State v. Ussery

• Decision Date: 09 February 1948
• Docket Number: 40606
• Citation: 208 S.W.2d 245,357 Mo. 414
• Parties: State v. William Ernest Ussery, Appellant
• Court: Missouri Supreme Court

208 S.W.2d 245

357 Mo. 414

State v. William Ernest Ussery, Appellant

No. 40606

Supreme Court of Missouri

February 9, 1948

Appeal from Greene Circuit Court; Hon. Tom R. Moore, Judge.

Affirmed.

Chas A. Moon for appellant.

J E. Taylor, Attorney General, and Gordon P Weir, Assistant Attorney General, for respondent.

(1) The court did not err in denying defendant's motion for continuance, because defendant was not furnished a copy of the transcript of the preliminary hearing. Sec. 4001, R.S. 1939; Lisle v. The State, 6 Mo. 426; State v. Green, 66 Mo. 631; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22; State v. Schmidt, 137 Mo. 266, 38 S.W. 938. (2) The court did not err in admitting the alleged confession of the defendant. State v. Richardson, 340 Mo. 680, 102 S.W.2d 653; State v. Menz, 341 Mo. 74, 106 S.W.2d 440. (3) The court did not err in admitting evidence claimed to have been obtained by reason of illegal and involuntary confession. 22 C.J.S., sec. 654, pp. 1001, 1002; People v. Furlong, 79 N.E. 978, 187 N.Y. 198, 20 N.Y. Cr. 485; United States v. Lee Hee, 60 Fed (2d) 924; 22 C.J.S., sec. 819, p. 1439; State v. Tharp, 334 Mo. 46, 64 S.W.2d 249; State v. Johnson, 316 Mo. 86, 289 S.W. 847; State v. Meyer, 293 Mo. 108, 238 S.W. 457; 22 C.J.S., sec. 822, pp. 1441, 1442; 22 C.J.S., sec. 823, p. 1455. (4) The court did not err in failing or refusing to give an instruction on the law of self-defense. State v. Farrell, 6 S.W.2d 857; State v. Green, 66 Mo. 631.

OPINION

Douglas, P.J.

Ussery was convicted of murder in the first degree and sentenced to life imprisonment.

While Ussery was employed as a janitor at a pool hall known as Whitey's Recreation Parlor in Springfield, he secretly had a duplicate key made for the entrance door which opens from the sidewalk into a stairway which leads upstairs to the pool room. Several days later, after midnight when the place was closed, he entered by means of his duplicate key. He tried to lock the door after he was inside but was unable to do so. He went upstairs into the pool room, took a screw-driver from a drawer in a cabinet, pried upon the door of the cabinet where money was kept, and took about $ 95 and a wrist watch. He was wiping the cabinet door to remove his finger prints when he heard the front door open. He hid under a bench.

Lee Garton, a deputy constable, employed as a member of the Merchant Patrol, accompanied by his brother Howard Garton also a deputy constable, was making his usual rounds trying the doors of the business houses which he protected. He found the door to the pool room unlocked and with his brother went upstairs to investigate. He found the drawer and the cabinet door open. He decided to telephone the proprietor, and drove away in his automobile leaving his brother Howard on guard on the sidewalk at the front door. He was a block away when he heard a shot and his brother call out. He rushed back and found his brother had been critically wounded. His brother told him a man had come out of the pool hall with the lower part of his face covered and had shot him. Howard Garton died the following morning.

After the two men left the pool room and after hearing the front door close Ussery left his hiding place and looked out the front window. He saw the automobile leave, but observed a man on guard at the front door. He then went back to the cabinet for the pistol he knew was kept there. He tied his handkerchief about the lower part of his face and crept down the stairs, gun in hand. He quietly opened the entrance door and stepped out on the sidewalk in back of Howard Garton. He commanded: "Hold it! Put your hands up and turn around." He says Garton turned, was looking at him and had both hands on a pistol in a holster at his side. Believing Garton was trying to get his gun in a position to shoot him Ussery shot three times at Garton and knew he hit Garton because Garton cried out. Ussery fled. He ran into an alley, climbed to the top of a building where he hid the pistol, and hid the pocketbook he had taken from the pool room containing part of the money, keeping about $ 65 and the wrist watch. He climbed down from the roof, went a few blocks and threw the duplicate key high in the air toward the roof of a building. He then hailed a taxicab, drove to the bus station and rode the bus to Chicago where he was picked up by police waiting for him at the bus station. He had the wrist watch and part of the money. He was taken before the Chief Justice of the Superior Court where he formally waived extradition and consented to return to Springfield.

While driving to Springfield he confessed to the two police officers who had come for him. At police headquarters in Springfield he signed a written confession. Then he guided the officers to the places where he had hidden the pistol and the money which they recovered. The pistol had three empty shells, three full ones. Then he took the officers to the place where he had thrown the key and they found it on the roof of the building. Upon his return to headquarters he signed another written statement describing his part in recovering these articles.

Able counsel were appointed to represent Ussery who pleaded not guilty, and filed a motion to suppress his confessions on the ground they were not voluntary but were obtained through threats...