State v. Ross
| Citation | 371 S.W.2d 224 |
| Decision Date | 09 September 1963 |
| Docket Number | No. 49748,No. 2,49748,2 |
| Parties | STATE of Missouri, Respondent, v. Dave ROSS, Appellant |
| Court | United States State Supreme Court of Missouri |
Lee D. Seelig, Kansas City, for appellant.
Thomas F. Eagleton, Atty. Gen., Jefferson City, Dale Reesman, Sp. Asst. Atty. Gen., Boonville, for respondent.
The defendant Dave Ross, charged with second-degree murder, was found guilty of manslaughter and his punishment was assessed at imprisonment for a term of ten years. His motion for new trial was overruled and he was sentenced in accordance with the verdict.
The defendant was represented in the trial court as well as here by counsel of his own choice. He raises two principal issues on appeal. First he contends that the court erred in refusing to sustain his motion for a judgment of acquittal because the state failed to prove either a criminal act or the criminal agency of the defendant. The other complaint is that the trial court committed prejudicial error in requiring a witness to testify in violation of her claim of self-incrimination and in ordering her to be taken into custody for refusal to testify.
Circumstantial evidence is sufficient to support a conviction of homicide. State v. Meidle, Mo., 202 S.W.2d 79, 81. In determining the sufficiency of the evidence to make a submissible case, it must be viewed in the light most favorable to the state. State v. Davis, Mo., 367 S.W.2d 517, 519.
On March 5, 1962, an automobile ran against a drug store at 35th and Woodland in Kansas City, Missouri, breaking the front window; Clifton Fuquay staggered into the store, fell to the floor, and died almost immediately. An autopsy revealed that he had been shot. A .22 caliber bullet found lodged between the second and third cervical vertebra was the cause of his death. The bullet entered on the right side of his neck below the jawbone about three inches from the ear and 'ranged up in and back'. No gun was found on his person, in his automobile, or in the vicinity of the casualty. Under the evidence the jury could reasonably find that the death of Clifton Fuquay was the result of a criminal act. State v. Meidle, Mo., 202 S.W.2d 79, 81; State v. Campbell, 301 Mo. 618, 257 S.W. 131, 132; State v. Hall, Mo., 231 S.W. 1001, 1004.
The criminal agency of the defendant was also sufficiently proved. For about six months prior to the episode in question, the defendant, aged 27, and Mrs. Sharon Gunter, also known as Sharon Pollard, aged 24, had been living together at 2623 Bales in Kansas City although they were not married to each other. During the evening of March 4, 1962, the defendant and Mrs. Gunter were together in a cafe known as the Cubby Hole on Prospect, just south of 27th Street. While the defendant was out of the cafe for a short time, another colored man, later identified as Clifton Fuquay, talked to Mrs. Gunter and made an engagement to see her about an hour later at 2623 Bales. The defendant had seen them talking and when he returned Mrs. Gunter told him of the incident. Shortly thereafter the defendant and Mrs. Gunter went to the Bales address. When Fuquay arrived the defendant went into the kitchen; Mrs. Gunter answered the door and let the caller in. Fuquay inquired if they were alone and when he learned the defendant was in the apartment, he declined to complete his mission. Mrs. Gunter then gave Fuquay her grandmother's telephone number so they 'could get together some other time' and Fuquay left. The next morning as the defendant was leaving the house to seek employment driving a taxi cab, Fuquay drove by, picked up the defendant, and took him to work. Shortly thereafter Fuquay returned to 2623 Bales. Mrs. Gunter was still in bed and when she did not respond to his knocking, Fuquay broke in the front door. He offered her money but she was frightened by his conduct, and when she asked him to leave he slapped her, called her 'a white bitch', tore her robe, and forced her to have intercourse with him. The defendant returned a few minutes after Fuquay left and Mrs. Gunter told him what had happened excepting the act of intercourse. Shortly before noon Mrs. Gunter went to her grandmother's home and the defendant went to the Cubby Hole.
At about 7:30 that evening the defendant saw Fuquay sitting in his parked car near the home of Mrs. Gunter's grandmother; he told Fuquay he wanted to talk to him. The defendant got into the automobile with Fuquay and while they were riding about an altercation occurred which resulted in Fuquay being shot. The defendant jumped from the moving car before it crashed into the front of the drug store where Fuquay died. According to the state's evidence, the defendant denied knowing anything about Fuquay or the manner of his death when he was arrested on March 12, 1962, more than a month after the happening. The police officers then confronted the defendant with Mrs. Gunter who had made a statement to the police, after which the defendant talked to the police officers about the killing of Fuquay but did not give them a written statement. In substance the defendant told the police officers that when he got in Fuquay's car he had in his belt a .22 caliber gun belonging to his brother Melvin; that during the talk about Mrs. Gunter the defendant reached for his gun, Fuguay slapped at him, and when the defendant pulled his gun Fuquay grabbed his arm, the gun went off, Fuquay fell back against the seat, and the defendant jumped from the car. The defendant's brother Melvin testified that his .22 caliber revolver was missing and that the defendant told him that he had taken the gun from Melvin's dresser drawer two or three weeks before the shooting. The defendant admitted that later in the night of March 5, 1962, in the company of his brother Lonnie, Mrs. Gunter, and Wanda Teagarden, he disposed of the weapon which fired the shot that killed Fuquay by throwing it into the Blue River from the bridge on Highway 40. He testified, however, that he had no gun when he got into Fuquay's car; that he tried to get Fuquay to apologize to Mrs. Gunter for what he had done; that while they were fighting in the car, Fuquay pulled a gun which he held in his right hand; that the defendant grabbed Fuquay's right arm and hand, turned the gun toward Fuquay, and the gun was discharged; that the defendant picked up the gun and jumped from the moving car before it crashed into the drug store. The state's version of the shooting was amply corroborated. The evidence was clearly sufficient to prove the defendant's criminal agency.
We have examined the cases cited by the defendant and find them to be entirely consistent with the conclusions we have reached with respect to the first point on this appeal. The defendant is mistaken in his contention that the only evidence of what happened at the time of the shooting was his testimony and that it tends to prove the shooting was accidental. It was for the jury to believe or disbelieve the defendant's evidence tending to exculpate him. State v. Tourville, Mo., 295 S.W.2d 1, 5. The trial court did not err in refusing to direct a verdict of acquittal.
The defendant's final contention is that the court erred in failing to sustain the defendant's motion for a mistrial when Mrs. Sharon Gunter, on the stand as a state's witness, refused to answer certain questions on the ground of self-incrimination, and the court in the presence of the jury directed the sheriff to arrest the witness and stated in a loud voice, 'This is not the grand jury.' The statement of the point further asserts that the action of the court was particularly prejudicial 'considering the sordid relationship of this witness and the defendant, without according the witness the right to have the court interrogate her to ascertain what answers were incriminating.'
Mrs. Sharon Gunter was the second of ten witnesses called by the state. She testified that the defendant was her 'boy friend' with whom she was living on March 5, 1962. When asked if she was acquainted with one Clifton Fuquay, she refused to answer the question on the ground that it would tend to...
To continue reading
Request your trial
-
State v. Cook, 53909
...an abuse of discretion and thereby deprived the defendant of a fair trial, prejudicial error has not been demonstrated. State v. Ross, Mo., 371 S.W.2d 224, 228(6); State v. Brotherton, Mo., 266 S.W.2d 712, 716--717(7); Woodring v. United States, 8 Cir., 311 F.2d 417, 420(1--2), cert. den. 3......
-
State v. Williams
...met the test set forth in State v. Haynes, supra. State v. Kukovich, Mo., 380 S.W.2d 324; State v. Curry, Mo., 372 S.W.2d 1; State v. Ross, Mo., 371 S.W.2d 224; State v. Richardson, Mo., 364 S.W.2d 552; State v. McNew, Mo., 353 S.W.2d 571; State v. Brookshire, Mo., 353 S.W.2d 681; State v. ......
-
State v. Phillips
...to grant the witness his constitutional immunity, appellant has no ground for complaint unless his own rights were violated. State v. Ross, 371 S.W.2d 224 (Mo.1963); State v. Foster, 349 S.W.2d 922 (Mo.1961). Therefore, appellant cannot object to the court having directed Chris Brownfield t......
-
State v. Tash
...394 S.W.2d 285 (Mo.1965). Third, the judge may discipline or correct a lawyer or witness in a non-prejudicial manner. State v. Ross, 371 S.W.2d 224, 228 (Mo.1963); State v. Brotherton, 266 S.W.2d 712 (Mo.1954). In these contexts, whether there was prejudice depends on the presence or absenc......