State v. Tourville, 45168
| Decision Date | 08 October 1956 |
| Docket Number | No. 1,No. 45168,45168,1 |
| Citation | 295 S.W.2d 1 |
| Parties | STATE of Missouri, Respondent, v. Issac TOURVILLE, Appellant |
| Court | Missouri Supreme Court |
No attorney for appellant.
John M. Dalton, Atty. Gen., Paul McGhee, Asst. Atty. Gen., for respondent.
VAN OSDOL, Commissioner.
Defendant, by information substituted for indictment, was charged with murder in the first degree, Section 559.010 RSMo 1949, V.A.M.S., and with convictions of prior felonies under Habitual Criminal Act, Section 556.280 RSMo 1949, V.A.M.S. The jury found defendant guilty of murder in the second degree, Section 559.020 RSMo 1949, V.A.M.S., and of a prior conviction or convictions of felony, and assessed his punishment at imprisonment in the state penitentiary for life. Herein upon appeal, defendant has filed no brief such as would afford us assistance in the review of this case, and we shall look to defendant's motion for a new trial for assignments of contended errors.
There was evidence introduced by the State tending to show that one William Schaeffer, a retired salesman seventy-four years old, was employed as a nightwatchman at a lumberyard located at the northeast corner of the intersection of North Broadway and East Taylor Avenues in St. Louis. A small building fronting westwardly toward Broadway constituted the business office of the lumberyard, and a few feet in front of and west of the office were three gasoline pumps, one of which contained gasoline. The one pump was primarily used in servicing the motor equipment used in the lumberyard business; however, gasoline was sold upon occasion to the public. Schaeffer's duty, in addition to those of nightwatchman, was to sell gasoline or lumber to purchasers who occasionally came to the yard late in the evening. He went on duty at 7 o'clock in the evening of September 29, 1953. He was not provided with any weapon by his employers, and no weapon was kept in or about the premises.
At approximately 6 o'clock in the morning of September 30th, police came to the lumberyard in response to an emergency call. They found Schaeffer kneeling on the floor of the office with his arms resting on a chair. He had suffered a shotgun wound in the right side of the body near the hip. The wound was 'about the size of half a dollar,' and was fatal. Schaeffer died the next morning, October 1, 1953. No shotgun or other weapon was found in or about the premises, or on the person of Schaeffer.
A niece of defendant testified that she saw defendant near her home on Cass Avenue at about 7 o'clock in morning of September 30th. Defendant told the witness that he 'had seen a watchman get shot'; and that, if she heard anything of the kind 'on the news, don't be alarmed.' At the time of this conversation defendant was sitting in his automobile which was painted a light color, gray or blue. The witness went to work at 7:30 that morning, but when she returned home at 4:30 in the afternoon defendant had repainted his car a dark blue.
The State introduced two written statements made by defendant. In one, of January 15, 1954, defendant stated that 'fairly early' in the morning of September 30th he came to the lumberyard and asked Schaeffer for some gasoline and oil. Defendant had been 'looking around this area' trying to get hold of a few dollars. By this defendant meant he was looking for a place to burglarize. Schaeffer told defendant there was no gasoline in the pump and no oil on hand. At the time, Schaeffer was sitting 'in the back part' of the office. Defendant turned around and was walking out of the building when Schaeffer mumbled something--'I didn't understand what he said at the time and I turned around to see what he said and he made the (sodomitical) approach.' Defendant said, 'No'; cursed Schaeffer; and Schaeffer came toward defendant Defendant 'grabbed the shotgun * * * trying to protect myself and I was going to grab the barrel part * * * and I had my hand on it like that, so I started to draw back and when I did, I hit the door facing and the gun discharged.' Schaeffer 'was pretty close up on top me when the gun went off; another few minutes I imagine, he would have had his hands on me.' When the gun went off 'he (Schaeffer) was only a few inches from me.' Schaeffer fell to the floor, and defendant ran out of the building. He put the shotgun in the front seat of his car, and after driving around for awhile threw the shotgun into the river.
In a letter written January 16, 1954, defendant told his mother, 'I was the one who killed the watchman on North Broadway on September 30, 1953.' The letter continued in detailing facts substantially the same as stated in defendant's written statement of January 15th.
May 27, 1954, defendant made another written statement in which he said that the shotgun was his own and was in his automobile when he went to the lumberyard. He went to the lumberyard to inquire for gas and oil. Schaeffer came out to defendant's car and made an immoral approach; seized the handle of the front door of defendant's car; When Schaeffer was three or four feet inside the building 'he made a lunge for me and when he did, I started to back right quick and the gun hit the door facing and discharged.' Defendant further stated that he took the shotgun to his home; and that his father, two or three days later, took it to the father's house.
The shotgun was turned over to the police by defendant's father. The weapon was a single shot, single action, 20-gauge shotgun. Tests tended to demonstrate the shotgun was not defective. It would not discharge unless cocked and the trigger pulled.
The State also introduced evidence tending to show that Schaeffer was in good health, although 'hard of hearing.' He was married and lived in his home with his wife and children. One of his employers, who had known him well for ten or twelve years, testified that he believed Schaeffer was not 'in any way sexually perverted.'
Several of the assignments of error in defendant's motion for a new trial are insufficient to preserve anything for our review. These insufficient assignments include-- A motion for a new trial 'must set forth in detail and with particularity * * * the specific grounds or causes therefor.' Supreme Court Rule 27.20, 42 V.A.M.S. This requirement is mandatory. State v. Schramm, Mo.Sup., 275 S.W.2d 343; State v. Gaddy, Mo.Sup., 261 S.W.2d 65. Several of the assignments are of errors in instructing the jury. Defendant did not object to any of the given instructions when they were given. Assignments of error in instructing the jury do not present anything for review upon appeal where, as here, a defendant does not object to the instructions at the time they are given and read to the jury. Supreme Court Rules 28.01 and 3.21; State v. Lawson, Mo.Sup., 290 S.W.2d 84; State v. Rush, Mo.Sup., 286 S.W.2d 767, and cases therein cited.
The trial court submitted the issue of defendant's guilt of murder in the first degree, as charged; and also submitted the issues of murder in the second degree and manslaughter, and of self-defense and accident. Errors are assigned in submitting murder in the second degree, and in submitting self-defense. It is asserted that no evidence supported a finding that defendant discharged the fatal weapon intentionally; that the State's evidence showed the shooting was accidental; that the submission of the issue of self-defense contemplates the homicide was intentional; and that, therefore, the self-defense submission was prejudicially erroneous. But, as we see it, there was substantial evidence tending to support the conclusion that defendant intentionally discharged the shotgun, a deadly weapon, at or in a vital part of Schaeffer's body. It was the province of the jury to determine the weight and credibility of defendant's written statements. The jurors could believe, or disbelieve and reject those parts of defendant's statements which tended to exculpate him, including the parts stating that the shotgun was discharged accidentally, just as the jury was privileged to believe or disbelieve any or all parts of the statements, having considered the statements and the probability of the truth or falsity of the statements, or parts thereof, together with the other facts and circumstances shown in evidence. Having this province and these privileges of the jury in mind, the trial court was justified under the evidence in submitting the issues of murder in the second degree, and self-defense (and of accident). The evidence tending to show that Schaeffer suffered a fatal shotgun wound when he was not in the possession of any firearm was substantial in tending to show...
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