Opinion
No. 41665.
February 13, 1950.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, THOS. J. SEEHORN, J.
J. E. Taylor, Attorney General, John R. Baty, Assistant Attorney General, for respondent.
Jessie James Colbert, defendant-appellant, appealed from the judgment of the circuit court of Jackson County, wherein, upon the jury's verdict, he was sentenced to twenty years imprisonment in the state penitentiary for the murder of Thelma Jackson, who had lived with him as his wife.
After appellant's motion for new trial was overruled, he filed here a transcript of the entire record, including a bill of exceptions containing all the evidence introduced, but he filed no brief in this court. Upon this appeal, without brief or argument by appellant's counsel, we examine the record proper and consider the assignments made in appellant's motion for new trial. Mo.R.S.A. § 4150; State v. Weston, Mo.Sup., 202 S.W.2d 50.
Appellant's motion for new trial raises only the questions that (1) there was not sufficient evidence as to corpus delicti to sustain the charge made in the information, (2) under the facts instruction four failed to fully instruct upon all the necessary law as to manslaughter, and (3) instruction five submitting self-defense failed to submit that the homicide was justified if committed to prevent the commission of a felony upon appellant.
The testimony tends to show that from September, 1943 until May, 1948 appellant and deceased lived together as man and wife. Thereafter, deceased left appellant. They were separated because of some other man. Deceased told appellant she had left him and had another "boy friend". While they were separated appellant told his landlady, Mrs. Meade, that he intended to kill Thelma Jackson. On June 15, 1948, appellant purchased a 38 cal. revolver and took it to his room. On the evening of June 16, 1948, when appellant returned to his room, deceased, wearing a flowered dress, was standing in the hallway leading to the room. Appellant and deceased then entered the room together. Four or five minutes later the landlady heard a noise in appellant's room, but she did not investigate it.
By appellant's written confession made on June 20, 1948, it was shown that, immediately after they entered the room, appellant asked deceased if she had come back to live with him and she replied that she had not. A quarrel then ensued and, "we started scuffling. When we got near the dresser I reached in the dresser drawer and got my gun. We continued to scuffle and I stumbled over a chair and fell. She (deceased) started for the ice box again and I pointed the gun at her and fired one shot. I was standing near the kitchen table when I fired this shot and Thelma was standing by the ice box and had started reaching for the shot gun. I turned and ran out of the house".
Three days later the landlady unlocked the door of appellant's room and Thelma Jackson's body lay on the floor. She had been dead about three days. When discovered she had on the same dress she was wearing when the landlady saw her enter the room with appellant on the evening of June 16. The testimony established that she had died from a gun shot wound in the upper chest. No gun was found in the room. Appellant was arrested in another state. The revolver which he had purchased on June 15, and with which he admitted he shot deceased, was found under his pillow when he was arrested.
While in a murder prosecution the state has the burden to establish defendant's guilt and every element of the offense, including the corpus delicti, State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, the latter may be shown by the best evidence obtainable but such evidence must be legally sufficient to convince beyond a reasonable doubt. To establish the corpus delicti, in addition to proving the death of a human being, the state must show the criminal agency of another in causing such death. State v. Meidle, Mo.Sup., 202 S.W.2d 79, 81. The jury could infer from these facts and surrounding circumstances that the death of deceased was not due to natural causes or accident and that such death was not self-inflicted. The criminal agency of defendant in causing the death of deceased is apparent from the above facts and circumstances. The proof of corpus delicti is sufficient. State v. King, 342 Mo. 1067, 119 S.W.2d 322, State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843, State v. Barrington, 198 Mo. 23, 95 S.W. 235.
We next consider instruction four. That instruction submitted manslaughter in the usual and proper form. The motion for new trial complains that inasmuch as, in R.S.Mo. 1939, § 4379, Mo.R.S.A., homicide is deemed justifiable when "committed by any person in either of the following cases: * * * or, third, when necessarily committed in * * * preserving the peace", that instruction four is erroneous for not excusing this homicide if appellant was "preserving the peace", when deceased was killed. The motion for new trial cites State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, 56 as authority for appellant's position. The facts of the Brinkley case so readily distinguish it from this case that discussion would but demonstrate the obvious.
There was no question in the instant case of preserving the peace, nor was there any evidence here which would have warranted the inclusion in the instruction of anything respecting preserving the peace. Under instruction 4, if the jury had found appellant shot deceased "in the lawful defense of his person", it could have acquitted appellant. But there is no evidence in the record here that the homicide was committed in "preserving the peace", and such is not reasonably inferable from anything in this record. Deceased had left appellant for another man. After that occurred appellant purchased the gun with which he killed her. On the day of the homicide deceased returned to appellant's room to get some of her personal property. He asked her if she was coming back to live with him. She replied in the negative. It appears he wanted her to return to him. A quarrel and a scuffle ensued. Appellant's confession stated, "* * * when I fired this shot * * * Thelma * * * had started reaching for the shot gun". Upon that testimony the jury could have found, but was not compelled to find, appellant shot in self-defense. State v. Bartlett, Mo. Sup., 224 S.W.2d 100. In any event, there was no evidence appellant was "preserving the peace", when he shot. And the court, under this record, cannot be convicted of error for failing to tell the jury in instruction four that the homicide could be found to be justifiable if it found that appellant shot deceased while "preserving the peace". There was no evidence upon which to base it. The point is without merit.
The last assignment of the motion for new trial complains that instruction five, submitting self-defense, limits the ground of self-defense "to one category, namely, great personal injury, and completely ignored the provisions to commit any felony upon him or in lawfully keeping or preserving the peace in any dwelling house". What we have said in the preceding paragraph disposed of that portion of the assignment above italicized. That need be no further noticed.
Instruction five authorized an acquittal on the ground of necessary self-defense if, at the time appellant shot deceased, appellant, (1) "had reasonable cause to apprehend upon the part of deceased a design to do him some great personal injury"; that (2) "to avert such apprehended danger he shot deceased" and that (3) he had reasonable cause to believe and did believe it necessary to shoot deceased, "to protect himself from such apprehended danger". The instruction was likewise correct in all other necessary respects. The complaint made is without substance. It will be seen that the above quoted wording of the instruction is amply sufficient to advise the jury that appellant could be acquitted on the ground of self-defense if he shot her to protect himself from any apprehended danger to his own person, whether great personal injury or apprehended felony, either or both. "Apprehended danger" of necessity included both the possibility of felony and personal injury. There cannot possibly be any merit in appellant's contention.
We find the information is in proper form, sufficiently charged the crime, and fully apprised appellant of the charge against him. Appellant was represented by counsel and this record shows he had a fair trial. The verdict is likewise in proper form. The punishment assessed is within the statutory limits. Allocution was granted. We find no error and it follows that the judgment of the circuit court is in all things affirmed. It is so ordered.
All concur.