State v. Woolsey
| Decision Date | 20 December 1930 |
| Docket Number | 30584 |
| Citation | 33 S.W.2d 955 |
| Parties | STATE v. WOOLSEY |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled December 31, 1930.
Walter Wehrle, Richard F.Ralph, and John H. Haley, all of Clayton for appellant.
Stratton Shartel, Atty. Gen., and G. C. Weatherby, Asst. Atty. Gen for the State.
By indictment in the circuit court of St Louis county it was charged that defendant, in said county, on or about May 27 1929, with a certain pistol loaded with powder and leaden balls, did feloniously, willfully, and maliciously shoot into a certain dwelling house of one Charles W. Haub then and there situate and occupied as a dwelling house by said Charles W. Haub. Upon trial he was convicted, and pursuant to the verdict of the jury was sentenced to six months' imprisonment in the county jail and to pay a fine of $ 200, and he appeals.
The evidence offered by the state showed the following: Mr. Haub and the defendant both resided in the town of Glencoe, living on opposite sides of the principal street, called Grand avenue, which runs north and south through the town. Haub owned a building situated on the east side of the street, facing west. He conducted a store on the ground floor and with his wife and son resided in rooms above the store, which rooms consisted of a living room, dining room, and four bedrooms. Defendant's residence was on the west side of Grand avenue nearly opposite Haub's store and dwelling. He also owned a store in Glencoe. It appears from the testimony of Mr. and Mrs. Haub that for reasons not clearly shown, but inferentially attributable to business rivalry, the defendant had manifested an ill will toward the Haubs for a year or so prior to the occurrence upon which the prosecution is based, refusing to speak to them.
On the night of May 27, 1929, Mr. and Mrs. Haub retired about 11:30. About midnight or 12:15 a. m., they were awakened by the report of a gun. Looking out of their bedroom window across Grand avenue, Mrs. Haub saw the defendant standing on his porch with a gun in his hand, which she described as having a pistol grip. There was a light on defendant's porch and lights in his house. She withdrew from the window, but soon looked out again and saw defendant still on his porch and saw him fire a shot directly at the Haub dwelling, and with that shot she heard the sound of breaking glass in the dining room window of her home, toward which window defendant had fired. She then left the window and sat down on the bed for some time, during which two more shots were fired, but she did not know whether or not they struck the house. Next morning the dining room window was found to be shattered. Broken glass was scattered over the floor and some shot, more or less flattened, were found and picked up from the floor and from a flower pot in the dining room. Branches of fern in the flower pot had been severed by some of the shot.
Mrs. Haub's testimony was corroborated by that of her husband and son, except that the two latter did not see defendant fire the shot. Mr. Haub, however, saw him on his porch with the gun in his hand after the first shot was heard. Another witness, Mrs. Williams, not related to either party, who lived near by, was awakened by the first shot and, looking out, saw defendant on his porch with a gun in his hand, which she described as 'a long barrel pistol * * * or it looked like a pistol.' She left the window through which she had looked and did not see defendant shoot, but heard the subsequent shots as testified to by Mr. and Mrs. Haub and their son. Mrs. Williams' husband did not get up but heard the shots, sounding as if from the direction of defendant's porch, and heard shot strike the window above referred to and heard the breaking of the glass.
It was shown that defendant owned a gun, called by some of the witnesses a pistol, having a pistol grip, designed to be held and fired with one hand and to use a small shell described as a 410 gauge shotgun shell, loaded with ordinary shot, substantially like the weapon which the witnesses who testified to seeing him on his porch the night in question described as then in his hand. Mr. Williams, who had hunted and had some familiarity with firearms, said the reports sounded like those of a small bore gun about the size of the one owned by defendant.
Defendant, testifying in his own behalf, denied the shooting, claiming that he was at home but in bed at the time it was alleged to have occurred, and denied owning a gun such as was described by the state's witnesses. He proved a previous good character and offered evidence tending to show that a man whom the witnesses did not recognize, but whose size corresponded more with that of Mr. Haub than that of defendant, had been seen, about the time mentioned, to fire two shots from the street toward the Haub residence; also testimony to the effect that Haub had, some time prior to the shooting, made a statement indicative of a purpose to run defendant out of town if he had to 'frame' him. Haub denied making such statement. An officer, who was present when defendant was arrested, testified that defendant said at that time that he was not at home when the shooting took place. Defendant testified that he did not remember making such statement.
I. Appellant insists that the court erred in not sustaining his demurrer to the evidence and directing a verdict of acquittal. We think it apparent from the foregoing statement of facts that there is no merit in this contention. There was ample evidence to authorize submission of the case and to sustain the verdict.
II. Appellant alleges error in instruction No. 1, given by the court, in that it assumes that defendant shot into Haub's dwelling house with a pistol, whereas the evidence shows that the shooting, if any, was done with a shotgun; and that the definition of the word 'pistol' as given in the instruction 'is not such a firearm as was mentioned in evidence.'
The instruction reads: 'If you believe and find...
To continue reading
Request your trial