State v. Shoemaker

• Citation: 183 S.W. 322
• Decision Date: 15 February 1916
• Docket Number: No. 19018.,19018.
• Parties: STATE v. SHOEMAKER.
• Court: United States State Supreme Court of Missouri

183 S.W. 322

STATE v. SHOEMAKER.

No. 19018.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Bertha Shoemaker was convicted of manslaughter in the third degree, and she appeals. Affirmed.

Geo. F. Birmingham, of Kansas City, for appellant. John T. Barker, Atty. Gen. (Kenneth C. Sears, of Jefferson City, of counsel), for the State.

WALKER, J.

The appellant was charged, in an information filed in the circuit court of Jackson county, with murder in the second degree, in having shot and killed her husband on the 27th day of January, 1915. Upon a trial she was convicted of manslaughter in the third degree, and her punishment assessed at three years in the penitentiary, from which judgment she appeals.

Appellant was the only eyewitness to the homicide. About 7 o'clock on the evening it occurred, a woman named Murphy and her son, who lived in a portion of a double house the other portion of which was occupied by appellant and her husband, saw the latter coming home, and, finding his wife away and the door locked, he borrowed a key from Mrs. Murphy and entered his apartments. A short time thereafter appellant returned and was heard to say to her husband, "What in the devil are you doing here?" The quarrel — if it can be said to have been a quarrel, because no words were heard except those used by appellant — seemed, judging by the tone of her voice, to become more aggravated as she continued, and she was heard to profanely threaten that "she would cut his head off." A short time elapsed thereafter in which no words were heard, but the parties seemed to be scuffling, when she was heard to say, "You come over here you s____ of a b____ and put your hand in this water." Following this exclamation, a shot was heard, and Mrs. Murphy and her son rushed into the room. They found the deceased lying on the floor between the door and a stove. The furniture of the room was in order. They saw no weapon upon the deceased or elsewhere; they placed him on the bed, and he died a few minutes thereafter from a bullet wound which had entered under his right arm, and, penetrating both lungs and the heart, had lodged near the left nipple. Mrs. Murphy was greatly excited when she entered the room, and was not certain where she first saw the appellant, but thinks the latter was in the dining room, wrapping up her hand. The first thing the appellant said was that she had shot her husband. Murphy, the son, testified that when he first saw appellant she was coming from the back part of the house and she declared she had killed him, and asked witness to go and get a doctor. Nothing was said by the appellant about the deceased attacking her. The son further testified that appellant had a cut on her finger, and the deceased one on his wrist. After the deceased had been placed on the bed, appellant knelt by his side and said she was sorry. The cause leading to this homicide is readily determined from the testimony of neighbors, to the effect that it was the custom of appellant to have frequent male visitors during her husband's absence. During the quarrels between the appellant and the deceased he often accused her of this delinquency, and she violently asserted that it was none of his business, and that she would cut his heart out, or words of like import. Aside from character witnesses, only the appellant testified in her own behalf. Her account of the tragedy, without employing her verbiage, is that when she returned from purchasing a loaf of bread she found the deceased in the house, and without cause he slapped her in the face and knocked her down. Following this, she says she requested him to get up that she might make the bed. He got up and went into the kitchen, with the threat that he would cut her throat. He got a butcher knife, and she tried to take it away from him, and in so doing cut two of her fingers. She did not know how he cut himself. She put her hand into a pan of water and told him to do likewise, when he ran into the front room, put the butcher knife into a stove, and grabbed a poker. She begged him to put the poker down; she took a revolver she had brought from the kitchen a while before, and as deceased tried to hit her with the poker, she warned him that if he did, she would shoot him. That he drew up the poker, when she shot, not with the intention of killing him, but to scare him. That she would not have killed him for the world. The poker referred to was found three feet or more from the body of the deceased, lying on the zinc under the stove.

I. Motion for New Trial.—The generality of the errors attempted to be preserved in the motion for a new trial is such as not to demand a review by this court. Under the provisions of section 5285, R. S. 1909, a motion for a new trial is required to "set forth the grounds or causes therefor." So far as the testimony is concerned, if specific objections had been made thereto at the time it was offered, the general objections in the motion for a new trial would be deemed sufficient (Collier v. Lead Co., 208 Mo. loc. cit. 257, 106 S. W. 971; Norris v. Railroad, 239 Mo. loc. cit. 711, 144 S. W. 783; but the objections made during the trial were of the same general nature as those found in the motion, and the trial court's attention was not therefore properly directed to them in a manner to demand an intelligent ruling thereon and to require their consideration here. This disposes of many of the reasons now urged in the appellant's brief for a review of this case on account of errors claimed to have been committed in the admission of testimony. State v. McBrien, 265 Mo. 594, 178 S. W. 489. We will notice in their order such assignments of error, if any, as are entitled to review on account of specific objections having been made thereto.

II. Testimony. — The general objection made to the admission of testimony to show the frequency of the visits of other men to appellant during the husband's absence would authorize us in declining to consider same. State v. Sherman, 264 Mo. loc. cit. 380, 175 S. W. 73. However, had the objection been specific, the admission of the testimony would not have been error, especially in this case, where its introduction had...