State v. Wright

• Citation: 175 S.W.2d 866
• Decision Date: 06 December 1943
• Docket Number: No. 38376.,38376.
• Parties: STATE v. WILLIE WRIGHT, Appellant.
• Court: United States State Supreme Court of Missouri

175 S.W.2d 866

STATE v. WILLIE WRIGHT, Appellant.

No. 38376.

Supreme Court of Missouri.

Court en Banc, December 6, 1943.

Appeal from Circuit Court of the City of St. Louis. — Hon. Joseph J. Ward, Judge.

REVERSED AND REMANDED.

Geo. L. Vaughn for appellant.

(1) Deliberation is an essential element to murder in the first degree, and, when deliberation is lacking, it is murder in the second degree. State v. Liolios, 285 Mo. 1, 225 S.W. 941; State v. Eaton, 154 S.W. (2d) l.c. 768. (2) Deliberation is something more than premeditation. It is not only to think of beforehand, which may be but for an instant, but (is) the inclination to do the act after it is considered, weighed, pondered upon, for such length of time after a provocation is given as the jury may find for the blood to cool, ... and is only exercised, in a cool state of blood. State v. Kotovsky, 74 Mo. 247; State v. Liolios, supra. (3) The defendant was entitled to an instruction on self-defense on the evidence put into the record by the State in its case in chief. State v. Burrell, 252 S.W. 709; State v. Bidstrup, 140 S.W. 904; State v. Creighton, 52 S.W. (2d) 556; State v. Frame, 204 S.W. 8; State v. Fredericks, 136 Mo. 51; Sec. 4070, R.S. 1939. (4) The fact that defendant denied cutting deceased did not deprive him of the benefit of the other evidence in the record tending to establish the defense of self-defense. State v. Bidstrup, supra; State v. Frame, supra; State v. Fredericks, supra; State v. Creighton, supra. (5) There was sufficient evidence in the record to make it mandatory on the court to give an instruction of self-defense. State v. Frame, supra; State v. Turnbo, 267 S.W. 847. (6) By referring the jury to another instruction which it did not give for the meaning of the terms: "`Justifiable homicide' as used in these instructions, means the killing of another in lawful defense of one's person, as more fully explained in another instruction given you", without giving another instruction more fully defining the words, "lawful defense of one's person", deprived the defendant of a proper manslaughter instruction, and, under the circumstances in this case, was reversible error. State v. Turnbo, supra.

Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

(1) The court properly overruled defendant's demurrer at the close of the State's case as well as at the close of the whole case, there being substantial evidence to go to the jury and support the verdict of guilty of murder in the first degree. State v. Berkowitz, 29 S.W. (2d) 150, 325 Mo. 519; State v. Bowles, 146 Mo. 6, 47 S.W. 892; State v. Greaves, 147 S.W. 973, 243 Mo. 540. (2) Such an assignment against the verdict is against the law and is too general to preserve anything for review by this court. Sec. 4378, R.S. 1939; State v. Kennon, 123 S.W. (2d) 46. (3) Assignment of error under Point 3 in the motion for new trial. The record fails to show such evidence and objections, therefore, such assignment will not prove itself. State v. Adams, 318 Mo. 712, 300 S.W. 738. The court properly instructed on manslaughter where no issue of self-defense. State v. Pillow, No. 38248, 169 S.W. (2d) 414. (4) The court committed no error in not giving an instruction on self-defense for the reason that self-defense is not an issue. State v. Whitchurch, 96 S.W. (2d) 30, 339 Mo. 116. (5) The court committed no error in not giving an instruction limiting and defining the purpose for which evidence was admitted concerning another crime alleged to have been committed by the defendant. State v. Rowe, 24 S.W. (2d) 1032, 324 Mo. 863.

ELLISON, J.

The appellant was convicted of murder in the first degree for fatally cutting one Frank Stewart and his punishment assessed by a jury at death, in the circuit court of the City of St. Louis. The judgment was affirmed in Division 2, but the cause was thereafter transferred by that Division, on its own motion, to the court en banc because of doubt as to whether an instruction on self-defense should have been given, especially in view of prior decisions. The assignments in appellant's brief complain of the insufficiency of the evidence to support the verdict of murder in the first degree; of the failure to give an instruction on self-defense; and of error in the given instruction on manslaughter.

The appellant, Willie Wright, 29 years old, and one Willie Robinson were jointly indicted. A severance was granted and Robinson "took a year" in the City Work House on a plea of guilty, it seems. The deceased Stewart was a negro, as were appellant and most of the other parties prominently figuring in the case, according to our understanding. About one o'clock in the morning of July 14, 1940¹ Stewart was seated with the State's witness Davis and a man named William (who did not testify) in a parked automobile facing west on the north side of Delmar Avenue near the northeast corner of its intersection with Jefferson Avenue in St. Louis. The latter runs slightly to the southeast, and Delmar Avenue east and west. Paralleling it and next south is Lucas Avenue. Next beyond that is Washington Boulevard. Paralleling Jefferson Avenue and a block east is another cross-thoroughfare, 23rd Street. Davis testified that close to their parked automobile the appellant and Robinson, both of whom then were strangers to him, assaulted a third party, an old man 50 or 60 years old who was passing by, and appellant cut him on the arm with a knife. The witness first volunteered they were robbing or attempting to rob the old man, but that was stricken out. The old man struggled free, his hat falling off, and ran down the street. The appellant pursued him but abandoned the chase and came back. He picked up the old man's hat and threw it on the parked automobile.

Stewart said: "What did you beat that old man up like that for, and then take his hat and throw it up on the car? The officers may come up and think I did it." Then he ordered, "Take it down." Appellant answered, "God-damn it, make me take it down." Stewart got out of the automobile with a coca cola bottle and walked around to the hat on the car. Appellant opened his knife. Stewart said "Get back off of me with that knife." Appellant said, "God-damn it, I want you to make me take that hat off the car," and started toward deceased with the knife. Stewart threw the coca cola bottle at appellant but missed him. Then appellant closed in and "went to cutting" Stewart, who "got loose and walked on 23rd Street about a block." (This must mean to 23rd Street.) Then the witness added, "and that is where he cut him, and went to cutting him." This testimony is ambiguous. It may mean the appellant began to cut Stewart at the scene of the first encounter near Jefferson Avenue, or on 23rd Street a block away, or both. But it shows appellant pursued or followed Stewart.

This is of some importance, because appellant contends witness Davis later testified the deceased Stewart pursued appellant, thereby furnishing a basis for a self-defense instruction. And it is true that thereafter, on cross-examination, witness Davis answered "Yes" to a confused leading question which assumed a fact: "Well, how did Stewart, the deceased — he did Stewart, the deceased, did run after Wright from Jefferson and Delmar to 23rd and Delmar? That is true, is it not?" But subsequently he impliedly denied it, as follows. A few pages further on in the cross-examination, when counsel again asked witness Davis about the deceased Stewart's pursuing the appellant Wright, the witness answered: "You mean when Willie Wright was running Stewart? That's what you mean, don't you?" Then counsel referred the witness to his former answer to the leading question, and the witness started to reply: "You just asked me" — but there appellant's counsel interrupted, cutting off the witness, so that he was prevented from explaining further. It seems to the writer the witness' statement on cross-examination that the deceased pursued appellant after the first encounter was due to a misunderstanding. It certainly is in conflict with what he said on direct examination when he had a better chance to tell his story in his own way. But we pass this point and continue with the further narrative, since there was other evidence on self-defense.

Stewart came back to the "Workmen's Bar." This bar was on the northeast corner of the Jefferson-Delmar intersection near where the automobile was parked. The street number was 800 North Jefferson. There on the sidewalk appellant cut Stewart again. Stewart went inside, collapsed and died. The appellant wanted to hit him with a pepper sauce bottle, and then ran away. Robinson did none of the cutting. The witness identified appellant and the knife — said at least it looked just like the one used — and denied his group were drinking. He further denied that just previously the appellant had been "playing a harp in the back of the tavern there, drinking wine," (apparently at Workmen's Bar); and that Stewart had a knife.

Clifton Kaid, eighteen years old, lived with his mother and stepfather on the second floor just around the southeast corner of Delmar and 23rd Street, a block east of Jefferson Avenue. He heard a bottle break, looked out the window and saw three men fighting. They were across the street. Two of them were fighting and kicking a third who was scuffling on the ground and trying to get up. They were strangers to the witness but he identified the appellant as one of the two men. He was cutting and the other was kicking the man who was down. Appellant cut the prostrate man on the neck. The latter got up and walked toward Jefferson Avenue, whence he had come according to the testimony of the previous witness, Davis. Appellant followed the man and cut him, or cut at him, twice more. This was by the tavern. This witness' mother, Mary Brown, saw from her window "these two boys" chasing a tall fellow. (Again...