State v. Shriver
| Decision Date | 14 February 1955 |
| Docket Number | No. 44316,No. 1,44316,1 |
| Citation | 275 S.W.2d 304 |
| Parties | STATE of Missouri, Respondent, v. Samuel Dean SHRIVER, Apellant |
| Court | Missouri Supreme Court |
R. B. Kirwan, Kansas City, for appellant.
John M. Dalton, Atty. Gen., Paul McGhee, Asst. Atty. Gen., for respondent.
Defendant was convicted of murder in the second degree and sentenced to ten years' imprisonment in the state penitentiary. See Sections 559.020 and 559.030 RSMo 1949, V.A.M.S.
The information charged that defendant, on June 9, 1953, at the County of Jackson and State of Missouri 'feloniously, wilfully, premeditatedly, on purpose and of his malice aforethought, did kill and murder * * *' Marie Cecelia Shriver, who was his wife, by striking and beating her with his fists and feet. By omitting the word 'deliberately' the information properly charged murder in the second degree. Section 559.020, supra; State v. Felder, Mo.Sup., 242 S.W.2d 535, 536; State v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 711. While defendant has filed a full transcript on appeal, Supreme Court Rule 28.08, 42 V.A.M.S., he has not favored us with a brief. We must, therefore, look to defendant's motion for a new trial for the errors complained of. Supreme Court Rule 28.02. And see Section 547.270 RSMo 1949, V.A.M.S.; State v. Tillett, Mo.Sup., 233 S.W.2d 690, 691; State v. Ready, Mo.Sup., 251 S.W.2d 680, 681. Our examination of errors assigned in the motion for a new trial, however, is limited to those assignments which meet the requirements of Supreme Court Rule 27.20. And see Section 547.030 RSMo 1949, V.A.M.S., which was superseded by Supreme Court Rule 27.20 on January 1, 1953.
It is first contended that the state failed to produce substantial evidence to sustain the verdict and establish defendant's participation in the alleged crime. In determining the sufficiency of the evidence to support the verdict of 'guilty of murder in the second degree as charged in the information,' we must consider the evidence favorable to the state, together with such favorable inferences as may be reasonably drawn therefrom. Evidence to the contrary must be rejected. State v. Harmon, Mo.Sup., 243 S.W.2d 326, 331; State v. Ready, supra, 251 S.W.2d 680, 682.
The evidence favorable to the state tended to show that defendant and his wife, Marie, hereinafter referred to as the deceased, resided in a one room basement apartment in a residential building located at 3334 Harrison street in Kansas City, Missouri. The room contained a stove, a dresser, a bed, a cedar chest, a table and several chairs. About 3:30 a. m., on June 9, 1953, police officers were called and found the deceased in her night clothes lying on the bed in this apartment. She had been dead for several hours, her body was cold and 'a bit stiff.' Both of her eyes were swollen shut and there were bruises over her entire body as though she had been beaten. The bruises about her head, face, arms, chest and stomach were severe and there was a trickle of blood from her eyes and from her mouth. Her clothes were disorderly and at least one-third of her body was black and blue.
Defendant came into the apartment while the officers were there and said that the deceased was his wife and that he had awakened in the night and found that her body was cold. He got up and called an ambulance and then went over to his daughter's house and had just returned. Defendant had been drinking and his hands and knuckles were skinned up. Defendant further told the officers that he and the deceased and a Mr. Zumwalt, who had been working for him and who had been sleeping on a cot in the basement of the house, had gone to the residence of defendant's former first wife to take her some money, but she was not at home, and while he was looking for her, the deceased and Zumwalt had left defendant and returned home and he had had to get a taxicab to return. He said that when he stepped into the apartment, deceased was on the floor just inside the door; and that he had picked her up and put her on the bed and had then gone to bed himself.
In a written statement taken after his arrest, the defendant said that, when he returned from work at 5:30 p. m., on June 8th he found his wife in an intoxicated condition; that she had continued drinking until about 8 o'clock when a trip was made to take some money to his former wife; that before leaving on this trip his wife had gotten very angry and had made some nasty remarks about his taking money to his children and he had slapped her backhanded and told her to shut up; that his wife and Zumwalt had accompanied him on the trip in Zumwalt's car and they had driven off and left him while he was trying to find his former wife; that, after he returned by taxi to his apartment, Zumwalt came walking out of the apartment and he chased him away with a hammer; that he later located his wife in the 'T.V. room' of his landlord's apartment upstairs and went in after her and told her to go downstairs where she belonged; that she was so drunk she could hardly walk so he slapped her to get her downstairs; that he had almost had to carry her and, when he did get her downstairs, she got very abusive and started getting rough so he hit her to quiet her down; that she fell over backwards, striking the back of her head on the corner of the cedar chest; that, when her daughter arrived with a boy friend, he asked them to help him put her on the bed, but her daughter said to just let her lie there; that he tried to pick her up and put her on the bed but, due to her limber condition, he dropped her twice before he could get her on the bed; that she woke up at 11:00 o'clock and blood was running out of the corner of her mouth and he wiped it off with kleenex; and that at 3:00 o'clock he had found her cold and apparently dead and he notified her daughter and called the police and an ambulance.
Rita Long, a daughter of the deceased, testified that she visited defendant's apartment on the evening of June 8, 1953, about 9:30 p. m., and saw the deceased on the floor of the apartment near the door and in front of the dresser. She did not look at her mother too closely, but saw that 'her clothes were all pulled up.' She assumed that her mother had been drinking and she told defendant, who was present, to take care of her and put her to bed. About 3:00 a. m. the following morning defendant notified her that he thought her mother was dead.
Joseph B. Long, defendant's landlord, who resided on the second floor of the residence building, testified that on the evening of June 8, 1953, between 9 and 10 p. m., he, his wife and others were sitting out on the porch and he 'heard some noise out in front,' he thought it was defendant's voice and he looked and saw defendant out there telling Zumwalt 'to get on out of here or he would kill him.' Defendant followed Zumwalt up the driveway and then returned after Zumwalt drove away. Defendant asked if deceased was there and, on being advised that she was not, he went in the basement and then came back out and went around the house, then back and up on the porch and into the house where defendant located deceased in the front room of the second floor. The witness saw defendant take hold of deceased and shake her and tell her to get on down there where she belonged.
Dr. Hugh H. Owens, County Coroner of Jackson County performed an autopsy upon the body of deceased and signed the certificate of death showing the cause of death as 'shock and hemorrhage due to ruptured liver and lacrated mesentery' (the latter being the tissue that holds the large and small intestines to the posterior wall of the abdomen) and multiple contusions of the head and body. The autopsy findings showed that deceased was about forty years old, five feet two inches in height and weighed about 140 pounds. Other findings were as follows: a swollen and discolored face; both eyes swollen shut; a large area of ecchymosis (bruising) on the left hip, right tibia or shin bone, left shoulder, arms and almost over the entire abdomen from the breast bone down to the pelvis bone, a large amount of free fluid in the abdomen, as two inch rupture of the liver (like it was mashed or bruised), the mesentery lacerated in three places, a blood clot behind the peritoneum (which is the covering of the abdominal cavity), blood in the walls of the abdomen and in the abdominal cavity, a laceration of the skull behind the right ear but no fracture and a large amount of blood beneath the scalp. The discoloration of the body was not the result of rigor mortis. The liver ruptures had been due to a blow or trauma of some kind.
Defendant testified in his own behalf that, on June 8, 1953, he and deceased had argued about the payment of alimony to his former wife; and that he had taken her by the shoulders and set her down and told her to shut up. He also reviewed the facts, as hereinbefore stated, with reference to his trip with deceased and Zumwalt and as to his return by taxicab. He said that, when he returned, he entered the basement by a rear door; that there was a light in the basement, but none was in his apartment; that, when he slammed the outside door, Zumwalt came out of his apartment; that, as he did so, he (defendant) saw deceased in the apartment either sitting or leaning in the apartment either sitting or leaning against the bed on the floor; that, when Zumwalt saw him, he started running and defendant asked what was going on and started after Zumwalt; that when Zumwalt reached the head of the stairs he turned and kicked defendant in the mouth and against the hot water heater in the basement; that defendant's lip was 'busted,' his hand 'banged up' and he was sore and bruised; that defendan...
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