State v. Strong

Decision Date14 November 1960
Docket NumberNo. 1,No. 47944,47944,1
PartiesSTATE of Missouri, Respondent, v. Virginia STRONG, Appellant. . Division
CourtMissouri Supreme Court

T. A. Shockley, Waynesville, for appellant.

John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.

DALTON, Judge.

By an information filed in the Circuit Court of Texas County the defendant was charged with murder in the first degree of one Wesley Johnson. The cause went on change of venue to Phelps County where defendant was convicted of murder in the second degree and her punishment assessed at imprisonment in the state penitentiary for a term of 50 years. See Sections 556.220, 559.020 and 559.030 RSMo 1949, V.A.M.S. She has appealed, but has not favored us with a brief. We shall, therefore, examine the assignments of error set out in her motion for a new trial. Supreme Court Rules 27.20 and 28.02, 42 V.A.M.S. 1

The first assignment is that 'the court erred in refusing to sustain defendant's motion for a directed verdict at the close of all of the evidence of first and second degree murder.' The motion further states that the evidence was 'wholly insufficient to sustain a verdict of second degree murder'; and that, 'under all the evidence, defendant could only have been guilty of manslaughter by reason of criminal negligence.' A review of the evidence favorable to the State and the verdict of the jury is required.

Defendant, age 28 years, resided with her ex-brother-in-law LeRoy Hudson, and a 16-year old girl (Wilma Jean Dobbs) in what is referred to as the Old Oak Grove Schoolhouse in Texas County, located about four miles from Cabool, on the farm of defendant's mother. About a year previous to the date of the offense in question, while defendant was imprisoned in the county jail at Houston, Missouri, she became acquainted with Wesley Johnson (hereinafter referred to as Johnson, or the deceased) who was also imprisoned in the same jail.

Defendant testified that she had previously been convicted of 'fighting and disturbance of the peace' and twice for breaking jail, once when she assisted another woman to break out of jail and once when her 'boy friend broke her out of jail. * * * Anyway, I had two jail breaks against me.' It does not appear which sentence she was serving when she met Johnson, but shortly after she was paroled from her last imprisonment and Johnson was released from custody, they 'started going together * * * began to keep company.' He would come out to her place, 'Well, usually, about every weekend,' or she would go to St.Louis, so they would be together.

On Friday, May 15, 1959, Johnson came to Cabool and had been at defendant's home a week and one day when he was shot. He 'hadn't been doing anything except staying at her home,' until Saturday, May 23, 1959. On that morning he went to Cabool 'to pick up his check from St. Louis,' and, according to defendant, when he returned about 2 p. m. 'he had been drinking pretty much.' Nevertheless, later that afternoon, defendant, Wilma, Hudson and Johnson returned to Cabool. Johnson 'wanted to go dancing,' but defendant said he was drunk and she told him, 'you go your way and I'll go mine.' Defendant and Wilma then separated from the others and went to Mountain Grove and did not return to Cabool until about 8 p. m. Later they went to Tiny's Steak House in Cabool. The State's evidence covers a period of time beginning about 11:30 p. m. May 23, 1959, until Johnson's death in the early morning hours of May 24, 1959.

About 11:30 p. m. Saturday May 23, 1959, State's witness, Jack West, saw defendant and Wilma alone in front of Tiny's Steak House and he offered to take them out to their home southwest of Cabool in his father's car. They consented and all went out and remained for a short visit, but, presently, defendant wanted to return to Cabool to look for Johnson and, accordingly, West, Wilma and defendant returned to Cabool. Driving around in Cabool, they located Johnson, who was still somewhat intoxicated. Defendant asked him to get in the car and he repeatedly said 'No', but finally entered the car and sat in the rear seat alone. The other three road in the front seat as they returned to defendant's home. On the return trip, defendant accused Johnson of leaving her and he accused her of leaving him. Defendant also accused Johnson 'of writing a check that wasn't any good.' She said she 'went and picked the check up and paid for it.' The conversation was 'argumentative.' When they reached defendant's home, all went in the house and were seated, except defendant, who stood arguing with Johnson, and 'there was some rather harsh words said.' The 'no good check', which defendant said she had paid 'was laying on the table.' Both defendant and Johnson were 'reasonably mad * * * provoked, at least.' Defendant 'told him she didn't want him writing these checks and her a-having to take them up.' Defendant 'made mention of a gun and Johnson said, 'Go get the gun." Defendant went to the back corner of the room and got a gun (a rifle, .22 caliber, 'pump gun'). When she went for it, she 'walked rather hurriedly; not exceedingly fast.' When she returned, she remained standing and 'just held it (the gun) in his (Johnson's) general direction.' Johnson remained seated on a bench at a table near the door, defendant was sever or eight feet away, and the argument continued. Defendant said to Johnson, 'I will kill you' and Johnson said, 'Go ahead.' Later, defendant again said, 'I will kill you' and Johnson said, 'Go ahead, I'm no good anyway. You'll have to suffer for it.' He told her on two or three occasions to go ahead and shoot him. West then told defendant to put up the gun, but the argument continued and a shot was fired. Thereupon, Johnson raised his leg and said: 'God damn, woman, right through the britches leg. What in the hell is the matter with you?' Thereafter, the argument about the check continued and West walked over, reached out his hand and told defendant to put up the gun, or give it to him. West also said to her: 'Don't go shooting him * * * you'll suffer for it, or you'll go to jail. Don't do it. * * * Give me the gun.' Defendant made no response, but 'She had the gun pointed in his (Johnson's) direction,' in his 'immediate direction.' She 'just continued arguing, and then she shot again.'

West further testified: 'I was watching the gun, yes, but I did not see her attempt to put it on safe * * * the trigger finger was in the gun, in the trigger guard * * * I'm positive she did not attempt to put it on safety.' She did not have the gun at her shoulder. West had just been talking to her and was about 6 feet away, she was standing about 7 feet from Johnson, who was still seated. When the shot was fired, Johnson raised up from the bench he was seated on and said, 'Take me to the doctor, quick,' and started to fall and West grabbed for him. There was blood on his chest. Defendant threw the gun down and ran over and sat down in a chair and started crying. Johnson was then placed in the back seat of the car and all returned to Cabool. Defendant rode in the back seat with Johnson and was talking to him and West heard her saying, for the first time, that she didn't mean to hurt him. When the parties arrived at Cabool, Johnson was dead. His body was lying in the back seat of West's car, when it was examined by the Coroner of Texas County. A bullet wound was observed in the right side of his chest, also there was a hole in his shirt and a hole in his right pant leg. Defendant told the coroner that she and Johnson had been arguing and she shot him.

Edward D. Elmore, a member of the State Highway Patrol, arrived at Cabool about 1:30 a. m., May 24, 1959, and defendant told him that she shot Johnson. She said they got into an argument and she was mad at him and he asked her to shoot him. The squabble started over a 'hot check' that she had picked up. She said that she had picked up several checks previous to the one in question; and that Johnson was supposed to pick her up that day and he didn't arrive. She said Johnson was seated at the table when she shot him. She later told witness the same thing, to wit: 'They got into an argument over those checks and him not being there where he was supposed to be to pick her up at the right time.'

About 1 a. m. on the morning of May 24, 1959, defendant told Wayne Rust, night policeman at Cabool, that she shot deceased. On the same morning, Patrolman Robert T. Gooch went to defendant's home and recovered 'a slide action .22 caliber rifle.' It was lying on the floor 15 feet back from the front door. There was one expended cartridge in the chamber. There was a kerosene lamp, a box of crakers and a bottle of whiskey on the table. Witness also observed a bullet hole on the wall near the baseboard, 6 or 7 inches above the floor and right beside the door.

About 8 a. m. on the morning of May 24, 1959, defendant told the jailer (Len Wilson) at Houston, 'I shot Wesley Johnson.' Witness further testified: 'She was crying and said she was pretty bad upset; said they'd been a-having trouble over a check, she's getting tired of picking up checks that he had wrote.'

Paul Howard Beckman, a physician, performed an autopsy on deceased's body. He testified that 'there had been an entrance of a small blunt object * * * someplace just to the right of the sternum, missing both the ribs and sternum. The bullet coursed from there slightly downward and toward the midline to emerge at a point just under the surface of the skin in the back, at the level of about the sixth thoracic vertebra. * * * The bullet definitely did penetrate the pericardial sack, or the sack around the heart, and a portion of the right wall of the heart or the muscle part of the heart.' Johnson's death was 'due to massive sudden shock of blood loss from the bullet penetrating the heart and great vessels from the heart.'

Defendant's evidence tended to show that on the day...

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