State v. Napoli
| Decision Date | 01 December 1931 |
| Docket Number | No. 31316.,31316. |
| Citation | 44 S.W.2d 55 |
| Parties | STATE v. NAPOLI. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.
James Napoli was convicted of manslaughter, and he appeals.
Affirmed.
Wm. P. Elmer, of St. Louis, for appellant.
Stratton Shartel, Atty. Gen., and Henry H. Stern, Asst. Atty. Gen., for the State.
By indictment returned in the circuit court of the city of St. Louis the defendant was charged with murder in the first degree. He was found guilty of manslaughter and his punishment assessed at five years in the penitentiary. He appealed in due form.
Napoli occupied a store on Franklin avenue. He was charged with the murder, May 27, 1929, of a negro woman named Irene Powell. The state introduced Bernard Hagerman, the officer who arrested Napoli. He testified that he saw the body of Irene Powell in the store after midnight May 7, 1929; she had been shot. He took defendant to the police station, where the defendant first stated that he was in the back yard and heard a shot and he didn't shoot the deceased. The next morning he told the policeman that the deceased had been drinking, and had a quarrel with him about his guitar which she wanted and desired to play. He said that he shot her, but claimed it was in self-defense. He said she attacked him with a carving fork and that he got his gun and fired several shots at her. The defendant admitted in open court that the deceased died as result of gunshot wounds inflicted by him. A physician who performed an autopsy testified that she died of the gunshot wounds.
The defendant filed demurrer to the evidence which the court overruled. He then was sworn in his own behalf and testified that he managed a store on Franklin avenue where he sold meats and sandwiches; he said he had a guitar, that deceased desired to play it, and in a quarrel over the guitar she got a meat fork which had two sharp prongs and attempted to attack him with it. He first held a chair in front of him to ward off the attack, but she followed him up, and finally he shot her. He said other persons were in the store; that he had his gun in his pocket when the deceased went for the fork. He was asked about testimony he had given at the coroner's inquest. He said that the deceased had worked for him in cleaning the store and washing and ironing clothes. Defendant also offered evidence to show that he had good reputation and that the deceased had a bad reputation. Among the witnesses was one Cause Jones, who testified that he was in the store and saw the difficulty. He saw the deceased "raising sand" and heard her calling him all kinds of names; she had a fork in her hand and he was trying to keep her away from him with a chair, and he shot her. Jennie Jones also testified to the difficulty; that the deceased broke the defendant's guitar string, threw it away, cursed him, and displayed the fork when he shot her.
The state in rebuttal introduced the official reporter for division No. 10 of the circuit court, who identified the transcript of the evidence taken at the coroner's inquest. That testimony tended to modify the testimony of the defendant, the Joneses, and other witnesses for the defendant, the general effect of which tended to show that it was not necessary for defendant to shoot the deceased in self-defense. The defendant first objected to this testimony given at the coroner's inquest on the ground that no foundation was laid for it. This objection, however, was not carried forward in the motion for new trial; besides, the record shows that the witnesses were asked about their testimony given at the coroner's inquest, covering the same statements which were put in evidence in rebuttal by the state.
I. The first error assigned in the motion for new trial was that the demurrer to the evidence should have been sustained. The state's case was entirely made out on the proof of the corpus delicti, the actual killing of the deceased, and the statements of the defendant to the officers. Whether his contradictory statements to the officers tended to show anything other than self-defense or not, the evidence he introduced at the trial, his own testimony, and that of his witnesses, was sufficient from which the jury might reasonably infer that he did not act in self-defense; that to kill deceased was the use of more force than necessary in order to protect himself from her attack with the fork.
II. The appellant complains of the refusal of the court to give instruction C. It told the jury that the verbal admissions claimed to have been made by one charged with the commission of the crime which would tend to incriminate him should be received by the jury with great caution; that the reason for this cautionary rule lay in the danger that such witnesses may not have heard correctly or remembered what the accused said; the jury, therefore, should consider with great caution the testimony offered by the state to show admissions and statements made by the defendant.
This refers to the contradictory statements of the defendant made to the officers at the time he was arrested, and the next day.
Such a cautionary instruction has been approved in some jurisdictions, but we find no rulings in this state which require a trial court to give it. The defendant cites in support of alleged error State v. Koch, 322 Mo. 106, 16 S.W.(2d) 205. There an instruction was offered by the defendant and refused by this court, loc. cit. 120 of 322 Mo., 16 S.W. (2d) 205, 211, and this court held not error because the matter was covered by a general instruction on the credibility of witnesses.
In this case the court instructed the jury as follows:
Thus the attention of the jury was directed to each and every witness so that they should consider any interest each might have or whether any of them may have entertained a reason for deviating from the truth in testifying. It was a matter of argument to the jury, and no...
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State v. Brown
...Mo.App., 101 S.W.2d 753, 760. No reason was assigned for the request 'that counsel be admonished and the jury discharged.' State v. Napoli, Mo.Sup., 44 S.W.2d 55, 57; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 32. Failure to admonish counsel or discharge the jury on account of the stat......
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State v. Costello
...cited; State v. Hulbert, (Mo.Sup.), 228 S.W. 499, 502(7); State v. White, 299 Mo. 599, 612(b), 253 S.W. 724, 728(11); State v. Napoli, Mo.Sup., 44 S.W.2d 55, 56(3).' This point is accordingly An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error. The jud......
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