State v. Ryland

• Decision Date: 19 February 1930
• Docket Number: No. 29967.,29967.
• Citation: 25 S.W.2d 109
• Parties: THE STATE v. RICHARD F. RYLAND, Appellant.
• Court: Missouri Supreme Court

25 S.W.2d 109

THE STATE v. RICHARD F. RYLAND, Appellant.

No. 29967.

Supreme Court of Missouri, Division Two.

February 19, 1930.

Appeal from Jackson Circuit Court. — Hon. Ben Terte, Judge.

AFFIRMED.

Russell Garnett, H.C. Waltner and Rodman L. Henry for appellant.

(1) The trial court erred in permitting the prosecuting attorney to exhibit to the jury, and brandish before them, the pistol with which defendant shot deceased, and, while doing so, to conduct a long examination of the witness, Officer Speise, as to the caliber of the gun, the number of chambers it contained, and the number of shells, empty and loaded, found in it, etc., after defendant had given the prosecuting attorney's office a statement on the day of the shooting in which he admitted having killed deceased, and had publicly admitted the killing at the trial, pleaded self-defense, and stated that there was no issue as to the shooting. State v. Porter, 276 Mo. 396; State v. Creed, 252 S.W. 681; State v. Pearson, 270 S.W. 351. (2) The State is limited in its cross-examination of the witness, Justice Marion D. Waltner, relative to the writ of execution defendant was attempting to serve at the time of the shooting, to the single proposition of whether the writ was regular on its face. The examination of the justice as to how and when he was appointed, and the term of his office, his territorial jurisdiction, whether he was a fee justice or salaried, and the amount of fees taxed in the case and that the State got none of the fees accruing to his office, and where, how and when he kept the records of his office was wholly irrelevant and immaterial and highly prejudicial. The sole and only duty imposed upon the defendant, as deputy constable, before executing the writ, was to ascertain whether the issuing court had jurisdiction of the subject-matter of the action and the writ was regular on its face. Owls Nest v. Evans, 189 Mo. App. 433; State ex rel. v. Cameron, 273 S.W. 746; State ex rel. v. Rainey, 99 Mo. App. 218. (3) Instruction 4 was error. It did not properly define manslaughter, nor did it define excusable homicide. Nor did it take into consideration the undisputed evidence that defendant was an officer of the law charged with the duty of enforcing the keeping of the peace. It entirely excluded and ignored this issue. State v. Peters, 242 S.W. 894; State v. Dierberger, 96 Mo. 666; State v. Fuller, 96 Mo. 165; R.S. 1919, Secs. 3233, 3236.

Stratton Shartel, Attorney-General, and Henry Depping, Assistant Attorney-General, for respondent.

(1) Even if there was no case made upon manslaughter, defendant is not in a position to complain because the jury did not convict him of one of the higher grades of homicide. Any person found guilty of manslaughter shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide. Sec. 3692, R.S. 1919; State v. Davis, 12 S.W. (2d) 428; State v. Todd, 194 Mo. 377; State v. Riddle, 179 Mo. 298; State v. Lewis, 248 Mo. 504; State v. Whitsett, 232 Mo. 511; State v. West, 202 Mo. 128. (2) Instruction 4 properly defines manslaughter and has been approved by this court in practically the same language. State v. Gore, 237 S.W. 996. Appellant complains of Instruction 4 because it omitted the words "procurement as culpable negligence" found in Sec. 3236, R.S. 1919. It would have been error to include these words, since the act was appellant's own act, and there was neither "procurement" nor "culpable negligence." (3) The court committed no error in permitting the State to introduce in evidence the gun used upon deceased at the time of the shooting. State v. Cooper, 259 S.W. 435. (4) In his motion for a new trial appellant complains because witness Waltner was cross-examined by the prosecuting attorney as to the amount of costs appearing on the back of the execution, which was offered in evidence by the defendant. This was proper cross-examination. The execution was put in evidence by defendant, and it appeared that defendant got a certain part of the costs for his fees. This tended to show defendant's reason for going to deceased's home. The scope and extent of cross-examination of a witness is a matter largely in the discretion of the trial court. State v. Harp, 306 Mo. 428. The subject-matter of the cross-examination had been introduced by defendant on direct examination and therefore it was the proper subject of cross-examination. State v. Ellis, 234 S.W. 845. This cross-examination merely brought out the fact that defendant received pay for his services. How could this have prejudiced him? No criminal case should be reversed unless it is evident that error has been committed prejudicial to the rights of the defendant. State v. Williams, 274 S.W. 53.

BLAIR, P.J.

Tried for murder, defendant was convicted of manslaughter and sentenced to imprisonment in the State penitentiary for a term of five years for the killing of Joseph Weber at Kansas City on December 14, 1927, and has appealed.

The testimony of deceased's son Karl Weber so clearly made a case for the jury that we think it unnecessary to detail the evidence at any great length. Karl and his deceased father lived at 5309 Forest Avenue in Kansas City. Karl was twenty-four years old and deceased was fifty-seven. Karl's mother died twenty-two years previously. At the age of nine Karl became a cripple. In the basement of the Weber home, a printing shop and advertising business were carried on by Karl; but he claimed that the business belonged to his father.

Appellant was a deputy constable, and went to the Weber home in company with two attorneys named Vance and Jenkins to levy on the stock and machinery of the printing establishment under an execution issued out of the justice of the peace court upon a judgment rendered against Karl for repairing an automobile. When these three men reached the Weber basement shop and announced their purpose, Karl called to the deceased and he came down from the house into the shop. Deceased denied the right of the appellant to levy on the property to pay Karl's debt, asserting that the property belonged to him.

According to Karl's testimony, Vance took hold of some of the material in order to take it under the writ, and deceased jerked it from him. Abusive language was used in connection with the assertions and denials of appellant's right to take the property. Finally appellant said: "Weber, I am going to shoot you." Deceased said, "Go ahead and shoot." Appellant then pointed his revolver at deceased and fired twice in rapid succession. Thereupon deceased rushed upon appellant and forced him down upon a bench. Attorney Jenkins jumped out of a window and attorney Vance went to a door and opened it. While deceased had appellant down on the bench, appellant struck at him with a blackjack. Appellant then got up and he and Vance ran out of the basement through the door. Deceased then picked up an ax and followed them around the house.

Karl found his father lying in the back yard near the garage door. He was unable to speak. Karl had previously summoned the police. The officers and an ambulance arrived quickly and removed the deceased to the General Hospital. He lived only about fifteen minutes. The coroner's report and his subsequent testimony showed that the bullet entered deceased's body between the fourth and fifth ribs on his left side and passed through the lower lobe of the left lung, lodging between the tenth and eleventh ribs on the left side near the spine. This wound was the cause of death.

The evidence offered by appellant tended to prove that he was justified in firing the fatal shot in self-defense. Vance testified concerning the purpose of the visit of the three men and concerning the dispute over the right to levy on the printing plant, and then said that he was ready to leave the basement when he heard Jenkins call for help. He then saw deceased going after Jenkins with an ax. Deceased struck at Jenkins and missed him, and Vance asked deceased to put the ax down and he did so. Vance then started to leave, and deceased struck him on the shoulder with the ax and knocked him down and continued striking him. He called upon appellant for help and heard appellant telling deceased to put the ax down. Then he heard a shot. He looked up and saw deceased advancing on appellant with the ax. He said appellant was down on the bench and deceased was over him attempting to strike him with the ax at the time appellant fired the second shot.

Jenkins testified that deceased attempted to hit him with the ax and threatened to kill all three of them. Appellant's testimony was quite similar to that of Vance. He claimed that the first shot was fired to scare deceased and that the second shot was fired to save his own life.

We have stated enough of the evidence to demonstrate that the State made a case for the jury. If the jury had accepted Karl Weber's testimony in its entirety, it would have been authorized to have found appellant guilty of murder. On the other hand, had the jury believed appellant and his witnesses, it should, and doubtless would, have found him not guilty on the ground of necessary self-defense.

Appellant seems to concede this much in his motion for new trial, but contends that, as the evidence offered on the part of the State tended to show that he was guilty of Murder: murder and as the evidence offered on the part of Self-Defense: appellant tended to show that he shot in Manslaughter. self-defense, the jury had no right to return a verdict of guilty of manslaughter, of which he contends there was no evidence. Section 3692, Revised Statutes 1919, settles this point contrary to appellant's contention. That section provides that a defendant found guilty of manslaughter by the jury shall be punished in accordance with the verdict, notwithstanding the evidence shows said defendant to be guilty of the graver crime of murder. [See...