State v. Whitchurch

• Decision Date: 30 June 1936
• Citation: 96 S.W.2d 30,339 Mo. 116
• Parties: The State v. Rebecca Whitchurch, Appellant
• Court: Missouri Supreme Court

96 S.W.2d 30

339 Mo. 116

The State v. Rebecca Whitchurch, Appellant

Supreme Court of Missouri

June 30, 1936

Appeal from Washington Circuit Court; Hon. Robert I. Cope Special Judge.

Affirmed.

Edgar & Matthews for appellant.

(1) The defendant was entitled to a reasonable length of time in which to challenge the jury, and error was committed by the court in requiring defendant to make her challenges in two hours. State v. Lamont, 180 S.W. 861; Sec. 3676, R S. 1929. (2) Reversible error was committed by the court in refusing to give Instruction 19 offered by the defendant said instruction being the converse of Instruction 3, given by the court, under which the jury were told how they could find the defendant guilty of murder in the second degree. State v. Tucker, 62 S.W.2d 453; State v. Ledbetter, 58 S.W.2d 453; State v. Stewart, 29 S.W.2d 120; State v. Hayes, 247 S.W. 165; State v. Shields, 246 S.W. 932; State v. Major, 237 S.W. 486; State v. Johnson, 234 S.W. 794; State v. Rutherford, 152 Mo. 124. (3) Instruction 21 offered by the defendant, to the effect that if the deceased was shot as a result of an accident, was proper and should have been given, as under the evidence the jury would have been justified in finding the homicide was the result of an accident. State v. Stallings, 64 S.W.2d 643; State v. Fieldler, 50 S.W.2d 1031; State v. Coff, 183 S.W. 287; Sec. 3986, R. S. 1929; Camel v. State, 111 Wis. 152; Ryan v. State, 115 Wis. 488. (4) Instruction 23 offered by the defendant was a proper converse instruction to Instruction 3 given by the court and therefore the court erred in refusing to give said converse Instruction 23 on behalf of the defendant. Cases under Point (2). (5) The defendant was entitled to prove statements in the nature of threats made by the deceased toward defendant, immediately prior to the shooting on the question of self-defense and the court erred in excluding said statements from the jury. State v. Sterling, 72 S.W.2d 70; State v. Malone, 39 S.W.2d 786; State v. Burns, 280 S.W. 1026; State v. Jones, 249 Mo. 80, 155 S.W. 33; State v. Hale, 141 S.W. 1125; 30 C. J. 235.

Roy McKittrick, Attorney General, and William W. Barnes, Assistant Attorney General, for respondent.

(1) The law is well established in this State, that the trial court may not be convicted of error in respect to matters upon which it was not asked to rule, and exceptions saved to the ruling. (2) The court properly refused instructions 18 and 21. Instruction 18 is not the converse of State's Instruction 3, and too, the instruction is erroneous. The law is, one who intentionally violates a criminal law, which he is conclusively presumed to know, cannot be heard to say that he had no criminal intent in doing so. State v. Conley, 280 Mo. 25; State v. Allister, 317 Mo. 352; State v. Lentz, 184 Mo. 241. In view of the foregoing authorities the trial court properly refused the instructions here complained of. (3) The court properly refused defendant's Instruction 23. Instruction 23 offered by defendant is not the converse of Instruction 3 offered by the State, and said instruction is erroneous in that it does not properly declare the law of second degree murder. Instruction 3 read together with other instructions clearly and properly declared the law of second degree murder. State v. Young, 314 Mo. 631; State v. Emory, 246 S.W. 951; State v. Todd, 194 Mo. 388, 92 S.W. 674.

OPINION

Leedy, J.

Upon a trial in the Circuit Court of Washington County appellant was found guilty of murder in the second degree, in having shot and killed one Arthur Lewis, and sentenced to a term of twenty-five years in the State penitentiary. After an unsuccessful motion for a new trial, she has duly appealed.

On and for some months prior to August 2, 1934, the date of the alleged homicide, appellant was engaged in business at Potosi as the operator of a restaurant. She was about forty years of age, and deceased, Arthur Lewis, was about twenty years old. Shortly after noon on the day in question, she left her restaurant in company with Arthur Lewis, and they drove to DeSoto in appellant's brand new Chevrolet coupe. At the time of their departure, appellant kissed her seventeen year old daughter, who admonished her mother "to be back by dark," to which appellant replied, "I said good-bye."

At DeSoto appellant and Lewis called at the home of the latter's sister, Mrs. Eva Jackson, who testified that appellant "Didn't have very much to say, only she didn't seem to be in no hurry about getting back; he said he had a date that night. . . . She (appellant) asked him (Lewis) if Roy was going to take him, and he said, 'I don't know. I may go in that car' and she said 'not in that car. You will never go to see any girl in that car.'" She further testified that her brother said "he couldn't work since she (appellant) had that good-looking girl in the restaurant," to which appellant replied, "'You don't need to mend your cotten breeches that girl won't never bother you.'" The witness further testified, "She seemed to be nervous. She kept raising up her dress. She had a large handkerchief in her hand and every once in a while she would raise and pull up her dress and put her hand under her arm."

The tragedy occurred in the afternoon at a point about three miles north of Potosi in what is referred to throughout the record as "an old field" adjacent to the "old DeSoto road," known also as "detour 21." Running across and over the "old field" for some distance was a byroad or lane. Near its junction with the old DeSoto road, the lane had two prongs or forks about thirty feet apart, both of which were used for public travel. Phil Jarvis, a delivery boy for a Potosi grocer, was first to arrive at the scene of the tragedy after it had occurred. He was making a delivery of groceries to the home of one Fowler, who lived nearby. He was driving a car, and left the old DeSoto road on the north prong of the byroad referred to, and went across the old field to the Fowler home. He testified he saw no car on the byroad as he went to the Fowler home. About five or ten minutes later, returning by the same route, he met appellant near her car which was in the byroad in the old field, and some fifteen or twenty feet from the old DeSoto road. Jarvis testified that appellant there told him that "two fellows shot Mr. Lewis;" that "two fellows got on the car fender and made them drive off into that old field." At that time witness observed blood on her left arm. He saw deceased "laying there on the left side of the car door twelve or fifteen feet from the car." Appellant requested the witness to get a doctor and the sheriff. "She wanted me to help her . . . She said one of the boys killed Mr. Lewis." Jarvis went immediately to Potosi, reported the affair, and returned with others, when and where appellant made the same statement as to the manner in which Lewis met his death to numerous persons.

Returning to the restaurant about six o'clock that evening, appellant fainted. She was seen to have blood on her left arm near the elbow, which was washed off by one of her employees. There was also blood on her dress. She stated at that time that "somebody shot Art." One of those present at that time testified, "She grabbed me around the neck and said 'Arthur got shot.' She said 'two men jumped on the car and one of them shot him.'" Her testimony at the coroner's inquest, held the same night, was to the same effect. Before the inquest she had driven out in the country some fifteen miles to the residence of deceased's mother, to whom she made substantially the same statement, amplifying it somewhat so as to include a meager description of her son's alleged assailants, one of whom she said was a large man and the other a smaller man, and both "poorly dressed."

Lewis had been employed by appellant while she lived on a farm near Potosi, and had worked in her restaurant, but was not employed by her at the time of the shooting. There was evidence tending to show that appellant in May and June, 1934, made the statement four or five times that "If he (Art) didn't do her any good he would never do anybody else any good," and that she loved him. Further that she had made inquiries to ascertain whether "he loved any other girl." One witness testified to a conversation with appellant in May, 1934, in which she referred to the time she lived on the farm, and said: "She offered him (Lewis) her farm and everything on it if he would stay there all winter." Another testified to a conversation three or four weeks before the shooting, when Lewis was planning on going to Wyoming, and appellant asked witness to try to persuade Lewis not to go, and told the witness she would do anything to keep Lewis there.

The coroner and other medical witnesses testified to the nature and location of the wounds found upon the body of deceased. There was a bullet wound in the right side of the chest about the tenth rib. It went approximately straight through the body and came out on the left side, a little downward. There was another bullet hole in his right arm, through the axilla, into the chest, and across to the left shoulder. The bullets entered the body from the right side. Around the lower opening and on the arm was quite an area of powder burns. Either of the wounds would have produced death. There was also opinion evidence to the effect that the muzzle of the gun was within two to six inches of the body of deceased when the fatal shots were fired, and that he was in a sitting posture.

Appellant was the only eyewitness to the shooting. She took the stand in her own behalf, and stated her version of the affair, in substance, as follows: That in returning from DeSoto, she and Lewis had driven some distance into the...