State v. Reagan
| Decision Date | 21 June 1937 |
| Docket Number | 35308 |
| Parties | STATE v. REAGAN |
| Court | Missouri Supreme Court |
Rehearing Denied August 26, 1937.
Henry Rowe, of St. Louis, and John D. Taylor, of Keytesville, for appellant.
Roy McKittrick, Atty. Gen., and James L. Hornbostel, Asst. Atty Gen., for the State.
COOLEY, Commissioner.
Appellant was convicted of murder in the second degree for the killing of Clifford Glenn Appler, sentenced to fifteen years' imprisonment, and has appealed. The fatal shooting occurred on May 11, 1933. Appler died a few days later. Appellant left St. Louis and was located and arrested in Kansas City about two years later. There appears to have been one mistrial. The trial which resulted in the conviction giving rise to this appeal was held in March, 1936.
The state's evidence tended to show the following
Appellant owned a four-family apartment building, fronting on Maryland avenue, in St. Louis. He lived in a second-floor room or apartment of that building. Back of the building there was an open space, or yard, in which boys and young men would sometimes play ball, or 'catch,' as it is occasionally called in the evidence; the play consisting simply of tossing or throwing the ball back and forth between two of them. Mrs. Florence Wright, with her family, occupied one of the apartments. On the occasion in question, the afternoon of May 11, 1933, Mrs. Wright observed deceased, Appler, whom she had never previously seen, and two boys whom she recognized, Bob Dryden and Emerson Payne, come into said yard and start tossing a ball back and forth. Her attention was attracted by hearing appellant's voice, from the back porch of his room or apartment. She testified that she did not know what he first said; the first words she distinguished were from Appler, saying, 'Well, we are only playing ball'; Reagan then said, 'Well, that's my property and get the hell off of there,' in a 'rather hard' tone of voice; that Appler then said, 'Well, all right, we'll get off, but you don't need to be so hard about it'; that after some words, which she did not remember, were 'bandied back and forth,' Appler said, 'Well, you could be a gentleman about it,' 'and then I heard him say, 'Well, you are just a short sport anyhow' ''; that Reagan then said, 'Who's a poor sport?' Appler said, 'Oh, never mind, we are getting off your property, come on' (the last words, 'come on,' apparently to his two boy companions) 'and they went back into their own yard and stood there a minute or two and walked back slowly towards the alley preparatory to playing ball in the alley.' ''
Dryden and Payne lived in an apartment just west of the Reagan apartments, in the rear of which was an alley. The evidence shows that after Reagan had ordered Appler and the two boys off his property, the three went into said alley, Dryden and Payne stopping some fifteen or twenty feet west of appellant's property line and Appler some fifty or sixty feet farther west in the alley, and were about to resume, or had resumed, their game of 'catch' when appellant, who had armed himself with a pistol and had come down from his apartment, approached. The state's evidence tended to show that he passed Dryden and Payne and advanced toward Appler; that, as he approached, Appler took several steps toward appellant, but with nothing in his hand and making no hostile demonstration; that as the two men neared each other appellant said to Appler, 'You didn't think I would come down did you?'; that Appler backed away from appellant and said, 'What did I ever do to you, Mister?'; that appellant drew his pistol, Appler seized his wrist, apparently trying to prevent being shot, and after a short struggle appellant 'jerked loose' and shot Appler.
One witness for the state, Payne, testified that appellant, when he first drew his pistol, hit Appler on the head with it, drawing blood, and that then Appler seized appellant's wrist in an attempt to protect himself from further injury. There was also evidence on behalf of the state to the effect that after Appler had told appellant, while the latter was on his back porch ordering Appler and the two boys off his premises and when Appler had said to him that he needn't be so hard, or so tough, about it, appellant had said he would come down and show Appler how hard, or how tough, he was.
Appellant offered no evidence except his own testimony, which we quote from his brief as follows:
'The defendant testified that he was fifty years old; that he was the owner of the property known as 4351-59 Maryland Avenue, and had lived there in the second-floor apartment of the east building for about six months prior to the homicide. That prior to Mary 11th, when he ordered deceased off his premises, he and the tenants had been annoyed by the noise, dirt, dust and 'hollering' of boys playing ball there, and had complained to the police about it three or four times; that Clifford Appler, the deceased, was a man about thirty-two years of age, about six feet tall, weighing about 200 pounds; that he had seen Appler playing ball on his lot three or four times prior to May 11th, 1933; that on the afternoon of the killing his attention was attracted by the noise and 'hollering' of someone playing ball on his lot; that he stepped out on his back porch and ordered them off; that deceased, who was one of them, told him not to get so tough and to come down and try to put him off; that the only strong language he used was to tell them 'Get to hell out of there' That deceased challenged him to come down, saying, 'Come down, you tough son-of-a-bitch, and try to put us off' Defendant then went into the house, put the pistol in his pocket and went downstairs. Testifying further, defendant said that he put the pistol in his pocket to go down and frighten them out of the yard. That when he got downstairs deceased was on the west side of the yard, going toward the alley. Defendant said his intention in walking down the yard towards deceased and his companions at that time was to tell them he didn't want any more ball playing there, and if they didn't quit it he was going to have them arrested. Defendant further testified that when he got down to the alley deceased was up the alley a piece, and when he saw defendant he turned around and started back towards him. As deceased came towards defendant he reached down and picked up a brick, and when he got within six or eight feet of defendant said, 'I am going to knock your teeth out, you old son-of-a-bitch' Defendant said that he then pulled the pistol out of his pocket and said, 'Drop that brick; drop that brick' And that deceased lunged and grabbed hold of the pistol; that he and deceased then 'rastled' and scuffled around until the pistol was discharged. Defendant said he did not know how the pistol happened to be discharged; that both he and deceased had hold of the pistol at the time. Defendant said that he only pointed the pistol at deceased to frighten him and make him drop the brick; that he did not intend to shoot him; that he was afraid of deceased, as he was much younger and taller than he was.
'Defendant further testified that he did not know and could not tell how the pistol was discharged during the scuffle.
'Defendant said that if it was discharged by him, it was not done intentionally, 'it was done accidentally'; that he did not hit deceased over the head with the pistol.'
Defendant further testified that he was angry -- 'mad' as he said -- when he left his apartment. There was no evidence other than defendant's testimony that Appler called him a son of a bitch or used any opprobrious epithets or language toward him, except to say that he (defendant) was a 'short sport' or poor sport.
The court instructed on murder in the first and second degrees, on manslaughter, self-defense, and accidental homicide, giving also the usual instructions on reasonable doubt, presumption of innocence, credibility of witnesses, and on flight to avoid arrest. Other facts as may be necessary will be given in the course of the opinion.
Defendant in his motion for new trial asserts that the indictment is vague, indefinite, and uncertain, and does not fully advise the defendant of the cause of the accusation against him, and that the verdict is 'indefinite, uncertain and insufficient.' These are matters of record proper, which it is our statutory duty to examine, whether or not they are preserved by motion for new trial. See State v. Settle, 329 Mo. 782, 46 S.W.2d 882; State v. Revard (Mo. Sup.) 106 S.W.2d 906, decided concurrently herewith, not yet reported [in State report]. The indictment in this case is in the ordinary and oft-approved form, charging murder in the first degree, which includes a charge of murder in the second degree and of manslaughter. By the verdict the jury found the defendant 'guilty of murder, second degree and assess the punishment at imprisonment in the penitentiary for fifteen (15) years.' The indictment and verdict are both sufficient.
It is contended in the motion for new trial that the court erred in not sustaining defendant's demurrers to the evidence offered at the close of the state's case and again at the close of all the evidence. From our statement of facts it is obvious that this assignment is without merit. Appellant apparently so recognizes, as he has not briefed that point here.
In his motion for new trial defendant charged error in the court's refusal to give his requested instructions numbered A to Q, inclusive, seventeen in all, 'said instructions and each of them declarative of law necessary for the jury's information, and applicable to the facts evidence and the cause on trial.' No attempt is made to set forth in detail and with particularity 'the specific...
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