Opinion
No. 39383.
June 11, 1945.
1. CRIMINAL LAW: Homicide: Submissible Case of Manslaughter. The State's evidence that defendant shot the deceased during a discussion in a tavern made a submissible case of manslaughter.
2. CRIMINAL LAW: Homicide: Trial: Voir Dire Examination: Acquaintance of Jurors with Egan Gang. It was error to refuse defendant's counsel the right to question the jurors as to their acquaintance with members of the Egan gang of which the deceased was asserted to have been a member.
3. CRIMINAL LAW: Limitation of Cross-Examination of Police Officer Not Error. It was not error to exclude cross-examination of a detective to show that the deceased was a member of the Egan gang.
4. CRIMINAL LAW: Self-Defense Instruction Not Error. It was not error to give a self-defense instruction where defendant had stood on his demurrer to the State's evidence, especially where defendant's voir dire examination had indicated the defense of self-defense.
5. CRIMINAL LAW: Homicide: Homicide by Accident Instruction Required. There were statements in a confession offered by the State which required an instruction on homicide by accident.
6. CRIMINAL LAW: Objection to Instruction too General. An objection to an instruction was too general.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert J. Kirkwood, Judge.
REVERSED AND REMANDED.
Sigmund M. Bass for appellant.
(1) The court prejudicially erred in refusing to permit appellant to interrogate the jury on voir dire, in that the appellant was not permitted to question the jurors impaneled as to whether or not they or any of them knew any of the members of the Colbeck or Egan gang, or whether they knew Dinty Colbeck, Whitey Doering or others named. Art. II, Sec. 22, Mo. Constitution; Amend. VI, U.S. Constitution; State v. Mann, 83 Mo. 589; Steve v. Miller, 207 S.W. 797. (2) The court prejudicially erred in refusing to permit appellant to inquire of Assistant Chief of Detectives Dirrane as to whether or not he knew the deceased to be a member of the Egan or Colbeck gang, and whether or not he knew Dinty Colbeck, Whitey Doering, Chippy Robinson, Cotton Eppelsheimer, or other persons, members of said gang; and erred in sustaining State's objection to appellant's offer of proof by said witness. Capt. Dirrane, to the effect that the deceased, Gustave Dietmeyer, was a member of the so-called Egan or Colbeck gang. State v. Mann, 83 Mo. 589; State v. Miller, 207 S.W. 797. (3) The court prejudicially erred in overruling appellant's motion in the form of a demurrer filed at the close of the State's case. State v. Scott, 177 Mo. 665; State v. Tracy, 284 Mo. 619; State v. Duncan, 317 Mo. 451. (4) Instruction 4, given by the court of its own motion, was erroneous in the following particulars; (a) that there was no evidence upon which to base said instruction; (b) that it assumes facts not in evidence; (c) that it argues facts not in evidence, and thereby charges the jury as to matters of fact; (d) that it comments upon the evidence, and (e) fails to define the word "difficulty." Sec. 4083, R.S. 1939. (5) Instruction 5, given by the court of its own motion, was erroneous in the following particulars: (a) In that the same is confusing; (b) is unintelligible; (c) misstates to the jury material matters of law necessary for the jury's information, and (d) compels the jury to guess and speculate as to the meaning of said instruction and as to the law applicable to the case. State v. Ervin, 130 S.W.2d 580. (6) The instructions given to the jury by the court of its own motion were erroneous in that they failed to instruct the jury, in writing, upon all questions of law arising in the case necessary for their information in giving their verdict, in that the court failed to instruct the jury, in writing, upon the theory of "accident." Sec. 4070, R.S. 1939. J.E. Taylor, Attorney General, and Gordon P. Weir, Assistant Attorney General, for respondent.
(1) The court did not err in refusing to permit appellant to interrogate the jury on their voir dire. State v. Brooks, 5 S.W. 257, 92 Mo. 542; Kelley's Criminal Law (4 Ed.), sec. 350, p. 296; State v. Mann, 83 Mo. 589. (2) The court did not err in overruling the demurrer at the close of the State's case. Kelley's Crim. Law (4 Ed.), sec. 282, p. 240; sec. 289, p. 245; sec. 291, p. 247, sec. 242, p. 203; State v. Turner, 274 S.W. 35; State v. Mitchell, 252 S.W. 383; State v. Schaeffer, 273 S.W. 247, 221 Mo. App. 358. (3) The court did not err in giving Instruction 4 in that there is evidence in the form of statements made by the appellant that he acted in self-defense. Bill of Exceptions, pp. 101, 102; Sec. 4083, R.S. 1939. (4) The court did not err in giving Instruction 5. State v. Wade, 268 S.W. 52, 306 Mo. 457. (5) The instructions given by the court were not erroneous. Sec. 4070, R.S. 1939; State v. Baker, 278 S.W. 987; State v. Simon, 317 Mo. 336, 295 S.W. 1076. (6) General assignments of error present nothing for review. Sec. 4125, R.S. 1939; State v. Summers, 6 S.W.2d 883; State v. Stevens, 29 S.W.2d 113, 325 Mo. 434.
Lloyd E. Stone was indicted for the murder, in the first degree, of Gustave Dietmeyer; was convicted, upon trial, of manslaughter; was sentenced to ten years' imprisonment, and prosecutes this appeal. The cause will have to be remanded; but first:
We are not, and we think defendant's counsel is not, impressed with the contention the State failed to make a case. Defendant stood upon his demurrer at the close of the State's evidence. Gustave Dietmeyer was sitting on a stool at the bar of a tavern. Defendant came in, remained for a few minutes, and departed. About ten or fifteen minutes later defendant returned, walked up to Dietmeyer, who was sitting down and leaning on the bar. A discussion took place, then a shot was fired, and Dietmeyer slumped forward a little. There was another shot. Dietmeyer was taken to a hospital. Defendant admitted that he shot Dietmeyer with a revolver. Dietmeyer died two days later. This was sufficient.
Error was committed when the court refused to permit defendant's counsel to interrogate the jurors on the voir dire examination with respect to whether they were or had been acquainted with certain close friends and associates of Dietmeyer who, with him, were members of what was known as the Egan gang. It appears that the State's counsel had previously informed the jurors that Dietmeyer had been in trouble. Counsel for defendant informed the court that Dietmeyer had been an associate and a member of what was known in the locality as the Egan gang and requested, upon objection being interposed. that he be permitted to inquire as to their acquaintance, if any, with the associates and members of the Egan gang, naming some individuals, that he might have this information preparatory to making his peremptory challenges. The inquiry, the reason therefor having been made known to the court and appearing pertinent, was proper "to enable the accused to exercise judiciously his right of peremptory challenge." State v. Mann, 83 Mo. 589, 595. Additional reasons, which need not be repeated, may be found in State v. Miller (Mo.), 207 S.W. 797, 798[1, 2]; Rose v. Sheedy, 345 Mo. 610, 611[2], 134 S.W.2d 18[2, 3]; State v. Hoelscher, 217 Mo. App. 156, 158, 273 S.W. 1098; Ulmer v. Farnham (Mo. App.), 28 S.W.2d 113[1-6]. See State v. Munch, 57 Mo. App. 207; 35 C.J. 389, c; 31 Am. Jur. p. 678 et seq., Secs. 166, 177, 178, 181; Annotations, 31 A.L.R. 411; 73 A.L.R. 1028; 105 A.L.R. 1330; 105 A.L.R. 1527 (and case).
The cases of State v. Mann, and State v. Miller, supra, the only cases cited by defendant to the point, do not disclose error in the court's exclusion of proffered [22] evidence on defendant's cross-examination of a detective to show that Dietmeyer was a member of the Egan gang. The cases cited do not treat of the issue, their observations being limited to the proper scope of inquiry of jurors on voir dire examination for the purpose of peremptory challenge, a different issue than the admissibility of specific evidence.
Defendant complains of the wording of and claims error because the court gave an instruction on self-defense, stating he did not interpose that defense and offered no evidence, having stood upon his demurrer to the State's evidence. Defendant's brief does not specifically point out wherein Sec. 4083, R.S. 1939 (the only authority cited), discloses error. The thought that defendant interposed the defense could have been omitted, but the instruction was not reversibly erroneous therefor. Error, if any, in the fact of its giving was favorable, not prejudicial, in authorizing defendant's acquittal. State v. Wright (Banc), 352 Mo. 66, 74, 175 S.W.2d 866, 871[7, 10], held that where defendant's extrajudicial statements offered by the State raise the issue of self-defense, as in the instant case, an instruction thereon should be given. Defendant's counsel in the voir dire examination, hereinbefore mentioned, informed the court that a ground for asking the question discussed was that the defense was self-defense. See Secs. 4070, 4083, R.S. 1939.
We think, conforming to State v. Wright, supra, and giving defendant the most favorable construction of the evidence, an instruction on homicide by accident (Sec. 4380. R.S. 1939) was authorized. There were statements in a confession offered by the State, which, if believed, although taxing one's credulity, permitted of a finding that Dietmeyer drew a pistol and threatened defendant; that defendant wrestled with him for the gun; that a shot or shots were fired, and when it was over defendant, without knowing how it happened, had the gun. State v. Crowley, 345 Mo. 1177, 1182(1), 139 S.W.2d 473, 475, 476[1, 2]; State v. Bradley, 352 Mo. 780, 784, 179 S.W.2d 98, 100[3]; State v. Clinton, 278 Mo. 344, 348(III), 213 S.W. 841. 842[6].
Another point complains in general terms of an instruction covering several subject-matters in separate paragraphs. This complaint is too general.
The judgment is reversed and the cause is remanded. Westhues and Barrett, CC., concur.
The foregoing opinion by BOILING, C., is adopted as the opinion of the court. All the judges concur.