State v. Meadows

• Citation: 56 S.W. 878,156 Mo. 110
• Parties: STATE v. MEADOWS.
• Decision Date: 08 May 1900
• Court: United States State Supreme Court of Missouri

56 S.W. 878

156 Mo. 110

STATE v. MEADOWS.

Supreme Court of Missouri, Division No. 2.

May 8, 1900.

HOMICIDE — INDICTMENT — INSTRUCTIONS — APPEAL AND ERROR.

1. An assault being a necessary ingredient of the crime of murder wherein a battery occurs, an indictment is fatally defective which fails to set forth the name of the person upon whom the assault was made.

2. Where the evidence shows that defendant was guilty of murder in the first or second degree, or that the killing was done in self-defense, a failure to instruct as to murder in the fourth degree is not error; and this particularly where no such instruction was requested.

3. To make available as error the failure to give proper and needful instructions, exceptions must be taken at the time the instructions are given.

Appeal from circuit court, Christian county; James T. Neville, Judge.

John S. Meadows was convicted of murder in the second degree, and he appeals. Reversed.

Watson & Gideon and Hayes, Thornsberry, Walker & Joins, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

On the 20th day of April, 1899, defendant was convicted in the circuit court of Christian county of murder in the second degree, and his punishment fixed at 10 years' imprisonment in the penitentiary, for having theretofore, at said county, shot and killed, with a Winchester rifle, one Stephen Bilyeu. After unsuccessful motions for a new trial and in arrest, defendant appeals.

The homicide for which defendant was convicted occurred over the removal of a fence of which deceased, Stephen Bilyeu, and defendant were the joint owners. They owned adjoining farms, which were separated by this fence. When the fence was originally built, Bilyeu furnished the ground poles, stakes, and double riders, six pieces to each panel, and defendant, Meadows, furnished six rails to each panel, which composed the body of the fence. Trouble arose between the parties about repairing the fence, and defendant, by notice in writing, dated May 4, 1898, notified Bilyeu that six months from that date he intended to move his part of said fence. This fence, starting at a point west, ran east a distance, thence south about 200 yards, and thence east again; the entire length being 250 to 300 yards. About two weeks before the difficulty, Stephen Bilyeu tore down and moved away that part of the fence which ran north and south. The day the notice expired, Meadows took his gun and ax, and went to the fence, where he was met by Stephen and Peter Bilyeu, his son, each of whom had a gun, which they drew upon Meadows, and, by abuse and threats of violence, compelled him to leave there. On the day of the homicide, Meadows, assisted by several of his neighbors (among them, a brother and a brother-in-law of Steve Bilyeu), commenced to remove the fence; giving to Meadows the six rails put in by him, and giving to Bilyeu the ground poles and stakes and riders put in by him. While the hands hired by Meadows were at work tearing down and rebuilding this fence at the east end, and defendant and his brother Robert were at work at the west end, near the house of Meadows, Steve Bilyeu, the deceased, and his son Pete, came to the east end with their guns, and got into an altercation with the hands at work for Meadows. They also had a wagon for the purpose of hauling away the fence. They were cursing and threatening, and forbidding the hands to move the fence, in such loud and boisterous language that they were heard by defendant where he was working, and by another witness some distance away. While this difficulty was in progress, James Bilyeu, a son of deceased, and Elizabeth, his wife, were seen by defendant going to the scene of the difficulty, carrying another gun; and defendant, having heard of threats to kill him if he moved the fence according to the notice, quit his work, went to his house, got his gun (a Winchester rifle) and his brother's shotgun, and they started to the east end of the fence, where the disturbance was in progress. When defendant got there, Steve Bilyeu had counted 58 panels of fence, said it was his, and threatened to kill any d___d son of a b___h that touched a rail. Defendant then said to his hands, "All who are working for me, come to the other end of the fence and go to work," and turned and walked away; his hands following him. A number of witnesses testified that, when Meadows started away, Steve Bilyeu fired at him, and was in the act of firing the second barrel of his gun when Meadows turned and shot him. The witnesses for the state say that, as Meadows was walking away, his wife, who was some distance away, called out: "Kill them, Bud, or die for your rights. Do not let them steal your labor," — and that...