State v. Turner

• Decision Date: 06 May 1938
• Docket Number: 5896
• Citation: 79 P.2d 46,95 Utah 129
• Court: Utah Supreme Court
• Parties: STATE v. TURNER

79 P.2d 46

95 Utah 129

STATE v. TURNER

No. 5896

Supreme Court of Utah

May 6, 1938

Appeal from District Court, Third District, Salt Lake County; Allen G. Thurman, Judge.

John B Turner was convicted of voluntary manslaughter, and he appeals.

AFFIRMED.

Roy F Tygesen, of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

FOLLAND Chief Justice. HANSON and WOLFE, and LARSON, JJ., concur. MOFFAT, Justice, dissenting.

OPINION

FOLLAND, Chief Justice.

In the early morning of July 8, 1936, defendant, John B. Turner, shot and killed a man named Lawrence Rucker in defendant's place of business, a restaurant at 17 South Third West street in Salt Lake City. Defendant was charged with the crime of murder in the first degree but was convicted of voluntary manslaughter, an included offense. He appeals and assigns eleven errors. They are grouped and argued under four heads: (1) Insufficiency of the evidence to sustain a verdict of voluntary manslaughter or of any verdict of guilty under the information. That is, the plea interposed of self-defense was conclusively proved so that a verdict should have been directed for defendant. (2) Error in the admission of evidence of two previous transactions where defendant used a gun, which error it is claimed was not corrected by the court excluding such evidence and instructing the jury to disregard the same. (3) Error of the court in refusing to give defendant's requested instructions numbered 1 and 2, taking from the jury the charge of murder in the first degree and of murder in the second degree on the grounds there was no evidence to support either charge. (4) Error in instructions.

Defendant had operated a small restaurant on Third West street, directly opposite the Union Pacific Station, for about a year and a half prior to the time of the trouble. He employed J. E. Clark as waiter and P. G. Green as dishwasher. Both were present at the time of the shooting and were witnesses at the trial. On the night of July 7th, Turner had closed his restaurant about 9 o'clock and he and his employees had retired in their rooms above the restaurant. On that evening Lawrence Rucker, Lee Howell, and Audrey Malone had been visiting at the home of Mr. and Mrs. Brooks. At about midnight they, with Mr. and Mrs. Brooks, came to the Turner restaurant for a meal. Finding the place closed, Miss Malone, who had at one time worked for Turner, went up to his room and asked that he prepare a meal for the party. He, with Clark and Green, immediately dressed, came to the restaurant, and prepared the meal. Mr. and Mrs. Brooks were served first. They paid for the meal and left before any trouble started. When the others finished, Rucker insisted paying for the three; that is, himself, Lee Howell, and Miss Malone, saying that he had invited them to the "party." He called for the amount of the bill, and Turner told him it was $ 1.65. Rucker then said he did not have any money with him and would have to go out for it. Turner said he did not trust any man outside his door. Rucker then asked Turner to go with him, which he declined. He then asked Turner to send some one with him, and Turner said Lee Howell should go with him for the money. Rucker and Howell stood up in preparation to leaving when Rucker turned and said, "I am very glad I found out what kind of a gentleman you are." He repeated this remark. At that point trouble started. The story of the conversations and transactions leading up to the tragedy varied slightly with each of the eyewitnesses. We shall briefly state the versions of the witnesses and of the defendant.

A description of the premises will aid in following the movements of the men. The outside measurements of the restaurant were 13 feet 6 inch in width in front and 17 feet 9 inches in the rear, by 33 feet 8 inches in depth. A slight wooden partition separated the kitchen from the dining room with an open doorway about in the center for communication between the two rooms. Just back of this opening was a shelf and "deal bench" about 4 feet 2 inches in height. A passageway 2 1/2 to 3 feet in width led around this bench on the west and south sides to the kitchen where there was a stove, refrigerator, sink, and other kitchen equipment. The dining room had a counter with five stools on the north side, with two booths and chairs and tables on the south side.

Lee Howell, who had spent a part of the evening with Rucker and was his guest at the dinner, testified that Turner was standing in the opening in the partition when Rucker made the remark about being glad that he knew what kind of a gentleman Turner was, and Turner replied, "You Goddamn crazy son-of-a-bitch, no man can come in my place of business and insult me like that." Turner then ran back into the kitchen and appeared in the doorway with a butcher knife which he used in a threatening manner. Howell then saw for the first time a pepper sauce bottle in Rucker's hand. The men were about 5 feet apart. Turner drew the knife back as if to throw it, but immediately turned back into the kitchen and reappeared with a gun in his right hand, the barrel pointed towards Rucker. Rucker was then standing in the same position he had previously occupied between the table where he had been eating and the counter. Clark, the waiter, who was standing behind the counter near its east end, said, "Do not be a damn fool, put it down and get back in there with that." Turner then backed into the kitchen and Rucker slowly followed him. Both men were then behind the partition out of sight of Howell. He heard Rucker say, "I don't believe you will shoot it." Turner said, "Don't you believe I will shoot it, huh?" Then followed the discharge of the gun. Howell testified that he then grabbed Audrey Malone, who had dived under the table, and with her ran outside the restaurant. He turned to look back and saw Rucker collapse over the counter. He testified that Rucker had some drinks before coming to the restaurant but was not drunk and did not act like he was drunk. He was not quarrelsome, cross, or mean during the evening, but was "jovial and unassuming."

Clark, the employee and waiter of defendant, testified he stood behind the counter at a point where he could see into the kitchen. He testified substantially the same as Howell except that on direct examination he said that Rucker began slowly to advance toward the kitchen with his hands to his sides, when Turner disappeared into the kitchen and returned with the knife and then the gun; and that he saw Turner display the gun over the counter or deal bench. On cross-examination he testified that Rucker started to advance toward the kitchen when Turner made the gun play. He was asked, "Had he started to go in at all before Mr. Turner showed the gun?" Answer: "I don't think so." Question: "Mr. Rucker just stood there?" Answer: "Yes, sir." In attempting to reconcile his testimony, he later said that Rucker started to advance when Turner showed the knife but hesitated and then moved forward again when Turner exhibited the gun; that then Rucker said either, "I will make you shoot" or "I will see if you will shoot." Rucker said it two or three times on his way to the kitchen. Clark testified that he did not see Rucker raise his hand with the bottle in it. At the time of the shooting and immediately before Rucker had not had his hand as high as his shoulder or he would have seen it (the deal bench and shelf would necessarily hide the lower part of Rucker's body from view). At the time of the shot, Rucker was near the southeast corner of the deal bench in the kitchen, and Turner was 3 or 4 feet away. He did not see the pistol in Turner's hand at the time the shot was fired, although he had seen it before. After the shot was fired, Rucker slumped back against the south wall for a few seconds, straightened up and came to the doorway, and fell. The sauce bottle was in his right hand. Clark testified that Rucker during the evening acted as if drunk.

The defendant's version is substantially the same except as to some of the details. He testified that after Rucker asked to have some one go with him that he said, "Okeh, Lee, go with him," (meaning Howell); that Rucker then took the bottle in his hand (none of the other witnesses saw him take the bottle or saw him with it until Turner appeared in the doorway with the knife) and "started toward me" and said, "I am glad to know what kind of a gentleman you are and made an action with the bottle" (no other witness heard the opprobrious epithet nor saw any threatening action with the bottle). When he went back to put the knife away and get the gun, Rucker followed him. Defendant said, "Don't come in here, Mr. Rucker," and, when Rucker got to the corner of the bench, he said, "You will not shoot me," and made an action with the bottle and said, "You (a very indecent remark), I will brave you." None of the witnesses testified to hearing this remark nor the one, "Don't come in here, Mr. Rucker." On direct examination defendant said he did not remember anything after that. He further testified that Rucker was drunk and that he feared him for that reason. On cross-examination the defendant's memory was somewhat better as to some of the details of the shooting. He testified as follows:

"Q. Did you ever come with your gun to the deal bench, and point your gun over that bench toward Mr. Rucker? A. Yes sir.

"Q. When you pointed the gun over the deal bench at Mr. Rucker where was Mr. Rucker? A. He was still going around the southwest corner of the deal bench.

"Q. Then you didn't point the gun over the deal bench toward Mr. Rucker? A. Yes, I did.

"Q. When did you shoot him? A. After he came around the corner of the deal bench he...