State v. Mosley
| Decision Date | 11 December 1929 |
| Docket Number | 29799 |
| Citation | 22 S.W.2d 784 |
| Parties | STATE v. MOSLEY |
| Court | Missouri Supreme Court |
Arthur L. Wackwitz and Charles M. Clarke, both of St. Louis, for appellant.
Stratton Shartel, Atty. Gen., and Smith B. Atwood, Asst. Atty. Gen for the State.
In an indictment filed in the circuit court of the city of St Louis, the grand jury charged defendant with murder in the first degree. Tried to a jury, the verdict found him guilty of murder in the first degree, as by the indictment he stands charged, and assessed the punishment at death. Defendant appealed.
The evidence adduced on behalf of the state warrants the finding that, previous to September 10, 1927, defendant and one Mildred White, respectively a negro and negress, had cohabited, without the ceremony of marriage, as man and wife for a period of approximately four years. On the day mentioned, they resided at 1820 Division street in the city of St. Louis. Across Division street at No. 1821, one Marcus Bass and his wife, Becky, operated a grocery store, probably unpretentious, for it may be inferred that they waited on the trade. About 8 o'clock in the evening of September 10, 1927, defendant sent Mildred, his common-law wife, to the grocery store mentioned to purchase supplies. Mildred carried in her arms a baby girl less than a year old, the offspring of her cohabitation with defendant. Defendant's written and signed confession advises that Mildred had been gone for a longer time than he thought necessary, so he followed her to the grocery store and found her standing in front of the counter. Defendant asked Mildred why she had been gone so long, and requested her to go home. Thereupon Mildred ran behind the counter, and defendant drew from his pocket a revolver and began shooting at Mildred. Marcus and Becky Bass ran between defendant and Mildred, and defendant shot both of them. The confession further states that the reason he shot Mildred was that she had been trifling on him, that she had been late in coming home from work, and that she was also gone very long when she went to the store. At the time he shot Mildred she was holding the baby girl. After shooting her, she ran to the rear room and fell on the floor, whereupon he took a cheese knife from the counter and stabbed her several times.
The evidence further tends to show that Marcus Bass died instantly with a bullet through his heart. Becky lingered about four days, and died from peritonitis, caused by a bullet wound. The baby girl was shot in the lower left leg. Mildred suffered three gunshot wounds, and was stabbed by defendant thirteen times, any of which was sufficient to cause death. A negro man by the name of Brooks had his attention drawn to the actions of defendant by Mildred's eight year old boy Sammy, who cried, 'He has killed my mother.' Brooks then looked through the grocery store window, and first saw defendant beating Mildred on the head with the butt of a revolver until it broke. He then observed him get a knife from the counter and stab her repeatedly while she lay prostrate on the floor. When the point of the knife bent, defendant obtained another from the counter and continued the stabbing.
The only witness who testified in defendant's behalf was the sister of Mildred. She knew nothing with respect to any difficulties between defendant and Mildred. She stated that defendant did not want her husband to come around his house. Other facts relating to the issues raised will be found in the opinion.
I. Defendant charges the trial court erred in refusing to grant him a continuance. The cause came on for trial on February 20, 1928, at 10 a. m. Defendant orally asked for a continuance on the ground that his attorneys had not had sufficient time to prepare his defense properly. On the suggestion of the court that an affidavit for a continuance be prepared, the attorneys were given until 2 o'clock that afternoon to do so. The affidavit, sworn to by said attorneys and filed, deposes that said attorneys were appointed by the court on October 12, 1927, to represent defendant; that on November 11, 1927, the attorneys moved the court to have defendant examined to determine his sanity; that defendant was committed on December 24, 1927, to the St. Louis sanitarium for examination, and that said examination was not completed until approximately one week before February 20, 1928; that defendant is without funds to have a further examination made; that he is incoherent in his speech, and apparently cannot give his attorneys any assistance in the conduct of the trial; that, from defendant's speech and actions, the attorneys are of the opinion that he is insane and unable to aid counsel in his defense; that they have not been furnished funds with which to have an examination made; that they have not had sufficient time to prepare the defense properly so that defendant may have a fair trial; and that the report from the city sanitarium shows, or purports to show, that the defendant is now and was at all times heretofore sane.
The sustention or refusal of an application by a defendant is largely within the discretion of the trial court, and, unless the record shows an abuse of such discretion, this court will not interfere. State v. Harrison (Mo. Sup.) 285 S.W. 83; State v. Williams (Mo. Sup.) 263 S.W. 198. The gist of the application was that defendant's attorneys had not sufficient time to prepare for trial, because said attorneys believed that he was insane and could not be of aid to them in the conduct of the trial, and that they could not prepare for trial because defendant, or possibly the state, had not furnished them with funds with which to have further examinations made as to defendant's sanity. It is evident, however, from the affidavit that the state investigated his sanity through fair and impartial experts in charge of the city sanitarium before defendant was put upon trial. In other words, the state did all it ought to do. The affidavit does not show, or attempt to show, that defendant or his attorneys could have obtained funds for a further examination. In view of the facts stated in the affidavit, we do not think the court abused its discretion.
II. It seems that the trial court, when determining defendant's motion for a continuance, mentioned a report of a Dr. Lee of the city sanitarium, where defendant was taken for examination as to his sanity, which stated, in substance, that defendant had been given a physical examination as well as a thorough examination and observation as to his sanity, and that it was the unanimous opinion of the entire staff that he was sane and a malingerer. Defendant objected on...
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