State v. Wilson

• Decision Date: 20 December 1930
• Docket Number: No. 30266.,30266.
• Parties: STATE v. WILSON.
• Court: Missouri Supreme Court

34 S.W.2d 98

STATE v. WILSON.

No. 30266.

Supreme Court of Missouri, Division No. 2.

December 20, 1930.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Benjamin Wilson, alias Woodrow Wilson, was convicted of manslaughter, and he appeals.

Affirmed.

Burrus & Burrus and L. T. Dryden, all of Independence, for appellant.

Stratton Shartel, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for the State.

COOLEY, C.

Defendant, Benjamin Wilson, known also as Woodrow Wilson, was convicted in the circuit court of Jackson county of the crime of manslaughter under an information charging in approved form murder in the first degree, and his punishment was assessed by the jury at five years' imprisonment in the penitentiary. From judgment in accordance with the verdict he appeals.

The testimony on the part of the state showed the following: The defendant, who was about 42 years old, had lived for several years with his mother on a farm about five miles southeast of Independence, in Jackson county. A month prior to the killing of deceased, defendant married a woman who was keeping a rooming house in Independence. She continued to keep the rooming house after the marriage, and defendant lived with her at that place.

Both defendant and his wife had known one Tony Brizendine for many years. Brizendine lived in the country near Independence. On the night of the 15th of September, 1928, Brizendine stayed all night at the rooming house conducted by Mrs. Wilson. On Sunday morning, the 16th, defendant, Brizendine, witness Webb, and others, sat around the table in the dining room of the boarding house drinking home brew furnished by the defendant's wife. About noon of that day the witness Webb, defendant, Brizendine, and another man went together in Brizendine's automobile to Sheffield to see about securing a woman to help defendant's wife in the rooming house. They all returned to the house about 1 o'clock in the afternoon. These people, other than defendant, remained in the house drinking home brew all afternoon. Defendant was present part of the time. He went from the house to the business section of town several times and returned. About 10 o'clock that night, in defendant's absence, Webb and Brizendine and defendant's wife went to the residence of one Hall for the purpose of getting more home brew as their supply at the boarding house had been exhausted.

In the meantime, defendant and his wife's son, a boy 15 years of age, went to Kansas City to attend a show. They did not go together. Defendant returned to the boarding house about 10:30, and was there alone until the stepson returned a little before midnight. Defendant said to his stepson: "Your mother had better not come in with Tony Brizendine or Clyde Webb."

A little after 12 o'clock that night, Mrs. Wilson, with Tony Brizendine and Webb, returned from Hall's residence where they had been drinking. They entered the house by the front door in the following order: Brizendine first, then Mrs. Wilson, then Webb. Defendant at that time was in the dining room. From the hall leading from the front door a door opened into the dining room, which latter door was open. There was a light in the dining room but none in the hall. Brizendine started to enter the dining room from the hall, perhaps had crossed the threshold, when a shot was fired in the dining room and he fell to the floor. He was shot through the heart and died immediately. Defendant's wife did not testify. The other persons present did not see defendant fire the shot, being in the hall at the time.

Defendant admitted the shooting. When the officers came, one of them asked him why he had done it, to which he replied: "This man has been trying to break up my home." At the trial he claimed he had acted in self defense. He took the witness stand, and on direct examination testified concerning the killing as follows:

"Q. Then, just tell in your own way what happened from that time on, Woodrow. A. Well, Tony — they came up the steps — I did not seen them when they came in, but Tony came down the hall first and he got pretty near to the dining room and I said, `Tony, I thought I told you to stay away from my wife,' and he said, `Go to Hell, you redheaded son-of-a-bitch,' and reached back for his hip pocket and I reached in the buffet drawer and got a gun and shot.

"Q. Why did you shoot? A. Well, I don't know. My sister told me that he was carrying a gun for me.

"Q. Well, were you afraid that he would do some harm and kill you, if you did not? A. Yes, sir."

No weapon was found upon deceased nor in the vicinity of the spot where he fell.

Defendant further testified that he had slept upstairs alone on Saturday night, and that when he got up Sunday morning and came downstairs to go out of the house he saw Brizendine in a room downstairs lying on his wife's bed; that on Sunday evening about 7 or 8 o'clock he met his sister up in town and she told him that Brizendine had a gun and had said that defendant "had better leave town." His testimony further indicated that he suspected there had been improper relations between his wife and deceased, and he offered evidence from which an inference of such relations might be drawn.

Without objection, it was shown by the state in rebuttal, by way of impeachment, that the defendant had been convicted of having had liquor in his possession. Defendant introduced in evidence the record of a justice's court showing that Brizendine had been convicted of violating the liquor law.

I. Appellant's first assignment of error is the refusal of the trial court to strike out "certain testimony to the effect that the defendant's business was that of gambling and bootlegging," because defendant was not charged with either of those offenses. The "testimony" referred to was this: Defendant, having testified in chief that for the last several years preceding the tragedy he had worked for his mother assisting her in caring for her orchard and the cows and poultry on a small place she owned, was asked on cross-examination if it was not a fact that the only business he had had during that time and since was bootlegging and gambling, to which he answered: "No, sir." There was no objection to the question. It was not repeated. After another question had been asked and answered, defendant's counsel moved to strike out "the answer" and that the jury be instructed to disregard the question, which the court declined to do. The only reason assigned by counsel for his motion and request was, "I don't think that is a proper question to ask, `bootlegging and gambling.'"

The answer asked to be stricken out was in defendant's favor. The question did not constitute evidence. There was no objection to the question, and in his motion to strike out defendant's counsel did not suggest any reason except that he did not think the question a proper one and did not state why he thought so. Manifestly there is no ground for complaint of prejudicial error on account of this ruling. The cases cited by appellant on this point are cases in which the state, over defendant's objection, was permitted to prove the commission by the defendant of offenses other than that for which he was on trial. They are not in point. Moreover, defendant did not in his motion for new trial complain of error in this ruling, for which reason he is precluded from urging it here even if it were error.

II. Error is assigned in that the court sustained objections to certain questions propounded on cross-examination to two of the state's witnesses, Phelps and Stafford.

On direct examination, Phelps had testified that Brizendine's reputation as a peaceful law-abiding citizen was good. On cross-examination he was asked if he knew that Brizendine had been convicted of selling liquor, to which the court sustained an objection, apparently on the ground that the record would be the best evidence of that fact. No exception was saved to the court's ruling, there was no offer of proof at that time, and later defendant was permitted to prove by introducing the record that...