State v. Peterson
| Decision Date | 25 September 1941 |
| Docket Number | No. 37471.,37471. |
| Citation | 154 S.W.2d 134 |
| Parties | STATE v. PETERSON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Benton County; C. A. Calvird, Judge.
Charles Peterson was convicted of murder in the first degree, and he appeals.
Affirmed.
Roy McKittrick, Atty. Gen., and W. J. Burke, Asst. Atty. Gen., for respondent.
Charles Peterson appeals from a judgment of the Circuit Court of Benton County sentencing him to life imprisonment on conviction of murder in the first degree in having shot and killed Fred J. Leavitt on September 26, 1939. The case was transferred from Polk County (where it originated) to Benton County on defendant's application for a change of venue.
Defendant has not filed a brief in this court, and we, therefore, look to his motion for a new trial for his assignments of error, twelve of which are attempted to be stated. Such of them as are sufficient to preserve anything for appellate review will be noticed during the course of this opinion. No question arises in relation to the evidence, except a general challenge of its sufficiency to support the verdict, and one complaint respecting the admission of certain shells or cartridges. The other alleged errors relate to the denial of a continuance, the giving and refusal of instructions, and allegedly improper argument and conduct on the part of the state's attorneys. The fact of the killing, which occurred on the streets of Bolivar, at or near the northwest corner of the public square, stands admitted by defendant. He pleads self-defense and insanity.
Defendant was 28 or 29 years of age. He first went to Polk County in 1934, and resided there at intervals thereafter. Sometime before the date of the homicide, upon being released from the Missouri Penitentiary upon compliance with a sentence for forgery, imposed by the Polk Circuit Court, he returned to said county. It was shown that shortly before the homicide, defendant had threatened to "get even" with the judge, prosecuting attorney and Sheriff Butler for sending him to the penitentiary on the charge just referred to. The deceased was a deputy under Sheriff Butler, as well as marshal and night watchman at Bolivar. On the day in question defendant's stepmother complained to the Prosecuting Attorney (who was a brother of deceased) that defendant was "packing" a .38 pistol concealed upon his person, and that she had seen the same in a shoulder holster which he carried. This report was communicated to Sheriff Butler and his said deputy with the request that it be investigated. About 8 o'clock that evening the two officers just mentioned were standing in front of the City Drug Store, which was located on the west side of Main Street just opposite the public square. Main Street runs north and south. Broadway, an east and west street, intersects Main at the northwest corner of the public square. The Polk County Bank building is at the southwest corner of that intersection, abutting Broadway on the north and Main Street on the east. It is some 28 steps north from the City Drug Store to the bank corner. While the Sheriff and his deputy were in front of the City Drug Store they were visiting with a stockman, a witness on the part of the state. While so engaged defendant walked along the sidewalk going north. The Sheriff spoke to him, saying, "Hi, Charlie" to which defendant responded. The Sheriff and Leavitt then followed defendant to the bank corner, which was some 28 steps (approximately 75 feet). They were following along some ten feet behind him. They had no warrant for his arrest. When defendant reached the Polk County Bank building, he turned west on Broadway. As he turned the corner, the Sheriff called to him saying, "Charlie, wait a minute; I would like to talk to you a little bit." Whereupon, defendant, without any warning, whirled around, firing a revolver. One of the shots struck the Sheriff in the left armpit, temporarily disabling him, and the other struck and instantly killed deceased. It is not clear how many shots were fired, but it is certain there were several more than the two just mentioned. Defendant ran west on Broadway, and commandeered a car driven by the Superintendent of Schools, and at the point of a gun, required the latter to drive him through town, out to the highway, and on to a neighboring village where he left the car and made his escape. Some forty-eight hours later he surrendered. It was established by several disinterested witnesses that the only shots fired were those fired by defendant. The Sheriff testified that neither he nor deceased had drawn their guns at the time he was shot and the deceased killed.
Defendant had been arrested on several occasions, and at least one time by the Sheriff, who searched him and found no concealed weapon. It seems that whenever he came home his relatives complained to the officers. His relations with his father and stepmother were strained. On one occasion shortly before the homicide, when he thought the officers were searching for him, he stated to his wife that they would never take him alive. His version of the killing was that after he turned the corner he heard somebody walking behind him
The facts in relation to the defense of insanity were shown by his wife, an uncle and his wife, and two fellow prisoners in the Benton County jail while he was awaiting trial. The showing was weak and inconclusive. The testimony of the wife in respect to that issue was to the following effect: That in an altercation with his father in Nebraska (apparently in 1932) the latter struck defendant over the head with a club, inflicting an injury of which he thereafter complained; that two insanity proceedings were instituted against him which resulted in his discharge, but that on January 10, 1934, he was adjudged insane in the State of Nebraska, and committed to an institution from which he escaped some sixty days thereafter. In the meantime she had removed to Missouri, and he followed her here in June. She further testified that after coming to Missouri, he complained of his head hurting him, he had "spells," and "when you would talk to him, he didn't pay any attention, and would look at you with a blank expression in his face"; that he would go outdoors to do something and forget what he was going to do; that he was nervous and excitable, and noises bothered him, causing him to jump — "he would get a headache and then he would go into one of those spells when he wouldn't know a word you said to him"; that one night he got up and went out and stayed in an electrical storm for fifteen minutes, and refused to come inside; that he would brood and worry about not having food for his family. She further testified that after he returned from the penitentiary (the date does not appear, but he was convicted in February, 1937, and sentenced to two years), he was decidedly worse, "more moody, flighty, and complained more of his headaches"; that the least little noise caused him to jump and imagine there was someone behind him; that he came home one night complaining that a negro was following him, and was trying to kill him; that "often times he would walk around in circles." Further, on the issue of insanity, his wife testified that when she was about 13 years old, defendant and her mother (who was defendant's stepmother) ran off to Iowa and lived together as man and wife, and that she accompanied them; that this performance was repeated after she became a little older, and while so living with his stepmother, and wandering over the country, defendant was responsible for her (the witness) becoming pregnant, and wanted to marry her; that her mother was infatuated with defendant and indignantly declined to permit the marriage, saying if she couldn't have him herself, she wouldn't let anybody else have him. The trio returned to Nebraska in 1932, and rejoined defendant's father, and thereafter, the mother still protesting, the witness and defendant were "married under the direction of the law," and that as soon as defendant ran away from the institution hereinabove referred to, "the folks had orders to leave the state" and they came to Missouri.
Defendant's uncle testified that defendant was at his farm...
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