State v. Stallings

• Decision Date: 28 October 1933
• Docket Number: No. 32801.,32801.
• Citation: 64 S.W.2d 643
• Parties: THE STATE v. L.C. STALLINGS, Appellant.
• Court: Missouri Supreme Court

64 S.W.2d 643

THE STATE v. L.C. STALLINGS, Appellant.

No. 32801.

Supreme Court of Missouri, Division 2.

October 28, 1933.

Appeal from Cape Girardeau Circuit Court. — Hon. Frank Kelly, Judge.

REVERSED AND REMANDED.

L.R. Jones and Russell L. Dearmont for appellant.

(1) The unintentional killing of a bystander by a random shot fired in self-defense is excusable. 30 C.J. 88; Johnson v. State, 288 S.W. 223; Caraway v. State, 263 S.W. 1063; Spanell v. State, 203 S.W. 357. (2) Instruction 7 is erroneous because there was no substantial evidence in the record to support it. There was no evidence "that Hagan had reasonable cause to believe and did believe that Stallings was about to inflict some great personal injury upon him." 16 C.J. 1043; State v. Green, 229 Mo. 642; State v. Rollins, 226 Mo. 524; State v. Clancy, 225 Mo. 654; State v. Elsey, 201 Mo. 561; State v. Bonner, 178 Mo. 424; State v. Weaver, 165 Mo. 1; State v. Obuchon, 159 Mo. 256; State v. Kauffman, 46 S.W. (2d) 843; State v. Henshon, 45 S.W. (2d) 60; State v. Painter, 44 S.W. (2d) 79. (a) Instruction 7 is further erroneous for the reason that it placed a double burden on defendant, not only requiring him to prove that the killing of Mrs. Stallings was justified but also that he had reasonable provocation to shoot Hagan. (b) The instruction was erroneous because it improperly commented upon the evidence. (3) The court committed error in permitting the witness Mrs. A.C. Willa, over the objections and exceptions of defendant, to testify concerning visits of deceased to her home and store, many years before the homicide, and to testify as to deceased's emotional and frightened condition; of her bruised and lacerated nose, all without any foundation whatever to connect the defendant with responsibility therefor, and which testimony included no threats by the defendant and no showing that he was even in the town at the time. This testimony was highly prejudicial to defendant was such as to furnish a basis for nothing more than a mere conjecture as to defendant's connections, if any, with the occurrence. 16 C.J. 562; State v. Darling, 202 Mo. 172; State v. Darling, 199 Mo. 198; State v. Fenley, 309 Mo. 520; State v. Birks, 199 Mo. 275; State v. Hale, 238 Mo. 509. (4) The evidence in this cause disclosed that at the time of the homicide defendant was severely beaten and injured and that he was addled and unconscious from that time until he became conscious in the office of Dr. Chostner, shortly thereafter. The court committed error in refusing to permit the defendant and witness Chostner to testify that while defendant was in the doctor's office being treated for his injuries, an officer came in and stated that Mrs. Stallings was killed; that immediately defendant exclaimed, spontaneously, "My God, I didn't kill my wife." This testimony should have been admitted as part of the res gestae. 16 C.J. 575; Garrison v. State, 40 S.W. (2d) 1009; State v. Lockett, 168 Mo. 480; State v. Castor, 93 Mo. 242; State v. Decker, 14 S.W. (2d) 617; State v. Jacobs, 133 Mo. App. 182.

Roy McKittrick, Attorney-General, and James L. HornBostel, Assistant Attorney-General, for respondent.

(1) The court properly instructed jury on question of unintentional killing. State v. Stallings, 33 S.W. (2d) 916; State v. Renfrow, 111 Mo. 597; State v. Creighton, 52 S.W. (2d) 562. (2) Substantial evidence supports Instruction 7. State v. Stallings, 33 S.W. (2d) 917; 16 C.J., pp. 1043, 1046; State v. Massey, 204 S.W. 544. (3) Evidence improperly admitted does not constitute reversible error. State v. Birks, 199 Mo. 275; State v. Hale, 238 Mo. 502; State v. Ethridge, 188 Mo. 358; State v. Moore, 36 S.W. (2d) 928; State v. Standifer, 289 S.W. 856. (4) Self-serving statements properly excluded. State v. Reeves, 195 S.W. 1030; State v. Renard, 273 S.W. 1057; State v. Musick, 101 Mo. 274. (5) Facts not proved but mentioned in prosecuting attorney's opening statement not prejudicial error. State v. Rowe, 24 S.W. (2d) 1037. (6) The plea in bar was properly overruled. State v. Billings, 140 Mo. 204; State v. Stallings, supra. (7) Instruction on credibility of witnesses proper. State v. Hart, 56 S.W. (2d) 594; State v. English, 274 S.W. 470; State v. Frank Shelton, 223 Mo. 138. (8) Instruction 11 did not destroy the value of counsel's argument. State v. Farrell, 6 S.W. (2d) 860.

WESTHUES, C.

This is an appeal from a conviction of manslaughter. It is the second appeal in the case. [See 326 Mo. 1037, 33 S.W. (2d) 914.] At the first trial appellant was convicted of murder in the second degree and his punishment was fixed at fourteen years' imprisonment in the penitentiary. The judgment of conviction was reversed and the cause remanded for a new trial. The second trial resulted in a conviction of manslaughter with a punishment of eight years' imprisonment in the penitentiary.

From the State's evidence we learn that the shooting, which resulted in the death of Mrs. Bertha Stallings, occurred on the evening of September 14, 1928, at a public dance hall near the city of Cape Girardeau, Missouri. The dimensions of the dance floor were 100 × 75 feet. A large number of people were present, among them the appellant; the deceased, who was the former wife of appellant, and Jerry Hagan. These three were the principal characters in the shooting affair. Deceased had obtained a divorce decree from appellant a short time prior to this date. Jerry Hagan was a large robust man, weighing in excess of two hundred pounds. Appellant was a small man. He had been ill and at the time was frail and weak. During the evening at the dance hall, a short time before the shooting, a man named Cunningham asked the deceased for a dance. Appellant was nearby and interfered, saying that he did not want his former wife to dance. Cunningham thereupon walked away. Appellant then asked his former wife to dance with him and she refused. A short time thereafter Jerry Hagan asked Mrs. Stallings to dance with him. Appellant approached and stated to Hagan with a curse that he was not going to dance with Mrs. Stallings. Hagan testified that at this moment appellant made a movement as if to reach for a gun and he, Hagan, struck appellant causing him to fall to the floor; that immediately thereafter and before appellant got up he drew a pistol and fired at him, Hagan. One bullet struck Hagan in the hip and another passed through his shirt. The State offered evidence by at least six witnesses that appellant, after shooting at Hagan, walked to where his former wife was standing, took her by the shoulder or hand and deliberately fired a shot into her chest. Deceased fell to the floor and died before she could receive medical aid. The State's evidence also disclosed that immediately after the shooting appellant was struck a number of times by various persons including an officer. He was taken to a doctor's office for treatment. His eyes were badly swollen and there was evidence that he had received a number of severe blows about his head and face.

Appellant's version of the affair was about as follows: He denied having said anything to Jerry Hagan or to deceased before the difficulty. He testified that when the music commenced for that particular dance he was walking toward a lady whom he intended to ask for a dance; that without any provocation whatever Hagan struck him causing him to fall to the floor; that he attempted to get up when Hagan again struck him knocking him to the floor the second time; that Hagan was advancing as if to inflict further injury upon him. Appellant testified that Hagan being a much larger man he was in rear of his life and, therefore, drew his pistol and fired at Hagan to prevent a further assault; that he did not see his former wire at the time and did not know she had been shot until informed thereof when he was being treated at the doctor's office. Appellant was corroborated in his testimony by evidence of a number of witnesses who were present at the time.

It is not difficult to visualize the confusion that naturally followed the shooting. This accounts for the conflict in the testimony of the State's as well as defendant's witnesses. The State's witnesses did not agree upon the number of shots fired by appellant at deceased, or upon many material facts in the case. However, the State's evidence was sufficient and the trial court properly submitted the case to the jury by instructions upon the questions of murder in the first and second degree and manslaughter.

The court also, on appellant's behalf, properly instructed the jury on the question of self-defense, that if appellant accidentally shot deceased while he was lawfully defending himself against an unjustified assault by Hagan they should find him not guilty.

A number of questions were presented to the trial court at the second trial that were not in the case on the first appeal. The trial court's rulings on these questions are assigned as error.

[1] Appellant filed a plea in bar contending that he had been acquitted of murder in the first degree at the first trial because the jury found him guilty of murder in the second degree. He, therefore, contends that the question of murder in the first degree should not have been submitted to the jury. In this appellant is in error. If a conviction on a first degree murder charge is reversed on appeal and the case remanded for a new trial the cause stands as though there had been no trial at all and the defendant may be tried on the information or indictment charging murder in the first degree even though the defendant was found guilty of manslaughter at the first trial. The reasons for this rule of law will be found in State v. Billings, 140 Mo. 193, 41 S.W. l.c. 780 (3); State v. Simms, 71 Mo. 538, and State v. Austin, 300 S.W. 1083, l.c. 1085 (4, 5), 318 Mo. 859. [See, also, Sec. 23, Art. 2, Mo. Constitution.]

[2] It is urged that the trial court committed prejudicial error in admitting the evidence of...