State v. Foran, 255 Mo. 213

State v. Foran

255 Mo. 213 | Mo. | 1914

ROY, C.

*218Murder *217Defendant was convicted of murder in the first degree and sentenced in accordance with the *218verdict to imprisonment for life. He shot and killed his wife, Gertrude, in their room in the second story of a rooming house in Kansas City, about midnight, July 23,1912. A window in their room opened just above a roof from which a stairway led to the alley below. '

According to the testimony, he was about twenty-two years old at the time of the trial, and first met the deceased about two years before in a sporting house. She was then living with one Ed Griffith. - Defendant abandoned his home with his mother and sister and took up with Gertrude, and about a year later married her. He stated on the witness stand that he lived a sporting life and “gambled all over town.”

About eight o’clock the night of the shooting he procured a revolver. He testified that he got it at her request, as she was uneasy about staying alone at times, and that he delivered it to her.

Her father at times called and spent an evening with her. On the night of the killing defendant and his wife were in the room, the defendant going out and returning once or twice. About eleven-thirty, a person who had been in the room with them left, and she was heard to say, “Good night, daddy.” A few minutes later a shot was heard by the landlady and by a roomer and also by three men at the mouth of the alley. The landlady heard her say, “Oh, don’t,” followed by a scream, then four more shots were fired in rapid succession. Immediately afterward she was found dead with a bullet wound in each breast and one in the back of her neck. He was not seen to pass through the hall. The window was open. A pistol was on the outside stairway. He, emerging from the alley, encountered the three men who had heard the shots and the scream, and who also heard a noise on the roof, and' said to them that he had lulled two in the alley. He went to the room of Thomas H. Miller and told him that he had “shot Gertrude” and wanted some *219•carbolic acid, to kill himself. He was without hat, coat ■or shoes. When arrested a few moments later, he “showed fight.”

Four witnesses testified to various occasions when lie told his wife to go out on the streets and get the money, or he would kill her, or “kick her.”

Ben Portman testified that defendant and his wife quarreled about some money and that she “pulled out a gun and threatened to fix him if he didn’t give her the money.”

Ben Berkowitz testified that about a month before the murder the deceased made threats against the life of the defendant. Then the following occurred on the trial: “Q. Where was that and what was said? Mr. Curtin: We object to what was said. The testimony ■of the defendant here is to the effect that this was an accident; that he had nothing to do with the shooting, therefore the testimony of any threats is wholly immaterial. The Court: Did you tell the defendant of these threats? A. No, sir, I told a friend of his, a bartender. The Court: Did you tell the defendant? A. No, sir. The Court: He says he didn’t tell him. Mr. Kimbrell: The defendant said he had been told by this man. The Court: I will, sustain the objection. Mr. Kimbrell: Exception. That is all.”

The defendant’s testimony as to the killing was as follows:

“I had an application to go to work on the fire department and I asked her if she would wake me up in the morning so that I could have the doctor’s examination and be prepared to go on. I want to get on it right away. She didn’t seem to want for me to take it. She said she did not want me to take it at all, and there was a little argument came up about her talking to Ed Griffith.. I told her to never talk to him, because he wouldn’t do her any good, a fellow she lived with. She says it is very funny you would keep me from talking to everybody. You are going to work on this *220fire department and all this. Yon won’t go to work anywhere, because we are going to leave together, and she started to fire, and I jumped up and grabbed her, and she fired two shots at me, and we were wrestling with the gun. I don’t know how many shots went into her. The rest of them went into her through this-struggle. ’ ’

During the cross-examination the following occurred: “Q. Isn’t it a fact that the commission men on Walnut street offered you positions and you refused to taire them? Mr. Kimbrell: We object to that as improper, and not cross-examination of this defendant. The Court: Objection overruled. Mr. Kimbrell: Exception. Q. Didn’t commission men on Walnut street offer you positions and didn’t you refuse to take them? A. No, sir, never.” •

The court instructed on murder in the first and second degrees. Those instructions did not use the words 'on purpose, hut did use the words “ wilfully, premeditatedly and of malice aforethought.” The instructions on murder in the first degree included the word “deliberately.”

The eighth instruction was as follows:

“The court instructs the jury that although you may believe from the evidence that prior to the time she was shot the deceased had made threats against the defendant, yet this fact alone does not justify or excuse or palliate the offense of murder, provided the jury shall further believe from the evidence that at the time deceased was shot she made no threats against defendant and made no attack or assault upon defendant and made no demonstration of violence against defendant. ’ ’

There was an instruction on accidental shooting. There was no instruction asked or given on manslaughter or self-defense. The only point made in the motion for new trial on the failure of the court to instruct is as follows: - “Fourth. Because-the court erred, in refus*221irtg to instruct on all the law arising from the evidence.”

Objection Evidence. I. Overruling the objection to the question asked of defendant on cross-examination as to whether the commission men had offered him a posi^011 which he refused, did not harm the defendant. Such an offer, if made, was complimentary to him, so that the mere question did not prejudice him with the jury. The answer was, “No, sir, never,” and he was not contradicted on that point. We are unable to see how he was harmed by the incident.

Insruction Manslaughter. II. Defendant is not in position to complain of the fact that no instruction on manslaughter was given. The trial court’s attention was not called to the subject of an instruction on manslaughter either on the trial or in the motion for a new trial. The objection made here for the first time comes too late. [State v. Conway, 241 Mo. 292.] The higher rule is recognized in that case that we are bound to see that no injustice is done even though the court’s attention was not called to the particular point in the motion for a new trial. We have examined the case to see whether the verdict might have been different if such an instruction had been given. We find that the State’s evidence clearly shows a eold-blo.oded murder. The defendant’s testimony disclaims manslaughter and self-defense and claims that the killing was accidental. Manslaughter is not consistent with the theory either of the State or of the defendant. What is more, the jury were instructed as to both first and second degree murder. They found him guilty of the higher offense. They evidently would not have considered the idea of manslaughter.

*222No of Proof. *221III.Ben Berkowitz testified that deceased had threatened the life of defendant. When asked what *222was said by her, an objection was sustained. There was no offer to show what the answer would ba.ve been. We can not act in the dark as to the merits of defendant’s rights to the answer. Whether the answer would have weakened or strengthened the evidence already given that she threatened his life, we cannot say. When counsel desire us to consider the propriety of excluding evidence, we must be shown what the proposed evidénce would have been. [State v. Page, 212 Mo. l. c. 238.]

Instrution “On Purpose” IY. The failure to use the words “on purpose” in the instructions was not error. Those words are synonymous with “wilfully” which was used. The instructions, in that respect, are such as are ordinarily given. [State v. McCarver, 194 Mo. l. c. 727; State v. Stephens, 96 Mo. l. c. 645.]

Threats. Y. Instruction 8 on the subject of threats is .in substance the same as those approved in State v. Sovern, 225 Mo. 607; State v. Spencer, 160 Mo. l. c. 124 and State v. Rider, 95 Mo. 484.

The judgment is affirmed.

Williams, G., concurs. PER CURIAM.

The foregoing opinion of Eoy, C., is adopted as the opinion of the court.

All the juda'es concur.