The State v. Vest
| Decision Date | 06 January 1914 |
| Citation | 162 S.W. 615,254 Mo. 458 |
| Parties | THE STATE v. FRANK VEST, Appellant |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court. -- Hon. William C. Ellison, Judge.
Affirmed.
W. A Blagg, C. R. Ellison, J. S. Shinnabarger, Stokes & Stokes and R. L. Minton for appellant.
John T Barker, Attorney-General, and W. M. Fitch, Assistant Attorney-General, for the State.
Under a prosecution for murder in the first degree, defendant was convicted of murder in the second degree and his punishment assessed by the jury at ten years in the penitentiary. He is a farmer, twenty-six years of age, living on a farm where he was born and has lived continuously. At the time of the tragedy he had been married about four years. He had one child about two years old. The wife and boy had both been sick, and were convalescent; the wife being able to do part of the housework. She was assisted by Pearl Barker, a girl of about twenty years of age, who had been reared in the neighborhood and who had been with this family for about five weeks.
Guy Stanley, the deceased, was a young man, "big and strong," who had been employed on the farm for several months; he had been reared in the community. He was addicted to excessive drinking. The defendant used intoxicants, but the evidence does not show that he became intoxicated. The defendant and the deceased were congenial, going out together on trips to town.
The killing occurred on Sunday, December 3, 1911, at about seven-thirty in the evening.
Glenn Burge, a sixteen-year-old boy and cousin of the defendant, testified that in watermelon time prior to the killing, Stanley told him in language not proper to quote here, that he was going to have sexual intercourse with the wife of the defendant, and that, if the defendant came in, there would be a shooting match; and that the deceased made a similar statement in the potato patch when they were digging potatoes; and also testified that the deceased was in the habit of carrying a revolver.
Bert Stewart testified that about a week before the killing he was going to town with the deceased in a buggy and that he told Stanley that if he was bothering Mrs. Vest any he had better go away from there or he would get his head shot off; and that Stanley fired five shots from his revolver and said that was a game two men could play at. There was evidence tending to impeach the reputation of this witness. Neither of those witnesses told anyone about what the deceased told them until after the killing.
Glenn Burge and Pearl Barker testified that on Friday evening, before the killing, in the absence of defendant, in the kitchen of the Vest home, and while Mrs. Vest was in the adjoining room, Stanley came in intoxicated, having a pistol, indulged in vulgar talk, said that he could have sexual intercourse with Pearl Barker, and made other offensive statements. The evidence tended to show that this language of the deceased was overheard by Mrs. Vest. The evidence does not show where either the defendant or Stanley stayed all night that night. After the scene in the kitchen, Stanley left, and Mrs. Vest testified that Pearl Barker took charge of the pistol. On Saturday, the defendant and Stanley drove together to the town of Craig, returning about ten o'clock that night. Mrs. Vest and Pearl Barker testified that Stanley was drunk and came into the room where they were in bed together, while the defendant was in the kitchen, and that he lay down across the foot of their bed and pinched their limbs. They made him get up and told him to go to bed. He got up, but lay down on the floor in their room; and the defendant had some difficulty in getting him to bed in the adjoining room.
About nine o'clock Sunday morning, the defendant and Stanley left home afoot to go to Bigelow, about three miles distant. Stanley returned to dinner. The defendant took dinner at the home of Ed Burge, his uncle, about three-quarters of a mile distant. There were several visitors at the Vest home that Sunday afternoon, including a neighbor, Mrs. Smith. There was some card playing, and the time appeared to be pleasantly spent as to all parties concerned, including Mrs. Vest, Pearl Barker and Stanley. Mrs. Vest and Pearl Barker testified that during the afternoon Stanley in a jocular way spoke of having pinched them the night before, and that he acted like he was going to pinch Mrs. Smith; that she said for him to behave himself, saying that she was too old a lady for him to be fooling around. About six o'clock everyone left the Vest home, except Mrs. Vest, the baby and Stanley. Just after dinner that day, the defendant, his uncle and Lester Burge, his cousin, drove across the river to Fargo, Nebraska, and were about twenty minutes in a saloon where they drank a beer.
Lester Burge testified that they got back from Fargo and he took Vest in a buggy to Vest's home, letting him out at the gate about one-eighth of a mile from defendant's house, about seven o'clock. That as they parted, defendant in a jocular way said, "I have blood in my eye."
Alex Cunningham testified that he heard the defendant make the same statement while on the road that night. After leaving the defendant at his farm gate, Lester Burge drove back home and was putting up his horse when a phone message was received at the Burge home from Vest, calling them down to the Vest home. Just at that time Pearl Barker and Lee Blevins, who had gone to church together, in a buggy, finding there were no church services, reached the Burge home. They and Mr. and Mrs. Burge drove hastily in the same buggy to the home of the defendant. Defendant was at the yard gate, about thirty feet from the house, with a magazine shotgun in his hand. They found deceased lying on the floor of his bedroom, in great agony. He was placed on the bed. The defendant had telephoned for a doctor and for the deputy sheriff to bring the coroner. Dr. Hogan reached there about eight o'clock. He testified that he found two or three gunshot wounds in the back about the seventh rib, on the right of the spine and two or three inches apart, both indicating that the discharge of shot had gone straight into the lungs. There was another wound in the middle third of the left arm, and indications that the shot were in the flesh of the shoulder. All the wounds were about the size of a silver dollar, and were made by a shotgun. He saw the bedclothes lying on the bed; one of the bed covers was white; there were holes through the bedclothes corresponding to the wound on the body. Dr. Hogan stated that the white bedcover was powder stained, and another witness testified that the holes in the bed-covers were nearer one end than the other. The doctor stated that a few minutes after he arrived Stanley told him that he had been shot to death. Morphine and atrophine were administered hypodermically to relieve his sufferings. The doctor testified that from about an hour after being given the medicine the sufferer would be at times unconscious, but, when roused and asked a question, would come to himself and seem to speak in a rational way; and that his condition remained such until sometime next forenoon. Several witnesses testified to the same effect. The next morning he stated that if blood poison did not set up and they would take good care of him he would get well.
The witness Adams testified that he got to Stanley's bedside early in the night and asked him if he realized his condition, to which Stanley answered that he was "shot all to hell." Witness said to him, "Guy, they tell me you can't live but a little while," to which Stanley answered, "I hate to quit in the middle of the game." During the night he said that he was "about all in," and said to his brother and sister that they would soon have no brother.
Tom Bridgeman said to him, "Guy, what was the trouble between you and Frank?" He said, "There wasn't any trouble." Then he asked about insulting his wife, and Guy said, "Nothing more than pinched her leg."
Adams further testified that Bridgeman asked Stanley how Frank came to shoot him and he said, "Frank came to the door and says, 'Guy, I am going to shoot you,' or 'kill you,'" and that he, Stanley, answered, "I wouldn't do that." At another time, deceased said that he answered defendant by saying, "Help yourself, go to it." Stanley stated that the defendant then opened up the pump-gun on him. Tom Bridgeman's testimony was to the same effect. Bridgeman further testified that the deceased said, "I was lying on my right side with my back to the door and I was about half asleep and had been in bed but a short time."
Mrs. Vest testified that just after six o'clock on Sunday evening after the others had been gone awhile, she was putting the baby to sleep and the following occurred:
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