State v. Winn

• Decision Date: 08 June 1959
• Docket Number: No. 47081,No. 2,47081,2
• Citation: 324 S.W.2d 637
• Parties: STATE of Missouri, Respondent, v. Oscar WINN, Jr., Appellant
• Court: Missouri Supreme Court

Page 637

324 S.W.2d 637

STATE of Missouri, Respondent, v. Oscar WINN, Jr., Appellant.

No. 47081.

Supreme Court of Missouri, Division No. 2.

June 8, 1959.

Morris A. Shenker, Bernard J. Mellman, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John W. Inglish, Asst. Atty. Gen., for respondent.

EAGER, Judge.

Defendant was convicted of assault with intent to kill, without malice, and sentenced to two years in the penitentiary. The victim was Essie Mae Winn, defendant's wife. The shooting was the culmination of a long series of arguments, separations, and domestic discord. We shall state the facts briefly, as there is no question of the sufficiency of the evidence.

Defendant first met Essie about 1945, while she was a cook at a sorority house in Columbia, Missouri, and he was a houseboy. She was much older than the defendant, at least fourteen years, and probably more. She was married at the time, but apparently was not living with her husband. They began living together, and the relationship continued, off and on, until the time of this shooting. Defendant left Columbia for his mother's home in Brunswick, and Essie came there; he moved to Moberly and she came there; they bought a house in Moberly and lived there several years. Defendant left again and went to St. Louis, but Essie came there a few months later, located him, and they resumed their relationship. They bought a house there. About 1949 she told defendant that she had gotten a divorce and she testified that she had done so. By Essie's admissions and defendant's testimony, he continued to leave her frequently, and stayed from time to time in rooms at different locations; she spent one year in Michigan; but for some reason or reasons, they always got back together. Defendant insisted that Essie followed him, dominated him, enticed him back, and at times threatened him; incidentally, she was a large woman, weighing at least 180-185 pounds. They were married in July, 1957, about three months prior to this shooting. Their domestic life was enlivened with frequent arguments and with an occasional shooting. Defendant testified that Essie had shot at him three times. She admitted one of these occasions, admitted that she had owned a .38 caliber revolver, and admitted that defendant once broke up her gun with a hammer; she also testified that defendant had shot at her in July, 1957. The domestic relationship was further embroiled by the suspicion, confirmed or unconfirmed, on the part of each spouse, that the other was associating with one or more other persons of the opposite sex. There was evidence that Essie, at least upon occasions, carried a revolver in her purse. With this somewhat tarnished background, our principals separated again about Oct. 5, 1957; vaguely, this seems to have had something to do with a Buick car which they had bought and which was repossessed on Oct. 8, 1957. Defendant returned to the house on the evening of Oct. 11, as he says, to get his things, and he stayed there that night alone. Essie had been staying next door, and defendant testified that he saw her and two of her friends leave that night with three men, returning early the next morning. In any event, Essie appeared in front of their house (or the house next door) about 7:15 or 7:30 on the morning of Oct. 12. She says that she had been to the grocery and that defendant called her into the house; he says she came in of her own volition. There is little or no agreement on what happened thereafter except that she was shot, admittedly with an 'over and under' gun owned by defendant. This was a combination .22 rifle (upper barrel) and .410 shotgun (lower barrel). It had no safety, but that effect was partially achieved when the hammer was on 'halfcock.' The barrel to be fired was selected by the movement of a device on the side; the gun held only one shell of each type. Essie testified: that when she got into the house, following the defendant in, he said, 'Essie Mae, you have gone too far this time. I will kill you'; that she was standing 'better than the full length of the bed' from him, and that he picked up the gun, 'didn't aim it,' but shot her in the arm; that he then shot her again over the heart; that she then 'backed up,' and he kicked her in the stomach twice; that she sat down in a chair and that he 'clubbed' her with the stock of the gun. At that time one of the neighbors entered, the police were called, and the hostilities ended. Defendant's version was: that Essie called him at the home on the night preceding the shooting and said that 'If I didn't get out of her house they would carry me feet first'; that he was packing his things about 7:30 when Essie came in; that they got into an argument about the car and 'who was the fellow she was out with,' and that 'she got mad'; that she came towards him and 'went to her breast,' and he thought she had a gun, that he tried to shove her back, picked up the gun from the bed, cocking it, to protect himself. From this point in his testimony there is considerable confusion as to whether he purposely fired at her in self-defense as she advanced, or whether the gun was fired accidentally in the struggling which he says occurred. He did state that he had his hand on the trigger. Defendant testified that the gun was fired only once; that she was still fighting and that he pushed her into a chair. Both seem to agree that only the .22 barrel of the gun was fired.

Essie had three wounds, one on the anterior surface of the left forearm, one on the right forearm and one in the left breast, not far from the heart. A hospital physician who had examined her as a preliminary to her entrance into the hospital so testified. It was not satisfactorily explained how she received three wounds, but it seems apparent that one arm must have been in the line of the shot which struck her breast. Defendant attempted to explain how one bullet made three wounds, but not too impressively. Essie remained in the hospital about six days. We will refer later to the hospital record. There was testimony, pro and con, regarding prior threats of Essie toward defendant and of defendant toward her; he testified that she had twice threatened to shoot him. Defendant also testified, with some corroboration, that Essie had stated shortly before the trial, that she wanted him to come back home, but if he did not, she would send him 'to the pen.' Certain other features of the record will be referred to later.

The trial court gave Instruction No. 6 on self-defense in a form which is not questioned. In doing so, it gave defendant the benefit of the doubt, in view of the confused state of defendant's own evidence. See State v. Dill, Mo., 282 S.W.2d 456. Instructions No. 2 and No. 3 were the State's principal verdict-directing instructions. In No. 2, the jury was told, in substance, that if defendant 'feloniously, wilfully, on purpose, and of his malice aforethought' assaulted Essie Winn with the intent to kill, then it would find him guilty of assault with intent to kill with malice aforethought; also, that malice 'means the condition of mind which prompts one person to take the life of another or attempt to do so without just cause or justification, * * *.' In Instruction No. 3 the jury was told that if the defendant 'wilfully and on purpose' assaulted Essie 'with intent to kill, but * * * without malice aforethought,' as already defined, then it would find the defendant guilty of assault with intent to kill without malice aforethought. This instruction contained no qualifying words or phrases, and no reference to any other instruction. We note also that the word 'feloniously,' used in Instruction No. 2, was omitted in Instruction No. 3. Defendant attacks each of these instructions on the ground that it eliminates his legal defense, and permits the jury to find him guilty even though it may have believed the shooting justifiable in self-defense. Defendant cites: State v. Helton, 234 Mo. 559, 137 S.W. 987; State v. Gabriel, 301 Mo. 365, 256 S.W. 765; State v. Jones, 309 Mo. 50, 273 S.W. 730; State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467, and State v. Venable, 117 Mo.App. 501, 93 S.W. 356.

Considered together, the first three of these cases hold that an instruction on assault with intent to kill which purports to cover the whole case, but excludes the idea of self-defense, constitutes prejudicial error. In Helton [234 Mo. 559, 137 S.W. 988] the instruction hypothesized an assault 'with intent to kill him or do him some great bodily harm,' and was held to be error, although a separate instruction was given on self-defense. The court said there (137 S.W. loc. cit. 989): '* * * The fault of the instruction is, that it only required the finding of an 'intent to kill or do great bodily harm,' whether justifiable and innocent or wrongful and willful, to make it the duty of the jury to bring in a verdict of guilt. * * *' In Gabriel, supra [301 Mo. 365, 256 S.W. 767], the instruction hypothesized an assault 'willfully, that is to say, intentionally and not by accident * * * with intent to kill * * *.' This instruction was held to be error, as ignoring the defense of self-defense. The court said (256 S.W. loc. cit. 767): '* * * Defendant might have shot Pierce intentionally and thereby endangered his life, and yet may have been entirely justified in so doing in the necessary defense of his person. The instruction was therefore erroneous and constitutes reversible error. State v. Helton, 234 Mo. 559, 137 S.W. 987; State v. Stubblefield 239 Mo. 526, 144 S.W. 404. The instruction required the finding of no fact which negatived the defense of self-defense as in State v. Wicker, Mo., 222 S.W. [1014], loc. cit. 1016. Separate instructions on self-defense given by the court did not cure this error.' In Jones, supra, the instruction hypothesized a felonious assault 'on purpose,' and with intent to kill; it was likewise held erroneous. As indicated in State v. Wicker,...