State v. Parmenter

• Decision Date: 03 June 1919
• Docket Number: No. 21340.,21340.
• Citation: 278 Mo. 532,213 S.W. 439
• Parties: STATE v. PARMENTER.
• Court: Missouri Supreme Court

213 S.W. 439

278 Mo. 532

STATE v. PARMENTER.

No. 21340.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from Circuit Court, Caps Girardeau County; E. M. Dearing, Special Judge.

J. R. Parmenter was convicted of murder in the second degree, and he appeals. Affirmed.

Edw. D. Hays, of Cape Girardeau, and Mozley & Woody, of Bloomfield, for appellant.

Frank W. McAllister, Atty. Gen., and Henry B. Hunt, Asst. Atty. Gen., for the State.

WALKER, J.

The defendant was charged by information with murder in the first degree, in having shot and killed Albert E. Demortiers, in the city of Cape Girardeau, October 27, 1917. Upon a trial he was convicted of murder in the second degree, and his punishment assessed at 18 years' imprisonment in the penitentiary. From this judgment he appeals.

About 9:30 p. m. the night of the murder defendant showed one Thompson four or five 32-caliber revolver cartridges and said he was "going to get a dirty s____ of a b____ that night." Thompson adjured him to keep out of trouble. Thereafter, at about 11:10 p. m., defendant was seen talking to the deceased, a policeman in uniform, on the corner of Broadway and Sprigg streets, in Cape Girardeau. The deceased told the defendant if he did not behave he would have to get off of the street or go home, or he would be locked up. The latter replied that the deceased was a d____d liar, and was the same policeman who had run him home from down town. The deceased turned and laughingly said to a bystander, "He mistakes me for another man." Defendant then went into a nearby saloon, and the deceased went east on Broadway. Ten or 15 minutes later the defendant and the deceased met in front of another saloon. While the deceased was engaged in conversation with one O'Connell, defendant stepped up behind them and said: "What are you fellows doing out here so late?" Deceased, answering him, said, "Dad, you'd better go into the saloon or go home." Deceased then proceeded west on Broadway, followed by the defendant. A few minutes later one Minton, also going west on Broadway, heard a shot fired. He looked up, and at a distance of about 300 feet he saw the deceased and the defendant at the corner of Broadway and Middle streets. The deceased had fallen on the north side of an iron electric light pole. As the witness looked up he saw the defendant step forward, stoop over the prostrate body of the deceased, and shoot him in the right side of the head. The defendant then turned, and as he passed Minton the latter saw the revolver with which he had done the shooting in his hand. There were two other eyewitnesses to the tragedy, a man and a woman, the former being at the time some distance away on Broadway, and the latter near at hand in a secondstory room with a window opening on the scene. Their testimony, barring minor differences was the same as that of Minton. The woman saw the defendant walking towards the scene before he fired the first shot, and after the second she saw him go east on Broadway. No words passed between the deceased and the defendant before the latter fired the shots, and there was no scuffle. After the shooting the defendant was seen to make a throwing motion as if he were casting something away. A young man named Whitelaw, after the defendant's arrest, searched a lot near at hand, in the direction in which the defendant had made the motion, and found a 32-caliber pistol, which he gave to an officer. It had five cartridges in the cylinder, two of which had been fired. Shortly after the murder the defendant was arrested at his home. He denied having been down town that night, and made a like denial at the city jail. On his person were found several 32-caliber cartridges and an open knife.

The deceased, when examined by those who hurriedly reached the scene, was still. breathing, but died in a few minutes thereafter, without regaining consciousness. An examination of his body disclosed two bullet wounds. One had entered the right temple at the hair line, the outer skin around the wound being powder-burned. This wound entered the skull and was fatal. The other wound entered the neck on the left side and ranged upward.

After defendant's arrest he was taken to the jail. At that time he had no marks or bruises on his person, blood on his clothing, or any evidence of having engaged in an altercation. After being lodged in the jail, the chief of police and three other officers, at about 1:30 a. m., went to the jail building, opened his cell, and called to him to come out. He rushed out at the chief, who hit him on the head with a billy. Straightening up from the effect of this blow, he again rushed at the chief, who struck him a second time, from which blow he fell, the blood running down over his clothing. After he fell, the officer struck him several times with the strap end of the billy.

The testimony on behalf of the defendant was substantially as follows: That his reputation as a law-abiding citizen was good; that on the evening of the killing he went home about 10 o'clock p. m.; that about 11 o'clock he went back to town for a walk. After taking a drink at a saloon, he walked out on the street, where he saw the deceased and another engaged in conversation, and asked them what they were doing out so late at night. Deceased told him he had better go inside or go home or he would get hurt. Defendant then started home, going west on Broadway. Deceased stopped the defendant at the corner of Broadway and Middle streets, where at the time the former was standing close to a lamp post. The deceased asked defendant if he had not told him to go home, and defendant said "Yes." Deceased then asked defendant where he was going, and he answered that he was going home. Thereupon the deceased asked the defendant if he had not told him he would get hurt if he did not go home, and defendant said, "Who would hurt me? " Deceased replied, "l: will," and struck defendant with his fist, and kicked defendant in the groin, knocking his cane out of his hand. Defendant stooped to pick up his cane, and deceased struck him on the head with his club and knocked him to his knees. Defendant then drew his pistol, which is the last thing he remembers until he found himself in the city jail. It was contended by the defendant that the bruises on his head and the bloody condition of his clothes were the result of injuries inflicted on him by the deceased just before he was shot, and that they were not inflicted by the officers after the homicide, at the jail, as testified to by them.

I. The admission of the testimony of the witness Thompson of a general threat made by the defendant three or four hours before the homicide was not error. Evidence of this character is admissible as tending to show the malice prepense of the defendant, although the threat may not be directed against any particular person. We so held in State v. Fletcher, 190 S. W. loc. cit. 320, although the threat in that case consisted simply in a declaration by the accused, made several hours before the homicide, that am going to get him some day." In State v. Feeley, 194 Mo. loc. cit. 313, 92 S. W. loc. cit. 666, 3 L. R. A. (N. S.) 351, 112 Am. St. Rep. 511, a general declaration made by the accused that "he was a straight shot and a game man, he," the person addressed, not the one who became the victim, "would find it out," was admitted in evidence to show general malice and a disposition on the part of the accused to commit a crime.

The remoteness of the threat in the case at bar was not a ground for its exclusion. This might, if sufficient time had elapsed between the making of the threat and the commission of the crime, have affected its probative force, but not its admissibility. In State v. Ryder, 258 Mo. loc. cit. 230, 167 S. W. 524, the threat admitted in evidence was made a year prior to the crime. We therefore overrule the contention as to the inadmissibility of the threat.

II. The contention is made that the court erred in not giving an instruction defining the authority of the deceased as a police officer; that defendant had been guilty of no conduct authorizing his arrest or justifying his being ordered the...