State v. Williams

• Decision Date: 18 October 1935
• Docket Number: No. 33996.,33996.
• Citation: 87 S.W.2d 175
• Parties: THE STATE v. FRANCES WILLIAMS, Appellant.
• Court: Missouri Supreme Court

87 S.W.2d 175

THE STATE v. FRANCES WILLIAMS, Appellant.

No. 33996.

Supreme Court of Missouri.

Court en Banc, October 18, 1935.

Appeal from Boone Circuit Court. — Hon. W.M. Dinwiddie, Judge.

REVERSED AND REMANDED.

Howard F. Major and George A. Spencer for appellant.

(1) The court erred in giving Instruction 6 on the part of the State, for the following reasons: (a) This instruction was not supported by any evidence that the defendant voluntarily sought, invited or brought on the difficulty in which Jones was shot, or that the defendant commenced or brought on the difficulty by any willful act of her own. State v. Marlin, 259 S.W. 433; State v. Huffman, 220 S.W. 851; State v. Edwards, 102 S.W. 520, 203 Mo. 528; State v. Larkin, 157 S.W. 600, 250 Mo. 218; State v. Elsey, 100 S.W. 11, 201 Mo. 561; State v. Smith, 28 S.W. 181, 125 Mo. 2. (b) This instruction advises the jury: "Nor is anyone justified in using any more force than is apparently necessary to get rid of her assailant." State v. Ball, 262 S.W. 1043; State v. Creed, 252 S.W. 678; State v. Roberts, 217 S.W. 988, 280 Mo. 669; State v. Hopkins, 213 S.W. 126, 278 Mo. 388. (c) This instruction advises the jury: "The right of self-defense does not imply the right of attack." State v. O'Leary, 44 S.W. (2d) 50; State v. Rennison, 267 S.W. 850, 306 Mo. 473; State v. Creed, 252 S.W. 678; State v. Ball, 262 S.W. 1043; State v. Matthews, 49 S.W. 1085, 148 Mo. 185. (d) This instruction advises the jury that the right of self-defense will not avail in any case where the defendant voluntarily and of her own free will enters into the difficulty; that if the defendant does not voluntarily engage in the difficulty, she is not bound to flee to avoid it, but may resist with adequate and necessary force until she is safe; that if the defendant voluntarily sought the difficulty, then the jury is not authorized to acquit upon the ground of self-defense. State v. Burns, 213 S.W. 114, 278 Mo. 441; State v. Hopkins, 213 S.W. 126, 278 Mo. 388; State v. Malone, 39 S.W. (2d) 786; State v. Higgerson, 57 S.W. 1014, 157 Mo. 395; State v. Rapp, 44 S.W. 270, 142 Mo. 443. (2) The court erred in not sustaining defendant's objection to improper argument made by the prosecuting attorney in three instances and in failing to instruct the jury to disregard such argument and in failing to reprimand the prosecuting attorney, at the request of the defendant. State v. Goodwin, 217 S.W. 264; State v. Connor, 252 S.W. 713; State v. Webb, 162 S.W. 622, 254 Mo. 414; State v. Thompson, 238 S.W. 115; State v. Hess, 144 S.W. 489, 240 Mo. 147; State v. Clapper, 102 S.W. 560, 203 Mo. 549; State v. Sheeler, 300 S.W. 318; State v. Upton, 109 S.W. 821, 130 Mo. App. 316; State v. Briggs, 281 S.W. 107; State v. Woodward, 90 S.W. 90, 191 Mo. 617; State v. Bundy, 44 S.W. (2d) 121; State v. Campbell, 278 S.W. 1051.

Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.

(1) The information is not challenged and is sufficient both as to form and substance. State v. Clay, 201 Mo. 681; State v. Barrington, 198 Mo. 38; Kelley's Criminal Law and Procedure (4 Ed.), p. 487; State v. Painter, 44 S.W. (2d) 82; State v. Roberts, 242 S.W. 674. (2) The verdict is responsive to the charge and is sufficient in form. Sec. 3984, R.S. 1929; State v. Ashbrook, 11 S.W. (2d) 1037; State v. Likens, 231 S.W. 581. (3) The giving of Instruction 6, criticized in the first seven paragraphs, was not error. (4) The court committed no error in permitting the State to impeach the defendant's reputation for morality after she had testified. State v. Shields, 13 Mo. 236; Sec. 3692, R.S. 1929; State v. Cooper, 271 S.W. 471; State v. Hodges, 295 S.W. 786; State v. Scott, 58 S.W. (2d) 279, 332 Mo. 255; State v. Bundy, 44 S.W. (2d) 121; State v. Baird, 288 Mo. 62, 231 S.W. 625; State v. DeShon, 68 S.W. (2d) 809. (5) No error was committed by the court in refusing the offer of the expert testimony of Drs. Muir and Moore on behalf of defendant. (6) Matters of exception not contained in the bill of exceptions not before this court. State v. Yowell, 55 S.W. (2d) 995, 331 Mo. 716; State v. Stogsdill, 23 S.W. (2d) 22; State v. Hohensee, 62 S.W. (2d) 439; State v. Carroll, 62 S.W. (2d) 866. (7) This assignment is too general and is insufficient to preserve anything for review. State v. Carroll, 62 S.W. (2d) 867; State v. Williams, 292 S.W. 20; State v. Standifer, 289 S.W. 857. (8) The verdict of the jury is not excessive. State v. Preslar, 300 S.W. 690; State v. Alexander, 285 S.W. 985; State v. Renfro, 279 S.W. 702; Sec. 3984, R.S. 1929; State v. Chissell, 245 Mo. 558. (9) Demurrer offered at the close of the State's case was properly overruled and was waived by defendant when defendant offered her own evidence. State v. Starling, 207 S.W. 768; State v. Hembree, 295 Mo. 9; State v. Mann, 217 S.W. 69; State v. Jackson, 283 Mo. 18.

ELLISON, J.

The appellant, a negro woman, was convicted of murder in the second degree in the Boone County Circuit Court and her punishment assessed by the jury at ten years' imprisonment in the penitentiary, the minimum prescribed by Section 3984, Revised Statutes 1929. She shot and killed a negro named William "Dutch" Jones, who had been living with her for two years. There was no denial of the homicide; her defense was self-defense. The assignments of error in her brief and reply brief on this appeal complain of the giving of one instruction for the State; of the refusal of an instruction requested by her; of the admission and exclusion of testimony; and of alleged improper argument by the prosecuting attorney.

There were no eyewitnesses to the killing, which occurred in the appellant's home in Columbia about five o'clock in the morning of May 7, 1933. The State's proof of the detailed facts consisted mainly of a written statement given by the appellant to the police a short time afterward which was introduced in evidence without objection. This statement was as follows:

"On the morning of May 7th, 1933, about daybreak, `Dutch' Jones and myself returned home from a dance in Callaway County. `Dutch' had gone to the dance without me and I had followed him out there. We quarreled there at the dance, and then started home, and while on the road home we quarreled again; this quarrel led to a fight and we got out of the car and fought a while; while we were out of the car `Dutch' drew a gun and was going to shoot me, but instead of shooting me he shot himself in the foot. Then we got back in the car and argued some more, this time he beat me over the head with the gun. After we arrived home we argued again; this time he told me he was going to kill me. I told him he might if I did not beat him to it. I left him sitting in a chair in the front room and went into the bedroom and got a gun and went back into the front room where he was still sitting in the chair and shot him through the head. Then I ran out the front door and threw the gun away. I then went to Mayme Givans' home and told her what I done and asked her to call the police. She refused to call the police, but did call Dr. Moore, and after the Doctor arrived Mamie Givans called Stewart Parker at Doctor Moore's request."

Several of the police officers testified to oral admissions made by the appellant shortly after her arrest, substantially the same as those embodied in her written statement, but a little fuller. The principal additional facts contained in these oral statements were that when appellant went out to the dance she found the deceased with two girls sitting on his lap; and that after appellant went to the bedroom in her home and got a pistol she came back through the front room, passed the deceased as he sat in a chair fixing his wounded foot, on her way to the front door, and then shot back at him as he sat in the chair.

The appellant lived in a house with three rooms in a row on the south side of a partition and three on the north side. Her mother had the north rooms; she occupied the east two of the south three rooms. The middle one of these was a bedroom. The east room fronted on the street with a door opening thereon. An overstuffed chair was sitting in this room three or four feet from the front door and a little south thereof, with the back toward the door. The deceased was sitting in that chair. When Dr. O.A. Moore, who was called as a witness by the State, reached the house about five A.M., evidently very soon after the homicide, he found the chair in the position just stated with blood on it. The front door was open. The deceased was lying unconscious on the floor close to the south side of the chair. There was a bullet wound in his right foot between the big toe and the second toe and a bullet wound on the right side of his face about midway between the ear and angle of the lips. This latter bullet ranged upward and backward passing clear through the brain. It was a fatal wound causing the death of the deceased. The wound in the head, in the doctor's opinion, was made with a .38 caliber pistol; and the wound on the foot with a .32 or smaller caliber pistol. The wound on the foot had ceased bleeding and had been made earlier than the head wound, which was bleeding profusely. The shoe and sock were off of the wounded foot. From the position of the chair and the course of the bullet it was the doctor's opinion that the deceased must have been sitting straight up in the chair when shot. He thought the bullet would not have ranged upward, as it did, if the deceased had been bending down over his foot at the time.

Later at the police station about eight o'clock in the morning Dr. Moore dressed the wounds of the appellant. She had a cut about one and one-half inches long on the left side of her head where the part in her hair would be, and a long three-cornered cut over the left eye, about one inch long. There were some abrasions on her left knee and a few scratches on her right knee. The wounds...