The State v. Banks

• Decision Date: 21 November 1893
• Citation: 23 S.W. 1079,118 Mo. 117
• Parties: The State v. Banks, Appellant
• Court: Missouri Supreme Court

23 S.W. 1079

118 Mo. 117

The State v. Banks, Appellant

Supreme Court of Missouri, Second Division

November 21, 1893

Appeal from Johnson Criminal Court. -- Hon. John E. Ryland, Judge.

Affirmed.

R. F Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.

(1) The uncontradicted testimony of all the witnesses, save the defendant, presents a case of murder in the first degree, and establishes the guilt of defendant of that offense beyond all question, and the court was authorized under that testimony to submit the question of defendant's guilt or innocence to the jury, and hence the suggestion of appellant's counsel in their motion for a new trial, that the verdict is against, and unsupported by, the testimony, is not well taken, and must be determined against them. State v Orrick, 106 Mo. 111; State v. Moxley, 115 Mo 644; State v. Jackson, 106 Mo. 181. (2) No error was committed by the trial court in overruling defendant's application for a continuance. State v. Dusenberry, 112 Mo. 277; State v. Sneed, 91 Mo. 552. There must be, and is, accorded to the trial judge largely the discretion of passing upon the application of a defendant for a continuance, and unless it clearly appears that this discretion has been abused, this court will not interfere. State v. Gamble, 108 Mo. 500; State v. Marshall, 115 Mo. 383; State v. Steen, 115 Mo. 474; State v. Carter, 98 Mo. 176. As to the witness Frazier, the record shows that he was brought into court and tendered to defendant; that the court announced to the defendant's counsel that the witness was present, and they would be permitted to examine him; this they declined to do.

OPINION

Burgess, J.

-- Defendant was convicted at the April term, 1893, of the criminal court of Johnson county, of murder in the first degree for shooting with a pistol and killing one Isaac Palmer at Sedalia, Pettis county, on the twenty-ninth day of August, 1892. The indictment was found in the latter county where the offense was committed, and the venue subsequently changed on the application of defendant to the criminal court of the county of Johnson.

At the April term, 1893, of the Johnson criminal court, the defendant filed his third application for a continuance on the ground of the absence of witnesses and the second application on account of the absence of one John Williams and one Nelson Frazier, which was by the court overruled. An attachment was issued for Frazier and he was brought into court during the trial. The case is here on defendant's appeal. No brief has been filed on behalf of defendant.

The evidence discloses the following state of facts: On the twenty-ninth day of August, 1892, several negroes had congregated in the "Main street" pool room at Sedalia. This pool room was conducted by two negroes, and in it was a pool table, billiard table, card table, a stove and some chairs; among several negroes present were the defendant, Banks, and the deceased, Palmer; immediately before the difficulty, the deceased was sitting on the pool table in the south side of the pool room, and defendant was at the northeast corner of the pool room; after some talk between the deceased and defendant about a game of craps, the defendant started walking in the direction of the deceased with a drawn revolver in his hand saying, "You have been bulldozing me all the time." When deceased replied he "hadn't been doing anything to him." Defendant said, "I have a notion to shoot you," put his pistol in his pocket and went around where deceased was sitting on the table, and said: "I will fight you a fair fist fight if you want to fight," when deceased replied: "I do not want to fight; I do not want to fight you," and as defendant advanced toward deceased, deceased got down off of the table and started in the opposite direction, toward the door leading into the street. Defendant quickened his step and overtook him saying: "Don't you believe I will kill you?" and with his left hand pushed defendant's head to one side, and with a revolver in his right hand fired a shot that entered the right side of defendant's head, killing him instantly. Defendant then ran out of the back door into the alley, and several blocks away where he attempted to hide himself in a hedge fence, where he was discovered by the chief of police and arrested. Upon being secured, a revolver with four loaded chambers and one empty shell was found upon his person. Defendant attempts to excuse the murder on the theory that he fired the shot in self-defense, and testifies that the deceased was advancing upon him at the time he fired the shot. In this statement he is contradicted by every eye witness to the shooting. Witnesses for defendant testify that the character and reputation of the deceased for peace and quiet was bad, and that he was generally regarded as a dangerous man. Had previously shot a man and had made threats against defendant which had been communicated to him. Upon the arrival of the constable a few minutes after the shooting, the body of the deceased negro was searched, and no weapons of any kind were found upon his person, nor in the pool room about him. Upon the case made by the testimony, the court instructed the jury as to murder in the first and second degrees and self-defense.

The first point made in defendant's motion for a new trial for our consideration is, that the verdict is against the evidence. It seems, from a careful reading of the evidence that this position is not well taken, as it discloses a clear case of murder in the first degree, unless the defendant at the time of the homicide was acting in self-defense which was a question for the jury under the...