State v. Moore

• Decision Date: 10 November 1921
• Docket Number: No. 22989.,22989.
• Citation: 235 S.W. 1056
• Parties: STATE v. MOORE
• Court: Missouri Supreme Court

235 S.W. 1056

STATE v. MOORE

No. 22989.

Supreme Court of Missouri, Division No. 2.

November 10, 1921.

Rehearing Denied December 21, 1921.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

John Moore was convicted of first degree murder, and he appeals. Affirmed.

Appellant, convicted of murder in the first degree, prosecutes his appeal to this court. On April 23, 1920, the grand jury of Jackson county returned the following indictment against appellant:

"The grand jurors for the state of Missouri, duly impaneled, sworn and charged to inquire, within and for the body of the county of Jackson, upon their oaths present and charge that one John Moore, whose Christian name in full is unknown to said grand jurors, late of the county aforesaid, on the 20th day of April, 1920, at the county of Jackson, state of Missouri, in and upon Ula McMahan, then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did make an assault, with a certain revolving pistol, which was then and there loaded with gunpowder and leaden bullets, and by him, the said John Moore, in his hands then and there had and held, he, the said John Moore, did then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, discharge and shoot off, at, upon and against him, the said Ula McMahan, and him, the said Ula McMahan, with the leaden bullets aforesaid out of the pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said John Moore shot off and discharged as aforesaid, then and there, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did strike, penetrate and wound the said Ula McMahan in and upon the body of him, the said Tile McMahan, thus and thereby, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, giving to him, the said Ula McMahan, with the leaden bullets aforesaid, so, as aforesaid, discharged and shot off out of the pistol aforesaid, by the said John Moore, one mortal wound, of ' which mortal wound the said Ula McMahan on said 20th day of April, in the year aforesaid, at the county of Jackson and state of Missouri, died; and so the grand jurors aforesaid, upon their oaths aforesaid, do say, that the said John Moore him, the said Ula McMahan, at the county aforesaid, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder against the peace and dignity of the State.

"Hunt C. Moore, Prosecuting Attorney."

Thereafter on the 7th day of May, 1920, upon his application, appellant was granted a change of venue to division No. 2 of the criminal court of Jackson county, and on the 17th day of June went to trial; the jury returning the following verdict:

"We, the jury, find the defendant guilty of murder in the first degree as charged in the indictment and assess his punishment at death.

                                 "Chas. A. Harleman, Foreman."
                

Appellant shot and killed Police Officer Ula McMahan of the Kansas City police force in front of No. 6 West Missouri avenue, Kansas City, Mo., on the early morning of April 20, 1920. Kirk Tate owned a saloon at that address, and appellant, one McCarty, and J. H. McMahan were standing in front of the saloon a little after midnight of the date of the tragedy. It was closing time; Tate, the owner, came out of the saloon, spoke to the said McCarty, telling him that he ought to go home and go to bed, and then admonished both McCarty and appellant to the same effect. Thereupon appellant, who had been in conversation with McCarty, raised his head and addressing Tate said, "You son of a bitch, I will kill you," and with the words he pulled a pistol and shot Tate twice. Tate reeled and fell to the sidewalk. Officers Ula McMahan, the deceased, and Henry Harris, both in uniform, were patrolmen on duty at the time and had but a few moments before passed southwardly over Main street, on the east side thereof, and had not yet reached Sixth street. On hearing the revolver shots in front of the saloon at 6 West Missouri avenue, both hurried back, crossing to the west side of Main street, and approached the saloon across the southwest corner of Main street and Missouri avenue. Officer McMahan, the deceased, ran ahead of Officer Harris and crossed in a northwesterly direction toward the saloon.

It should be said here that Missouri avenue runs east and west and Main street north and south, and that No. 6 West Missouri avenue is about four doors west of Main street. As the deceased approached the place where Tate had been shot, the appellant and McMahan were both there. As the deceased ran toward appellant, he called to him to halt, whereupon appellant fatally shot the deceased; the bullet striking him in the left hip, passing inward through the abdominal cavity, cutting the iliac artery, producing internal hemorrhage from which deceased soon died. Immediately after firing the fatal shot, appellant ran southeast toward the southwest corner of Missouri avenue and Main street, and at the corner encountered Officer Henry Harris, who had accompanied deceased to that point. Officer Harris had stopped on the corner, and when appellant passed, shots were exchanged. Appellant then ran south on Main street to Sixth street, turning west, and in a little while was captured in an alley at Seventh street and Baltimore avenue. On his person was found a 38-caliber revolver, with six chambers, five of which were empty. Upon being arrested by an officer, he sought to draw his revolver and was hit by the officer and rendered unconscious. Defendant offered no testimony at the trial, but stood on his demurrer to the state's evidence.

Walter W. Calvin, of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

REEVES, C. (after stating the facts as above).

First. Appellant by his motion in arrest of judgment has challenged the sufficiency of the indictment and the verdict. The indictment was sufficient, and the same form has been many times approved by this court. State v. Long, 201 Mo. 634, 100 S. W. 587; State v. Barrington, 198 Mo. 23, 95 S. W. 235. The verdict of the jury was in regular form.

Second. Appellant, by his motion for a new trial and in his brief, challenges the sufficiency of the testimony to warrant the submission of the case to the jury. This contention must be ruled adversely to him. It is undisputed that the appellant shot the deceased at the time and place mentioned in the indictment, and therefore the case was properly submitted to the jury. State v. Ray, 225 S. W. 909; State v. Lewis, 273 Mo. 518, 201 S. W. 80.

Third. Complaint is next made by appellant, both in his motion for a new trial and in his brief, that the court erred in giving instruction No. 3 on behalf of the state. That instruction is as follows:

"The court instructs the jury that if you End and believe from the evidence in this case that at the county of Jackson and state of Missouri on the 20th day of April, 1920, the defendant, John Moore, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did, with a certain revolving pistol and that the same was a dangerous and deadly weapon, shoot one Ula McMahan, inflicting upon him a mortal wound, from which said mortal wound the said lily McMahan within one year thereafter, at the county of Jackson and state of Missouri, died, then you will find the defendant guilty of murder in the first degree and assess his punishment at death or by imprisonment in the state penitentiary for and during his natural life."

The above instruction was proper, under the circumstances of this case, and is of an approved form. State v. McKenzie, 144 Mo. 40, 45 S. W. 1117. Appellant complains also in his motion for a new trial, but not in his brief, against the giving of instructions numbered 1, 2, 4, and 5. It is sufficient to say that these were stock instructions, were all in proper form, and were properly given.

Fourth. Appellant in his brief repeatedly attacks instruction No. 3. His chief complaint is based upon the theory that there was no deliberation on the part of the appellant at the time of the killing, and therefore he could not be guilty of murder In the first degree. This same question in raised by appellant in his complaint at the nondirection of the court in his motion for a new trial. At the close of the case, appellant's counsel requested the court to instruct the jury on all the law of the case and complains, in his motion for a new trial and in his brief, that the court should have instructed on murder in the second degree for the reason that, as he says, there was no deliberation on the part of the appellant. This contention of the appellant cannot stand, as the testimony was abundant to show the intent with which this homicide was committed. An officer in uniform approached appellant for the purpose of detaining him upon suspicion of having committed a felony. The testimony in this case shows the officer's suspicion was well founded, as appellant had but recently committed a most unprovoked and foul assault. As deceased approached him, under circumstances which do not require repetition, appellant turned and deliberately shot him to death. The street was well lighted, and appellant could...