State v. Shilkett

• Citation: 204 S.W.2d 920,356 Mo. 1081
• Decision Date: 13 October 1947
• Docket Number: 40454
• Parties: State v. Charles W. Shilkett, Appellant
• Court: Missouri Supreme Court

204 S.W.2d 920

356 Mo. 1081

State v. Charles W. Shilkett, Appellant

No. 40454

Supreme Court of Missouri

October 13, 1947

Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.

Affirmed.

John L. Sullivan and Agnes Riley Sullivan for appellant.

(1) Proof of separate and isolated acts and crimes distinct from the one charged in the indicment is inadmissible. State v. Sundheimer, 6 S.W.2d 52; State v. Buxton, 22 S.W.2d 635; State v. Malone, 39 S.W.2d 786; State v. Minor, 92 S.W. 446; State v Maddox, 98 S.W.2d 535. (2) Limiting the cross-examination of the state's witness is error. State v. Murray, 292 S.W. 434; State v Davis, 225 S.W. 707. (3) Cross-examination of defendant beyond the scope of the direct examination is error. State v. Swearengin, 190 S.W. 270; State v Kelly, 284 S.W. 801. (4) Court committed reversible error in not properly instructing the jury. State v. Aitkins, 179 S.W.2d 84; State v. Crowley, 139 S.W.2d 473; State v. Lockwood, 119 Mo. 463; Hill v. State, 11 N.E.2d 141. (5) The court erred in failing to give instructions offered by defendant. (6) The court erred in permitting state's improper argument that defendant had not called witnesses Crabtree and Nichols, who had been endorsed by the state. State v. Beasley, 182 S.W.2d 541. (7) For the court to permit State's Attorney to ask jurors in closing argument to consider whether Berger had children in his home, when defendant's pistol was pointed at Berger's house, was reversible error. State v. Dixon, 253 S.W. 746.

J. E. Taylor, Attorney General, and Arthur M. O'Keefe, Assistant Attorney General, for respondent.

(1) Evidence of other crimes admissible to negative mistake or accident. State v. Craft, 344 Mo. 269, 126 S.W.2d 177; State v. Leonard, 182 S.W.2d 548; State v. Spray, 174 Mo. 569, 74 S.W. 846; State v. Spinks, 344 Mo. 105, 125 S.W.2d 60; State v. Garrison, 342 Mo. 453, 116 S.W.2d 23; State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; State v. Bersch, 276 Mo. 397, 207 S.W. 809; State v. Nolan, 192 S.W.2d 1016. (2) The court's limiting of cross-examination of State's witness Mottert not error. 70 C.J., p. 814, sec. 1021; State v. Hersh, 296 S.W. 433; State v. Murray, 316 Mo. 31, 292 S.W. 434; State v. Davis, 284 Mo. 695, 225 S.W. 707; State v. Murrell, (Mo.), 169 S.W.2d 409; State v. Douglas, 312 Mo. 373, 278 S.W. 1016. (3) Cross-examination of the defendant was not beyond the scope of the direct examination. Sec. 4081, R.S. 1939; State v. Jackson, 340 Mo. 748, 102 S.W.2d 612; State v. Wilson, 321 Mo. 565, 12 S.W.2d 445; State v. Glazebrook, 242 S.W.2d 928; State v. Northington, 268 S.W. 57; State v. Wicker, 222 S.W. 1014; State v. Pierson, 331 Mo. 636, 56 S.W.2d 120. (4) Court will consider error in instruction only if stated in motion for new trial. State v. Pippey, 335 Mo. 121, 71 S.W.2d 719; State v. Enochs, 339 Mo. 953, 98 S.W.2d 685. (5) Instruction 5 when read in connection with Instruction 4 correctly states the law. State v. Smith, 194 S.W.2d 905; State v. Talbert, 189 S.W.2d 555. (6) The general assignments of error in motion for new trial present nothing for review. Sec. 4125, R.S. 1939; State v. January, 353 Mo. 324, 182 S.W.2d 323; State v. Bennett, 87 S.W.2d 159. (7) State's argument that defendant had not called certain witnesses was in answer to defendant's argument and was proper. State v. Beasley, 353 Mo. 392, 182 S.W.2d 541. (8) The State's argument as to whether defendant considered children of person assailed not improper. State v. Londe, 345 Mo. 185, 132 S.W.2d 501; State v. Reagan, 108 S.W.2d 391.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Defendant was indicted and convicted of manslaughter and his punishment fixed at two years imprisonment in the state penitentiary. He has appealed.

About 7:45 a.m., August 14, 1945, a taxicab arrived at Westwood Stables on Ballas road in St. Louis county, and stopped near the main entrance on the south side. Appellant, a passenger in the taxicab, got out and entered the stables. A short distance inside of the main entrance one William Mottert, an employee, was seated on a trunk. He was facing east, smoking a corncob pipe and talking to Logan McDaniels, another employee. McDaniels was standing east of and facing Mottert, when appellant entered. Mottert and McDaniels did not know appellant and had not seen him before. Without speaking to Mottert, appellant walked up to him, jerked the pipe out of his mouth and said that if he ever caught him smoking a corncob pipe again he would kick him. When appellant reached out to return the pipe, Mottert observed a pistol in appellant's pocket and said, "You have a gun. Are you permitted to carry one?" Appellant answered, "Yes", showed him a police badge and reached in his hip pocket and drew out the gun saying, "And its loaded too." Appellant unbreached the gun and the shells fell out, five fell on the floor and one in the cuff of Mottert's trousers. Mottert and McDaniels helped appellant pick up the shells. Appellant reloaded the gun and stood facing Mottert, and then turned toward McDaniels and shot him in the stomach. McDaniels walked four or five feet and fell. He was taken to the St. Louis County Hospital where he subsequently died. There had been no argument or conversation between appellant and McDaniels. After the shooting appellant laid the gun on the trunk and said: "Oh, my God, I shot him, but I didn't mean to do it. I am sorry."

Other evidence further tended to show that around 7 a.m., August 14, 1945, the taxicab had been called to a house in Kirkwood, and that appellant came out, got in the cab and directed the driver, a woman, to drive him to the residence of a Mr. Berger on Countryside Lane. Appellant then directed the driver to go to the door and tell Mr. Berger that appellant wanted to see him. Appellant remained in the cab in front of the house while the driver went to the door and rang the door bell. She heard someone upstairs say, "Call the sheriff's office," and she went back to the cab and told appellant they were calling the sheriff. Appellant said, "Let's go." Before the cab had arrived at Berger's home, appellant had been loading or unloading his gun and, when the driver returned to the cab, appellant had the gun in his hand and it was pointed toward the door of the Berger home. Appellant was then driven, at his direction, to a stable on Countryside Lane. When he arrived there, he went into the place taking his gun with him, and while he was in there the taxicab driver heard a shot fired, some people came out and appellant returned, entered the cab and directed that he be driven out on Ballas Road to Westwood Stables.

Another witness, Blankemeier, testified that about 6:45 a.m., on August 14, 1945, appellant was standing on the lawn of one Louis Rozier in Kirkwood when the witness drove into a driveway nearby. Blankemeier saw appellant, heard him calling to Rozier and asked appellant not to make so much noise. Appellant walked across two lawns and came up to Blankemeier's automobile and said, "What are you trying to do, get tough?" Appellant pulled out a gun and the witness asked, "What are you going to do with that?" Appellant said, "I will show you", and pointed the gun at an oak tree in witness' front yard and shot at the tree. There was also evidence that at about 7 o'clock a.m., on the morning of August 14, 1945, when state's witness Watkins was making a delivery of feed at the Otis Brown stables on Countryside Lane, he saw appellant come to the stables in a taxicab driven by a woman driver. When the taxicab pulled up in front of the stables, appellant got out and came in hollering for Otis Brown. When he got to Otis Brown, he grabbed him and started wrestling with him, and then turned and shot. The bullet hit in the dirt floor about a foot from the witness' feet. Appellant asked witness if he didn't like it, slapped him and asked what he was going to do about it.

Appellant in his own behalf testified that he was Claims Manager for the Kroger Company and resided in Webster Groves, Missouri, with his wife and two children. He visited Westwood Stables about 7:45 a.m., on August 14, 1945, to talk to Mrs. Crabtree about bringing his horse there to be trained. When he got out of the taxicab, he called "Helen" two or three times, and Mrs. Crabtree came to the window of her living quarters and said she would be down in a minute. Appellant entered the building and saw Mottert seated on the trunk, smoking his pipe. Appellant did not know Mottert, but thought he looked like "Popeye" and was a grouchy old man. To have some fun appellant grabbed his pipe and then handed it back to him. Mottert asked to see appellant's gun and asked if appellant had a permit to carry it. Appellant took the gun from his hip pocket and showed it to Mottert and showed him a police badge from Webster Groves. Appellant "broke" the gun and, when he flipped it open, the cartridges fell out. Appellant told Mottert he would show him how to load it. Mottert picked up one cartridge and handed it to appellant. Appellant "put the bullet down in one of the bottom chambers . . . where the hammer wouldn't hit it and flipped it and pulled the trigger and shot this colored man." Appellant also testified, "I took the bullet and put it in one of the lower holes and pulled the trigger, flipped it away somewhat to my right." Appellant said he did not see McDaniel until after he had fired the gun.

Appellant complains of the admission of the evidence concerning his conduct on the morning of August 14, 1945, preceding his arrival at Westwood Stables. The complaint is based upon the ground that the evidence tended to show "separate and isolated acts and crimes distinct from...