The State v. Gore

• Decision Date: 18 February 1922
• Parties: THE STATE v. ETTA GORE, Appellant
• Court: Missouri Supreme Court

237 S.W. 993

292 Mo. 173

THE STATE v. ETTA GORE, Appellant

Supreme Court of Missouri, Second Division

February 18, 1922

Appeal from Buchanan Circuit Court. -- Hon. Wm. H. Utz, Judge.

Affirmed.

Mytton & Parkinson and Miles Elliott for appellant.

(1) The defendant was deprived of the right to a trial by a fair and impartial jury, in that the court, over the objection of defendant, excused legal, competent veniremen, upon the ground that they had conscientious scruples against inflicting the death penalty, and refused to excuse other veniremen who had such conscientious scruples. (2) The court erred in admitting in evidence the alleged dying declaration of deceased: (a) Because there was no proper showing that said statement was made under a consciousness and conviction of impending death and after the abandonment of all hope of recovery; (b) Because there was no showing that the alleged dying declaration was a complete and correct statement of what the deceased said, on the occasion when the statement was taken, relating to the alleged offense. State v Johnson, 118 Mo. 504; Brown v. State, 32 Miss 433. (3) The failure to define the terms "justifiable homicide" and "excusable homicide" was error. State v. Reed, 154 Mo. 122; State v. Rider, 95 Mo. 474; State v. Hickkam, 95 Mo. 322. (4) The court erred in failing to define the terms "heat of passion" and "lawful provocation," as used in the instructions. State v. Strong, 153 Mo. 548; State v. Reed, 154 Mo. 122; State v Grugin, 147 Mo. 39. (5) Instruction 7 given by the court was erroneous: (a) Because it told the jury, in effect, that any killing not murder was manslaughter; (b) because it failed to tell the jury, and misled the jury as to what constituted "heat of passion;" and, (c) because it infringed the defendant's right of self-defense. State v. Darling, 202 Mo. 150; State v. Constitino, 181 S.W. 1155; State v. Banks, 258 Mo. 479. (6) Instruction 8 given by the court was erroneous because it infringed defendant's right of self-defense, and because it so maximized every restriction on the right of self-defense and so minimized every right of defendant that it was prejudicial. State v. Hollingsworth, 156 Mo. 187; State v. Darling, 202 Mo. 150; State v. Constitino, 181 S.W. 1155; State v. Banks, 258 Mo. 479. (7) The remarks of the prosecuting attorney in his closing argument that defendant was a "woman of the world," when there was not a scintilla of evidence to that effect, was so prejudicial as to constitute error. State v. Clancy, 225 Mo. 660.

Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.

(1) The motion to quash was properly overruled. (a) The information charges defendant with murder in the first degree, and is sufficient in form and substance. It alleges all of the statutory elements necessary to constitute that crime and follows the approved form. State v. Rozell, 225 S.W. 931; State v. Conley, 255 Mo. 187; State v. Barker, 216 Mo. 543; State v. Clay, 201 Mo. 681; State v. Kindred, 148 Mo. 279; State v. Turlington, 102 Mo. 651. (b) Motion to quash was filed after defendant had entered his plea of not guilty. Said plea was not withdrawn and the motion was, therefore, out of time. State v. Reeves, 97 Mo. 672. (c) The information is properly verified by oath of the prosecuting attorney. Section 3849, R. S. 1919; State v. Carroll, 232 S.W. 701; State v. Bonner, 178 Mo. 431; State v. Schnettler, 181 Mo. 184; State v. Brown, 181 Mo. 192; State v. Brock, 186 Mo. 457; State v. Anderson, 252 Mo. 83; State v. Stewart, 274 Mo. 649. (d) Where, in the verification of an information the words, "prosecuting attorney" are omitted after the name of that officer appearing in the oath, that error is immaterial and constitutes no ground to quash. State v. Ferguson, 278 Mo. 119; State v. Kinney, 81 Mo. 101; State v. Carroll, 232 S.W. 699. (e) The information, on its face, shows that it is based upon the oath of the prosecuting attorney. State v. Salts, 263 Mo. 304. (f) Stephen K. Owen is a competent witness in this case, and the information may be based upon the oath of such witness. Sec. 3849, R. S. 1919. (g) The omission to put the words, "prosecuting attorney" after the name "Stephen K. Owen," in the oath appended to the information filed herein, did not mislead appellant or prejudice his rights upon the merits of the case. State v. Brock, 186 Mo. 457; State v. Kinney, 81 Mo. 101; State v. Ferguson, 278 Mo. 119; State v. Carroll, 232 S.W. 699. (2) The court did not commit error in excusing veniremen upon the ground that they had conscientious scruples against inflicting the death penalty. State v. David, 131 Mo. 390; State v. Bauerle, 145 Mo. 16. (3) The court did not commit error in admitting in evidence the dying declaration of deceased. (a) It appears that when the declarations were made deceased believed that death was impending and that there was no hope of recovery. State v. Lewis, 264 Mo. 428; State v. Colvin, 226 Mo. 483; State v. Kelleher, 201 Mo. 638; State v. Dipley, 242 Mo. 477; State v. Lovell, 235 Mo. 357; State v. Barnes, 204 S.W. 265; State v. Powell, 217 S.W. 37; State v. Hostetter, 222 S.W. 752. (b) The cause of declarant's death was the subject of the declaration. State v. Lewis, 264 Mo. 420; State v. Horn, 204 Mo. 549; State v. Spivey, 191 Mo. 110; State v. Parker, 172 Mo. 202; State v. Draper, 65 Mo. 340. (4) The court did not err in failing to define "heat of passion" as that term is used in Instruction 7. State v. Pleake, 177 S.W. 358. (5) The court did not err in failing to define the term "justifiable" or "excusable" homicide. State v. Jacobs, 152 Mo. 565. (6) The court did not err in giving Instruction 8, touching the subject-matter of self-defense. State v. Harper, 149 Mo. 525; State v. Hollingsworth, 156 Mo. 178 (7) The remark of the prosecuting attorney in his closing argument that defendant was "a woman of the world," was not reversible error. (a) The point has not been saved by proper objections made and timely exceptions. State v. Rasco, 239 Mo. 579; State v. McMullin, 170 Mo. 632; State v. Baker, 209 Mo. 444. (b) The vice, if any, was cured by the court rebuking the prosecuting attorney. State v. Baker, 209 Mo. 444.

DAVID E. BLAIR, J. Higbee, P. J., concurs; Walker, J., concurs in the result.

OPINION

DAVID E. BLAIR, J.

-- Defendant was tried in the Buchanan County Circuit Court upon an information charging her with murder in the first degree and, upon conviction by the jury of the crime of manslaughter and sentence upon verdict to imprisonment in the penitentiary for a period of two years, she has appealed.

Defendant was charged with killing her husband, one Cecil Gore. They were living together as husband and wife and conducted a restaurant in the city of St. Joseph. Said restaurant was composed of a dining room and three other rooms. One of these rooms was used as a bedroom, and contained a couch and other furniture. The deceased was shot and wounded in said restaurant about two o'clock p. m. on May 6, 1920, and died a week later. The shooting occurred in said bedroom. Immediately following the shooting the defendant was seen standing in the bedroom with a gun in her hand looking at deceased, who was lying on the floor. The only other person in the restaurant at the time of the shooting was one Charlie Thomas, who took the gun from the defendant after the shooting. Only one shot was fired. On the evening of the shooting about nine o'clock the deceased made a dying statement covering the shooting. Said statement is set out in full in the opinion.

The testimony tends to show that about April 20, 1920, the deceased and the defendant had some trouble, and at that time the defendant pointed a pistol at the deceased. The witness Charlie Thomas was present at that time and seized the pistol. The presence of Charlie Thomas about the restaurant seems to have been resented by the deceased, although it does not clearly appear from the testimony that the trouble resulting in the shooting grew out of that incident. The dying declaration of deceased tends to show that there was no trouble between himself and the defendant at the time of and immediately prior to the shooting. His statement is that he and his wife had been sitting in the room talking, and he started to go to his home on 27th Street, and went into the restaurant to get his hat and immediately returned to the room, and that as he got into the room the defendant reached for the gun and, without saying a word, shot him; that he did not attempt to strike or threaten her in any way; that he did not have any weapon in his hand or on his person, and that they had had no quarrel on the day of the shooting.

The defendant, as a witness in her own behalf, testified that on the day of the shooting she went into the room about 1:30 o'clock in the afternoon, after she had finished her work and while lying on the bed the deceased came in, closed the door, laid down on the bed and tried to force sexual attentions upon her; that he was diseased; that one Dr Barnes had told her that he had gonorrhea; that the defendant and the deceased scuffled on the bed and struggled about thirty minutes; that defendant jumped up off the bed, and deceased jumped up and tried to grab her, and she grabbed the gun; that the pistol was lying on "a little business" right by the bed, in plain view of both the deceased and defendant; that as defendant grabbed the pistol deceased tried to grab her before she grabbed the pistol; that he grabbed her arms and she fired; that before that he had said "By God, I will;" that defendant had the pistol in her hand at the time deceased had hold of her; that at the time the shot was fired she was in fear of bodily injury; that he had...