The State v. Chenault

Decision Date19 May 1908
Citation110 S.W. 696,212 Mo. 132
PartiesTHE STATE v. JOHN CHENAULT, Appellant
CourtMissouri Supreme Court

Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.

(1) The information properly charges murder in the second degree, and is sufficient; it supports the verdict of manslaughter in the second degree. Sec. 1816, R. S. 1899; State v. Lowe, 93 Mo. 547; sec. 2369, R. S. 1899; Kelley, Crim. Law & Prac sec. 503, p. 328. (2) At the trial, defendant objected to the giving of all the instructions and saved his exceptions. Objection was not made at the trial that the court failed to give all proper and needful instructions. If the court failed to instruct the jury upon all questions of law arising in the case, which were necessary for the information of the jury in giving their verdict, exceptions should have been saved at the time of such failure. State v. Cantlin, 118 Mo 111. (3) The first motion for new trial filed, is the only one which can be considered by the court. According to the record, the verdict was rendered upon Saturday, April 13 1907, at 12:15 a. m. Upon Wednesday, April 17, 1907, the first motion for new trial was filed. This was within time. The amended motion for new trial was filed upon Friday, April 19, 1907. This amended motion for new trial not being filed within four days of the verdict, was filed too late and cannot be considered. Sec. 2689, R. S. 1899. (4) The motion for new trial does not properly save an exception to the action of the court in refusing to rebuke the prosecuting attorney on account of the remarks made by him in arguing the case before the jury. The only objections counsel made as to the remarks of the prosecuting attorney were (1) when reference was made to the wound on defendant's hand. Counsel for the defendant stated that there was "no evidence whatsoever about any other trial." The court answered by saying that the defendant himself answered the question. (2) The other objection made by counsel for the defendant was the remark made by Judge Raney that it is "about time to put a stop to the killings and murders in this country." Objection was made by counsel to this remark, but the bill of exceptions fails to show that he either asked the court to rebuke the prosecuting attorney for the remark, or saved an exception to the action of the court for failure so to do. Consequently, counsel is in no position to raise any question as to any of the remarks made by the prosecuting attorney. (5) The Supreme Court will not weigh evidence, where there is sufficient evidence, if believed by the jury, to justify their verdict of conviction. State v. Richmond, 186 Mo. 83; State v. Lorts, 186 Mo. 122.

OPINION

BURGESS, J.

On January 15, 1907, the prosecuting attorney of Butler county, Missouri, filed an amended information in the circuit court of said county, charging the defendant with murder in the second degree, in having shot and killed, with a pistol, one John Hargrove, also known as John McCall. The case was first tried on January 23, 1907, when the jury disagreed and were discharged. The second trial occurred on April 12, 1907, which resulted in the conviction of defendant of manslaughter in the second degree, his punishment being assessed at three years in the penitentiary. Defendant filed motions for a new trial and in arrest, which were overruled by the court, whereupon defendant appealed.

The testimony showed that on the afternoon of December 29, 1906 the defendant and deceased were in and around Wright's saloon in Poplar Bluff, Butler county, Missouri. The deceased was in the saloon, talking to a friend, and the defendant was outside talking to some one, and gesticulating and "making faces" at the deceased, who was looking at him through the glass door of the saloon. Deceased asked E. E. Fee, to whom he was talking, if he did not see the defendant making motions and nodding his head towards him. Fee said he did, but advised the deceased not to notice the defendant as he didn't amount to much. The deceased, however, stepped to the door and asked the defendant what he was making faces at him for. The defendant said he was not making faces at him, but that he was not afraid to do so. They began arguing about the matter, and each called the other a liar, other vile language being also used by both. The deceased walked towards the defendant, when the defendant backed away, reached for his revolver, which was seen by several witnesses, and told the deceased to keep off. Then the deceased turned and ran quickly into the saloon for a shot-gun of his which had been loaned by him to a hunter and which had been left at the saloon for him a few days before. In the meantime, the defendant went into an alley on one side of the saloon, and crouched down on the lower steps of a stairway which led up to the second story of a building immediately across the alley from the saloon. The deceased came out the side door of the saloon, with the gun in his hands, but he was immediately stopped by one D. H. Black, who tried to take the gun away from him and prevent him from firing at the...

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