that her 'Mama was going to die.' She went downstairs just ahead of her brother Gene. She went to the bedroom where her mother was but her brother sent her and her sister out on the front porch and some neighbors came and took Beverly to their home.

Virgil McGough, the first police officer to arrive, found Gene and Wanda sitting on a divan and he asked them what the trouble was. They were hysterical, Wanda was very hysterical, but finally said, 'My stepfather has killed my mother and shot himself.' The officer went into the bedroom and found the body of Mrs. Moore on the bedroom floor. The defendant was lying on the bathroom floor. He was alive but there was a hole in his forehead where part of his skull had been shot away and he was bleeding profusely. Other officers arrived and they were able to get the defendant up into a sitting position. They put a towel around his head to catch the flow of blood and steadied him as he sat there. During this time the defendant was mumbling incoherently but after the ambulance arrived one police officer heard him say to the doctor, 'Looks pretty bad, doesn't it?' The defendant was able, with assistance, to walk to the stretcher in the dining room. An officer testified the defendant was willing to walk and said he could do it.

A police officer took pictures at the scene of the slaying and made a floor plan that was used at the trial. A charge from the shotgun had been fired into the top of the archway under which the defendant was lying at the time he was first seen by Gene. There was evidence that the hook fastening on the front screen door had been pulled out and that the telephone wires in the dining room had been torn from their connections. It was necessary to use an outside telephone to call the police.

The defendant chiefly relied upon a defense of insanity existing at the time his wife was slain. The defendant's father testified that the defendant stayed at the home near Holt until he was 25 years old and caused his father no trouble whatsoever. The son then married and moved to Polo, 20 or 25 miles away. The son farmed for about 14 years and they worked back and forth quite a bit. The son left the farm and worked in Kansas City for a couple of years before this happening. The father never knew of his son being involved in any act of violence until this occurrence.

The defendant testified that he was by occupation a farmer until he moved to Kansas City about two years before. He had never been convicted of any crime. He had been living with his wife, Opal Irene, until about two weeks before May 5. He testified that he had been drinking some the night before the slaying but had gotten some sleep. His purpose in going over was 'to get the rest of my clothes and what odds and ends I had.' He did not go over there to kill his wife. He said the front screen door was not locked and denied that he had forced it open or that he had torn the telephone wires from the wall. He said he went to the bedroom, moved the chest and got one of the shotguns he had left there; his intention was to take the guns apart and wrap them. As to what happened after that he testified at one time, 'I don't actually remember, I shot myself, other than that I actually don't know what happened.' He was grief-stricken over the loss of his family. He said he had no recollection of shooting his wife. He claimed that Wanda wasn't in the room when the shots were fired, that she had run out and her doing so was the first knowledge he had that anybody was in the house. He testified that Wanda had jumped out of bed, screamed, and was on the way out, possibly at the front door, when he fired a shot at himself.

On cross-examination the defendant conceded that he had slapped his wife about two weeks before May 5 and that he went over to the house that morning in violation of court orders and he didn't notify Mrs. Moore or any of the children that he was coming. He stated that when he took the gun from behind the chest of drawers Wanda jumped out of bed, screamed and ran, and that he said to her, 'Wanda, what is the matter?' He testified that he shot himself with the first shot and couldn't remember anything that happened after that; he didn't even remember loading the gun. The...