October 11, 1948.
1. CRIMINAL LAW: Homicide: Murder in Second Degree: Evidence Sufficient. There was evidence that defendant intentionally shot and killed the deceased, which was sufficient to support the verdict of murder in the second degree.
2. CRIMINAL LAW: Homicide: Evidence: Violent Disposition of Deceased: Admissible on Self-Defense Issue. Evidence that the deceased had the reputation for having a rough, violent or dangerous disposition was admissible on the issue of self-defense, defendant having testified that he had heard that the deceased was a "pretty rough customer."
3. CRIMINAL LAW: Homicide: Violent Disposition of Deceased: Instruction Improperly Refused. An instruction on the violent disposition of the deceased was improperly refused.
4. CRIMINAL LAW: Homicide: Battery Five Days Before: Manslaughter Instruction Not Required. Evidence of a battery with fists five days before did not require a manslaughter instruction, since there had been a sufficient cooling time as a matter of law.
Appeal from Jasper Circuit Court. — Hon. Walter E. Bailey, Judge.
REVERSED AND REMANDED.
Norman, Foulke Warten for appellant.
(1) Evidence of other misconduct or the commission of a separate offense, other than the alleged offense for which the defendant is on trial is inadmissible. The evidence admitted in this case by the court tending to prove the defendant guilty of window-peeping, was inadmissible and the admission of such evidence was prejudicial to the defendant and reversible error. State v. Leonard, 182 S.W.2d 548; State v. Garrison, 116 S.W.2d 23; State v. Donell, 18 S.W.2d 53; State v. Shobe, 268 S.W. 81; State v. Horton, 153 S.W. 1051; State v. Stray, 74 S.W. 846. (2) In a murder case, where the defense is self-defense, expert testimony of a physician, is admissible to show the defendant was weak, a cripple and in bad physical condition and unable to cope with the deceased, a strong, able-bodied young man, without the use of weapons. Such evidence was also admissible to show that the defendant was, more apprehensive of danger from an assault by the deceased than a normal person, in good health and younger in age would have been. Such evidence was also admissible to show the relative size, age, and strength of the defendant and the deceased. State v. Bowles, 146 Mo. 6; State v. Fielder, 330 Mo. 747, 50 S.W.2d 1031; State v. Clough, 327 Mo. 700, 38 S.W.2d 36; State v. Smith, 91 P. 511. (3) In a murder case, where the defense is self-defense, it is proper to show that the deceased bore a reputation of being a violent, dangerous, and lawless character, for the purpose of showing a reasonable apprehension of immediately impending danger on the part of the defendant, when attacked by the deceased. The testimony of the defendant as to his knowledge of the reputation of the deceased, for being a violent, dangerous, rough, lawless character, was rejected. So, also, was the testimony of the witness Seay, who testified that the deceased bore the general reputation of being a dangerous, violent, turbulent and lawless man. This evidence was proper. The defendant was entitled to have it before the jury as a part of his defense. State v. Naylor, 40 S.W.2d 1079; State v. Roberts, 242 S.W. 669; State v. Turnbo, 267 S.W. 847; State v. Jones, 134 Mo. 254; 30 C.J., sec. 465, p. 229. State v. Hayden, 83 Mo. 198. (4) The defendant was entitled to have the jury instructed that if they believed from the evidence that the deceased was of a rash, turbulent and violent disposition, and that defendant had knowledge of such disposition, then it is a circumstance for the consideration of the jury in considering the reasonable cause for defendant's apprehension of great personal injury to himself. The court admitted testimony of the defendant that he knew of the reputation of the deceased for turbulence and violence. Even though he refused to permit the defendant to offer the evidence proffered as to the general reputation of the deceased, the defendant was still entitled to have the jury instructed to consider this circumstance in determining if the defendant had reasonable cause for apprehension of injury to himself, when the deceased attacked him. State v. Hicks, 27 Mo. 588; State v. Barrett, 144 S.W. 485. (5) The details of former difficulties between the defendant and the deceased, and collateral matters having no connection with the offense charged, are inadmissible. The State was only entitled to show that there was ill feeling between the parties, but was not entitled to go into the details of the cause for the ill feeling and try that issue instead of the offense with which the defendant was charged. The admission of such evidence simply tended to confuse and mislead the jury, directed their attention to the consideration of the question as to who was in the right or wrong in such previous difficulties concerning which there was no one upon trial. In several different instances throughout the course of the trial and at different places in the record, the State offered such evidence, which was admitted, and which was prejudicial to the defendant's right to a fair trial. These instances will be enumerated in the argument. It is sufficient here to state the rule as set out above. State v. Birks, 199 Mo. 263; State v. Heath, 121 S.W. 149. (6) The admission of the testimony of Dorthy Strange, relating to an occurrence between her and the defendant, in which the deceased had no part, and which occurred at an undetermined time prior to the shooting, was reversible error. This testimony was inadmissible for any purpose and had absolutely no connection whatever with the case. State v. Lewis, 118 Mo. 79; State v. Swearengin, 269 Mo. 177, 190 S.W. 268; State v. Maddox, 98 S.W.2d 535. (7) The prosecuting witness, having testified as to statements of the deceased, brought the character of the deceased into issue in the case. After this was done, testimony and records relating to previous felony convictions of the deceased were admissible for the purpose of impeaching his credibility, relating to the statements of his repeated by his wife into the evidence. State v. Dipley, 147 S.W. 111. (8) The evidence of the true identity of the deceased, as derived from the correspondence with his sister, Alice Goldberg, of New York City, was admissible. The identity of the person killed with the person alleged to have been killed must be fully established. 30 C.J.S. 532, p. 288; Gordon v. Metropolitan Life Ins. Co., 176 S.W.2d 506. (9) The defendant was entitled to have the jury instructed on manslaughter under the facts in the case where there was the showing of hot blood between the parties at the time of the shooting. State v. Ferguson, 182 S.W.2d 38; State v. Creighton, 52 S.W.2d 556, 561; State v. Sterling, 72 S.W.2d 70. (10) Where the State introduces in evidence the admissions of the defendant, it is bound by all exculpatory statements contained therein, unless they are shown by the evidence to be true. The State in this case having offered in evidence the statements of the defendant as to the occurrences on the day of the shooting, was bound by all the exculpatory statements also appearing therein. The defendant was entitled to have the jury so instructed because that is the law and it was material to his defense in the case. The instruction offered by the defendant to that effect should have been given and it was error to refuse it. 16 C.J., sec. 1516, p. 737; Jones v. State, 15 S.W. 990. (11) After the showing made by the defendant that the sheriff had not been properly sworn, and that he was a witness in the case, the motion for the appointment of elisors should have been sustained. It was error to overrule it. State v. Leabo, 89 Mo. 247.
J.E. Taylor, Attorney General, and John S. Phillips, Assistant Attorney General, for respondent.
(1) No error was committed by the court in the rejection of the testimony of Frank Seay, as to deceased's reputation. State v. Kennade, 26 S.W. 347, 121 Mo. 405; State v. Carroll, 62 S.W.2d 863; State v. Petit, 24 S.W. 1014, 119 Mo. 410. (2) The court did not commit error in its refusal to give defendant's Instruction 2. See authorities under Point (1), supra. (3) The court did not commit error in refusing to permit the defendant to introduce evidence that the deceased's name was George Unterberger. State v. Sartino, 115 S.W. 1015, 216 Mo. 408; State v. Sweeney, 56 Mo. App. 409. (4) The court did not commit error in refusing to admit in evidence the deposition of Emma Tonnies, Exhibits C, D, E, F, offered by defendant. State v. Naylor, 40 S.W.2d 1079, 328 Mo. 335; State v. Nenninger, 188 S.W.2d 56, 354 Mo. 53; State v. Roberts, 242 S.W. 669, 294 Mo. 284; State v. Woods, 204 S.W. 21, 274 Mo. 610; State v. Tabor, 95 Mo. 585; State v. Barrett, 144 S.W. 485, 240 Mo. 161; State v. Green, 129 S.W. 700, 229 Mo. 642.
The appellant was convicted of murder in the second degree in the circuit court of Jasper County and his punishment was assessed at 20 years' imprisonment in the state penitentiary.
 Appellant contends that the evidence is insufficient to sustain the verdict. We will therefore set forth the facts most favorable to the State to determine this question. The appellant was the owner of a three-apartment building facing on Pearl Street in Joplin, Missouri. The downstairs constituted  one apartment and it was occupied by the appellant; the upstairs was divided into two apartments. The east apartment was occupied by the deceased, Robert Turner, and his wife, and consisted of three small rooms and a bathroom. It had hardwood floors which enabled a person in appellant's apartment to hear a person walking about in the apartment above. In addition to the wooden front door to deceased's apartment, there was a screen door which, upon being released by a person passing through it, would slam. There was a sidewalk leading from deceased's apartment to the sidewalk along the street. There was also a sidewalk leading from the front door of the apartment occupied by the appellant.
Deceased and his wife rented the apartment furnished in the early part of October, 1945. Almost immediately after they moved into this apartment the appellant insisted on and did make frequent officious inspections of the apartment for the pretended purpose of examining the ice box, faucets, bath fixtures and furniture. Deceased and his wife objected to these intrusions, but he continued to make inspections, even though the deceased and his wife were absent. During one of the inspections in the middle of October of that year he discovered Mrs. Turner's niece who was visiting her for the afternoon. He became highly incensed and demanded to know who she was and ordered her from the building. Later, he ordered the deceased and his wife to vacate the apartment and attempted to rent it to a third party from whom he accepted a month's rent which he later had to return. Appellant gave deceased a notice to vacate, but this notice was held by the local rent control board to be insufficient to comply with the rent regulations. Later, he made two other trips to the board seeking the right to eject deceased and stating as reasons therefor matters personal to him. He was told by the rent officials that none of the reasons were sufficient under rent regulations to evict deceased. As he was leaving the office he said, after a heated discussion, "Well, I will get the son-of-a-bitch out."
On December 22, 1945, appellant made another tour of inspection in the absence of deceased and his wife and as he left he picked up three cushions from the sofa and took them with him. This rendered the sofa useless to deceased and his wife. When deceased came home from work, he and his wife went to the front door of the appellant's apartment and knocked. The appellant came to the door and deceased asked him to return the cushions so they could use the sofa they had rented from him. Then the appellant, who was much larger though older than the deceased, struck him in the face, causing his mouth to bleed. They clinched in the front door and, according to appellant's wife, she pulled the men back into the front room of her apartment and they fell upon the floor. A passerby separated them and the deceased and his wife returned to their own apartment.
The appellant's version of the trouble was that deceased was the aggressor, that he knocked the appellant down, beat him with his fists and "kneed" him, fracturing ribs on his left side, although he did not seek or receive medical treatment for these injuries. The county physician testified that appellant had not sustained such injuries. The appellant admitted that after the encounter he always went armed with the Smith and Wesson revolver with which the homicide was committed.
On Thursday, December 27, 1945, the deceased ate breakfast with his wife after which he walked around the apartment for a while. Then between 9:30 and 10:00 o'clock, as was his custom, he left to go to his place of business. He passed through the front door, the screen door slammed, and he descended the steps to his walk and started east toward his car which was parked at the Pearl Street curb. He was looking down as he walked, smoking a cigarette, and had his car key in his hand. Meanwhile, the appellant left his apartment by the way of the front door but he did not let the screen door slam. He stated he was going to look at the furnace, though he could have gone directly from his apartment to the basement. He had his revolver in the right hand pocket of his overcoat. He started north along the flagstone walk close to the house and toward the northeast corner of the building, which corner the deceased was approaching from the west. Deceased passed the corner  of the house a few steps until he was about five feet from his car when the appellant made some noise or movement which caused the deceased to turn his head and body to some extent to see what was behind him. As he did so the appellant fired a shot from his revolver that struck the deceased in the right eye. He died instantly.
The appellant made various statements to the officers in which he claimed he shot deceased in self defense. He contended that when deceased turned he grabbed appellant and reached toward his right hip pocket. It later developed there was no weapon there, nor did he have one upon his person. In fact, he did not own one. There were no powder burns upon deceased.
There is substantial evidence to support the verdict of guilty of murder in the second degree. The appellant admitted that he shot and killed the deceased intentionally. Evidently the jury did not believe that he killed the deceased in self defense. This assignment is without merit.
The appellant assigns as error the fact that the trial court refused to admit the testimony of Frank Seay that deceased had a "reputation for being a violent and turbulent man and having that kind of a disposition." It is the State's contention that this evidence was properly rejected because it was not shown that appellant knew of such reputation at or prior to the time of the killing. Appellant was placed upon the stand prior to witness Seay. While upon the witness stand the appellant was asked if he had heard deceased's reputation discussed with regard to whether deceased had rough, violent or dangerous disposition. The State objected to this question because it was leading and because of his previous testimony which the court had told the jury to disregard. The State's objection was sustained. Then the appellant was asked if up to the time of the shooting he had heard his reputation discussed. He answered that he had heard deceased was a "pretty rough customer." On a motion to strike by the State, the court overruled the objection and stated that it would permit the answer to go in. We hold that appellant's answer was equivalent to showing that he knew of deceased's reputation as a violent, turbulent man and, therefore, Seay's testimony should have been admitted. Evidence that deceased bore the reputation of having a turbulent or violent disposition or character is competent where, as here, the defense is self defense. State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079; State v. Turnbo, 267 S.W. 847; State v. Roberts, 294 Mo. 284, 242 S.W. 669.
We also believe the court should have given instruction No. 2, which is as follows:
"If the jury believe from the evidence that the deceased was of rash, turbulent and violent disposition and that defendant had knowledge of such disposition, then it is a circumstance for the conconsideration of the jury in considering the reasonable cause for defendant's apprehension of great personal injury to himself."
The identical instruction was refused in the case of State v. Hicks, 27 Mo. 588. We held this to be reversible error.
Appellant also contends that his request for an instruction on manslaughter should have been given. Appellant recognizes the law that opprobrious and threatening words accompanied by gestures do not reduce the grade of homicide — nothing short of an actual battery permits the inference of provocation and passion reducing the offense to manslaughter (State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38). But he contends that such battery did take place on Saturday preceding the killing on the following Thursday and, therefore, an instruction on manslaugter should have been given.
"But even a state of blood sufficiently provoked to destroy malice is of no avail to reduce murder to manslaughter, if a cooling period has intervened. In this case such a cooling period intervened. The law will not afford relief of any kind to one who, sufficient time for reflection elapsing, permits his anger to cause him to do wanton and cruel acts against another." State v. Farris, 6 S.W.2d 903, l.c. 905-906. The cooling time in this case was from Saturday to the following Thursday. Less time has been held by us to be sufficient time as a matter of law for the cooling time. State v. Robinson, 353 Mo. 934, 185  S.W.2d 636; State v. Davis, 34 S.W.2d 133; State v. Schrum, 255 Mo. 273, 164 S.W. 202. We hold that the court properly refused the requested instruction on manslaughter.
Having reached the conclusion that the court erred in refusing to admit the testimony of witness Seay and its failure to give appellant's requested instruction No. 2, we will not discuss other assignments of error. It follows that the judgment should be reversed and the cause remanded for a new trial. It is so ordered. All concur.