State v. Westmoreland
| Decision Date | 15 March 1939 |
| Docket Number | No. 36251.,36251. |
| Parties | STATE v. WESTMORELAND. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Wayne County; Wm. R. Edgar, Judge.
Downey Westmoreland was convicted of murder in the second degree, and he appeals.
Affirmed.
Roy McKittrick, Atty. Gen., and Tyre W. Burton, Asst. Atty. Gen., for respondent.
In the Circuit Court of Wayne County, Missouri, the appellant was convicted of murder in the second degree, and his punishment was assessed by the jury at imprisonment in the state penitentiary for a term of twenty-five years.
The appellant has not favored us with a brief; we will, therefore, examine his assignments of error in his motion for a new trial.
He contends that the evidence is insufficient to sustain the verdict. Briefly, the evidence is as follows: On April 7, 1937, the appellant and Willard Westmoreland were operating a sawmill in Wayne County, Missouri; Everett Wilcox, the deceased, was working for them hauling slabs and timber; on the morning of the above mentioned date, the deceased came to the slab pile and started to load a truck; some argument arose between the deceased and the appellant, who was standing about thirty feet from the deceased; the appellant drew his gun from his pocket and fired at the deceased; about the time the second or third shot was fired, the deceased picked up a rock but was hit by another shot before he threw it; he died as a result of being shot. There was some evidence that the bullet entered deceased's body from the back and that another bullet struck him in the arm.
The appellant admits that he killed the deceased, but claims he and the deceased had had some trouble over the hauling of the slabs, and that the deceased had previously threatened his life. The appellant testified that at the time of the shooting, the deceased first threw a rock at him; he thought he was going to be killed and he shot the deceased to protect his own life.
We think the evidence is sufficient to sustain the verdict. In the first place, the appellant admits that he intentionally shot the deceased. The intentional killing of a human being with a deadly weapon is presumed to be murder in the second degree, absent evidence tending to show a different grade of offense or that such killing was justifiable or excusable. State v. Snow, 293 Mo. 143, 238 S.W. 1069; State v. Eason, 322 Mo. 1239, 18 S. W.2d 71; State v. McCracken, 341 Mo. 697, 108 S.W.2d 372. The appellant sought to justify his acts by a plea of self-defense. This was a question for the jury and the jury found against him. State v. Cole, 304 Mo. 105, 263 S.W. 207; State v. Farrell, 320 Mo. 319, 6 S.W.2d 857.
The appellant complains that the court erred in failing to define the terms, "justifiable homicide" and "excusable homicide." The court did define "justifiable homicide" in the instruction on self-defense. If the appellant wanted a more detailed instruction, it was his duty to request such instruction. There was no evidence of "excusable homicide" as that term is defined in Section 3986, R.S.Mo.1929, Mo. St.Ann. § 3986, p. 2792; therefore, it was not necessary to define it. State v. Jacobs, 152 Mo. 565, 54 S.W. 441.
Another assignment of error in the appellant's motion for a new trial is that the court erred in striking out certain words in the verdict. We fail to find in the record such action by the court as charged in this assignment. Motion for a new trial does not prove itself. State v. Revard, 341 Mo. 170, 106 S.W.2d 906.
The appellant assigns as error the failure to define, "beyond a reasonable doubt," the phrase used in Instruction No. 4. "A reasonable doubt instruction was given in this case; therefore, the repetition of the phrase `beyond a reasonable doubt' in other instructions was entirely unnecessary." State v. Buckner, 335 Mo. 229, 72 S.W.2d 73, loc. cit. 76. See, also, State v. Batson, 339 Mo. 298, 96 S.W.2d 384.
The appellant also assigns as error the failure of the court to discharge the jury on account of the conduct of the prosecuting attorney. In his motion for a new trial he states that the prosecuting attorney attempted to exhibit and introduce the bloody clothing of the deceased after the court had sustained his objection to such exhibit. We fail to find in the record where such action occurred, however, the appellant placed his attorney, Mr. Powers, upon the stand to prove such occurrence....
To continue reading
Request your trial
-
State v. Ferguson
... ... affidavits or testimony of the jurors themselves." 23 ... C.J.S., Sec. 1495; State v. Rush, 95 Mo. 199, 8 S.W ... 221. This is so even though the jurors' affidavits may be ... used in support of the verdict. State v. Westmoreland ... (Mo.), 126 S.W.2d 202 ... The ... appellant offered and the court declined to give an ... instruction which told the jury that they could not ... "indulge in speculation or guesses as to the evidence in ... this case." It told them that they were to find the ... facts ... ...
-
State v. Thomas
...State v. Mitchell, 229 Mo. 683; State v. Pippey, 71 S.W.2d 719; State v. Piro, 246 S.W. 928; State v. Shuls, 44 S.W.2d 94; State v. Westmoreland, 126 S.W.2d 202; v. Woodward, 130 S.W.2d 474; State v. Kenyon, 126 S.W.2d 245. OPINION Ellison, J. The appellant, a negro 20 years old, was convic......
-
State v. Graves
...and pistol described in the information and opening statement of the prosecuting attorney. State v. Peterson, 154 S.W.2d 139; State v. Westmoreland, 127 S.W.2d 202; State McDaniel, 336 Mo. 671; State v. Shawley, 334 Mo. 352; State v. Long, 336 Mo. 630. (7) It was highly prejudicial to the i......
-
State v. Foster
... ... v. Todd, 116 S.W.2d 113. (4) The court did not err in ... giving Instruction 3 for the State. State v. Batson, ... 96 S.W.2d 384; State v. Fitzgerald, 174 S.W.2d 211; ... State v. Purl, 183 S.W.2d 903; State v ... West, 142 S.W.2d 468; State v. Westmoreland, ... 126 S.W.2d 202. (5) The court did not err in giving ... Instruction 5 for the State. State v. Bagby, 93 ... S.W.2d 241; State v. Bolhofner, 82 S.W.2d 894, 336 ... Mo. 1155; State v. Campbell, 84 S.W.2d 618; ... State v. Sagerser, 84 S.W.2d 918; State v ... Spencer, 195 S.W.2d ... ...