State v. Smith

• Citation: 261 S.W.2d 50
• Decision Date: 14 September 1953
• Docket Number: No. 1,No. 43499,43499,1
• Parties: STATE v. SMITH
• Court: United States State Supreme Court of Missouri

Page 50

261 S.W.2d 50

STATE v. SMITH.

No. 43499.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

Oct. 12, 1953.

Morris A. Shenker, St. Louis, for appellant.

John M. Dalton, Atty. Gen., D. D. Guffey, Asst. Atty. Gen., for respondent.

CONKLING, Judge.

This case came to the writer upon reassignment. Portions of the previously prepared opinion are hereinafter used without quotation credit.

Defendant, John Henry Smith, has appealed from a judgment of conviction of murder in the second degree. He was sentenced upon the jury's verdict to 35 years' imprisonment in the state penitentiary.

On Thanksgiving Day, 1950, defendant shot and killed Mattie Bowen. Defendant lived one door south of deceased; the two flats apparently were in the same building but were separated by an areaway or gangway which extended from the front of the premises to the rear of the buildings. The State's evidence tended to show that deceased's daughter and some other children were throwing snowballs, ostensibly at Nancy Bowen's older brother. One of the snowballs struck defendant's front steps or door. Defendant's wife went to the door and told the children to stop throwing snowballs. Deceased then appeared and stood at or near defendant's front steps. An argument ensued between deceased and defendant's wife. Deceased turned away from the steps and was in the act of entering or had entered the gangway when defendant shot at deceased at least four times. Three of the bullets entered deceased's body, all from the left side. Two of them emerged on the right side--one from the right hip and one from the right buttock. The third bullet was removed from the right breast. Deceased was pronounced dead a short time later, from internal hemorrhage following gunshot wounds in the liver and in the right lung. When police officers arrived, defendant, who had re-entered his house, admitted he had shot deceased and produced the revolver, in the chamber of which were six spent shells. Defendant later signed a statement in which he admitted shooting deceased. Further details of the evidence, particularly defendant's own testimony, will be stated in connection with the several contentions.

Defendant contends that the evidence was insufficient to sustain the conviction for murder in the second degree. This contention, as we understand it, is twofold; first, that all the credible evidence in the case showed that defendant was acting in defense of his habitation, and that defendant had a sufficient provocation to make the killing only manslaughter as a matter of law. The court instructed on second degree murder and manslaughter. We shall assume, without deciding, that the rule in this state as to the necessity that a provocation to be sufficient to permit submission of guilt of manslaughter must involve personal violence, does not apply when a homicide is committed on provocation in the defense of property or habitation. See State v. Matthews, 148 Mo. 185, 49 S.W. 1085, 1087; State v. Bongard, 330 Mo. 805, 815, 51 S.W.2d 84, 89; State v. Biswell, 352 Mo. 698, 709, 179 S.W.2d 61, 66.

The fallacy of defendant's first contention is that all the credible evidence does not show that defendant was acting in defense of his habitation. On the contrary, as we have indicated, there was evidence that deceased was shot while she was walking away from defendant's front steps and entering the gangway. This contention of defendant is, in reality, based upon his next contention, viz., that because the State's evidence was furnished by three small girls, two of them seven and one of them ten at the time of the shooting, and because there were some inconsistencies in their testimony, and because, it is claimed, their testimony was in conflict with that of the coroner's physician and contrary to the physical facts, their testimony should be ignored in determining the submissibility of the case. There is no merit in either of these contentions. The ten-year-old girl, daughter of deceased, testified that the first shot was fired as her mother was entering the gangway and going away from the defendant. The other girls' testimony was not to the contrary. True, there were possible inconsistencies in their testimony, but these were for the jury in considering the weight to be given their respective statements.

The coroner's physician testified that there were three wounds of entry in the left side of deceased's body and two wounds of exit in the right side. There was evidence from which the jury could have found that deceased's position was such that the three bullets entered from the left side and that two of them emerged on the right side; and that the fatal shots caused through-and-through wounds of the lung and liver. This testimony was consistent with the State's evidence as to the relative positions of defendant and deceased at the time the shots were fired. The position of deceased, as testified to by her daughter, could well have been such that the shots would have entered her left side as deceased was entering the gangway. The record does not demonstrate that the State's evidence is 'not in accord with the physical facts,' and there is no demonstrated reason to ignore the testimony of the three girls who testified for the State in determining the submissibility of the case. We rule that the State's evidence was sufficient to sustain a conviction of second degree murder.

Defendant's contention that the trial court erred in admitting rebuttal testimony offered by the State makes necessary a review of defendant's testimony.

Defendant testified that he was seated in the kitchen when his daughter told him that a snowball had struck the glass in his front door; that he went to the front door and asked the children not to throw at the door. He returned to the kitchen but the snowballing against the door continued. Later, defendant's wife twice went to the door, and requested that the snowballing against the door be stopped; on the second such occasion defendant heard deceased, then proceeding from the rear of the buildings through the gangway toward the front of the premises, say she was going to 'kill all those G_____ d_____ Smiths.' (Defendant testified that deceased had made prior threats--two of these involved statements that deceased was going to kill defendant, and another involved the display of a gun under circumstances which defendant understood to be a threat.) Defendant remained in his kitchen and heard this conversation: deceased asked defendant's wife: 'What the devil you asked my children about throwing snowballs?' Defendant's wife answered: 'Here she just throwed the ball.' Deceased replied, 'You are just a G_____ d_____ liar. * * * You come out here, I will whip you. I will kill every G_____ d_____ one of you.' Upon hearing this last statement, defendant jumped up, rushed from the kitchen to the middle room of his home, took a revolver from a trunk, rushed to the front door, and saw deceased coming up the steps toward his wife and daughter, who was standing immediately behind his wife. Defendant said he did not remember just what then happened; he did not remember firing the gun.

On cross-examination of defendant, the State developed that defendant remembered obtaining the gun from the trunk in the middle room; remembered that his 25-year-old son was then in bed in that middle room; remembered that he took the revolver from the trunk with his right hand and carried it in his right hand; remembered that the front door was wide open and that his wife was standing at the right or south side of the open door and that his daughter was right behind his wife; remembered that he saw deceased when he was about three feet from the door; remembered that deceased was coming up the south side of the steps, to his right; remembered that, and demonstrated to the jury how, he held the revolver in his right hand; remembered that his left hand was down at his side.

The State's cross-examination continued:

'Don't you remember--don't you remember pulling the trigger on this pistol? A. No.

'Q. You don't. Do you remember how much force it takes to pull that trigger? Would you pull that trigger? A. What's that?

'Q. Would you pull the trigger of that pistol to see how much force it takes? A. (Indicating).

'Q. It takes some force to do that, doesn't it? Don't you remember pulling that trigger six times? A. No.

'Q. Don't you remember hearing six shots fired? A. No.

'Q. Don't you remember seeing the bullets strike into her body? A. No, I did not. * * *

'Q. And you don't know, you don't even know if you fired the pistol? A. No 'Q. Do you think somebody else fired it? A. Well, I must have fired it. I had it--I guess.

'Q. You must have fired it, but you didn't hear any of the shots? You don't remember pulling that trigger six times in rapid succession? A. No. * * *

'Q. Don't remember seeing the bullets hit the woman? A. No. * * *

'Q. But you don't remember anything about pulling that trigger six times and shooting? A. No. I ran up to the house too excited to remember anything about that.

'Q. You just don't remember? A. No.'

The State further developed by cross-examination that, immediately after the firing, defendant remembered replacing the revolver in the trunk in the middle room and at that time remembered seeing his son sitting up in bed; remembered that the police arrested him shortly thereafter; remembered that he produced the revolver for the police and that a police officer took him to the gangway where he saw deceased.

The effect of the defendant's testimony is this: while defendant remembered in some detail his acts in the sequence of acts immediately preceding and subsequent to the shooting, and admitted that he must have fired the gun, he did not remember the actual act of firing or pulling the trigger for the stated reason that he was too excited to remember it.

The State in...