Gray v. Earls

• Decision Date: 06 April 1923
• Docket Number: No. 22857.,22857.
• Citation: 298 Mo. 116,250 S.W. 567
• Parties: GRAY et al. v. EARLS et al.
• Court: Missouri Supreme Court

250 S.W. 567

298 Mo. 116

GRAY et al. v. EARLS et al.

No. 22857.

Supreme Court of Missouri, Division No. 1

April 6, 1923.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Leslie Gray and others, by their guardian, Ella Gray, against A. T. Earls and another. Judgment for defendants, and the plaintiffs appeal. Reversed and remanded.

Ward & Reeves, of Caruthersville, for appellants.

McKay & Medling, of Caruthersville, H. E. Doerner, of Steele, and C. E. Bragg of Caruthersville, for respondents.

LINDSAY, C.

On the 25th day of September, 1919, one Ollie Gray died as the result of gunshot wounds inflicted upon him on that day by respondents. On June 16, 1920, the appellants, minor children of deceased brought this suit for damages in the sum of $10,000 in the circuit court of Pemiscot county by their guardian, the mother of appellants, and widow of Ollie Gray, who had not in her own behalf brought suit on account of the death of her husband. There was a verdict for defendants by, ten jurors, and from the judgment thereon plaintiffs have appealed by due steps taken.

The petition charged that the defendants "wrongfully" fired and discharged a loaded gun at and against Ollie Gray, "thereby wrongfully and without any just cause or excuse injuring and wounding the said Ollie Gray, from which injuries and wounds and unlawful acts of the defendants" he immediately thereafter died. The petition did not charge negligence, nor did it set forth the particular circumstances under which the shooting was done by defendants. The separate answers filed by the defendants were identical in character, each consisting of (1) a general denial, (2) a plea of self-defense, and (3) a plea that the shooting and killing was caused by the negligence and carelessness of Ollie Gray directly contributing thereto. There was no specification of facts constituting either of these defenses. Plaintiff's reply was a general' denial. Defendants objected to the introduction of any evidence upon the grounds that the petition failed to state a cause of action against defendants, or either of them, and that there was, a misjoinder of parties defendant. The objection was overruled, and defendants excepted.

The shooting occurred at night, and near the cabin of one Tom Collins, a negro. The persons present were defendants, Ed Stout and Alvin Earls, a man named Hannah; Ollie Gray, and Tom Collins. All of them had crops in one inclosed field of about 160 acres adjacent to the cabin of Tom Collins, and all lived near by. This negro had been stealing corn from the fields of the others, and they had been watching to catch him stealing. All four of them had been watching the negro on the afternoon and night of the day before the day on which the shooting occurred. On the night before they had heard him pulling corn in Gray's field, and heard later the sounds as of a sack being thrown down and the feeding of hogs. Defendant Earls testified that on that occasion they heard near the hog pen the sound of talking, and Ollie Gray said it was "Knox and Tom," Knox being also a negro and living near to the other. They agreed to watch again the following night. On the next afternoon Hannah and Earls watched the negro Tom Collins, and noticed be was wearing a white shirt. The arrangement was that the four of them should meet again that night, at the place they had met the night before. The defendants and Hannah, all armed with shotguns, went that night to the placed agreed upon, which appears to have been in the field of defendant Stout. For some reason not appearing Ollie Gray did not join them there. He went alone. On that afternoon Earls says he told Gray they were going armed and to bring his gun, and that Gray replied it was out of commission. Earls suggested he get one, but Gray did not promise to do so. He went unarmed, and apparently into his own field of corn, to watch for the negro. The three others watched for the negro Tom Collins from a point not far from his cabin, and not far from the field of Ollie Gray. Toward 11 o'clock the negro, Collins, came out singing. They heard him say, "It feel like a 16 year old to-night." He went toward the cornfield of Ollie Gray, and they heard a sound as of some one pulling corn. They moved up to a path by which"they expected the negro to return, hut, as he did not return that way, and hearing sounds from the negro's hog pen, near his house, as of corn being thrown down, and as if hogs were being fed, they moved up that way. Earls and Hannah told defendant Stout, who was hard of hearing, of the sounds, and placed him between themselves so he might hear what was said by the others. They went forward. They came to where there were some boxes or coops piled up, and there were some trees about. It was very dark. As they passed the boxes they saw the forms of two men. The negro Tom Collins was nearest to Hannah, who advanced quickly and threw his gun down on the negro, telling him to hold up his hands. This the negro did, saying, "They are up, Mr. Hannah." This was heard by Earls, who was on the right, and nearer than Hannah was to the man, who proved to be Ollie Gray, who was to the right of, and several feet distant from the negro. Earle was nearest Gray, who was standing, or slowly walking up at that time. The two defendants, moving up, presented their guns at the other man (Gray), and Earls called three or four times, "Throw up your hands" or "stick up your hands, Tom." This was heard by Stout, and also by Hannah, whose attention was directed chiefly to the negro. Gray had his hands down by his side, but it was too dark to tell whether they were in his pockets or not. He was dressed in blue or dark clothes.

The defendant Stout described what happened from the time they saw the two men as follows:

"I could not distinguish who anybody was, or the man it saw over there, because it was dark, and I could not tell only the bulk of the man. I didn't say anything to him. I beard Alvin [Earls] say, `Hold up your hands,' four or five times, `Tom.' Then this man put his hands in his pockets and came toward us. When he moved, he had both hands in his pockets. I never heard him say anything. When the shots were fired, 14: guess he was somewhere within 9 or 10 feet of me. I shot because I thought he was the negro, and if he got to the house I considered he would get me, any of us if he could."

Cross-examination:

"It was a dark night. I couldn't tell then whether it was a white man or a nigger. He was kinda stepping towards us. He was fronting us, kinda walking down towards us in the direction of the negro house, and I was afraid he would get to the negro house and shoot me. I don't hardly know how far he would have had to go from where I saw him over to the nigger's house; might have been 16 feet, maybe 20, somewhere between 10 and 20 feet; I didn't measure it. The best I could tell he was walking kind of sideways toward the house, but still facing us boys. He did not have a gun in his hand; he had his hands in his pockets; the best I could tell they were in his pockets. I shot because I thought if he got to the house he would kill us all. I can't say if he had a gun on him. I saw the man that was coming towards me, and I didn't hear him say anything. Yes, sir; I heard Earls tell him to stick up his hands four times, and when he didn't stick up his hands Earls shot, and then I shot."

The defendant Earls described it as follows:

"We waited there for some little while, and we heard the nigger come up singing around, said he felt like a 16 year old, and then he went on out and we heard him breaking corn out in the field, which was Ollie's field. We then crossed over in front of the lot—crossed the corner of the nigger's yard. There was a path leading by there that we thought the nigger would have to come by us to get there, and he didn't come by. After waiting there awhile, we heard him throw his corn in the hog pen in the yard. Mr. Hannah took to the left, and we taken to the right. I seen two men there, the best I can recall, and the one that proved later to he Ollie was standing out like down that way from me. As I came around the boxes around that way, I called him Tom, and told him to stick up his hands. I says—at that time he began to kind of sidle down this way (indicating), and I continued to call on him four or five limes to put up his hands, and he didn't do it. Q. Did he do anything? A. He didn't. He made no answer, but when he was directly out in front of me I felt like I had chances to risk no longer, and I fired. When I fired Ed fired. After we shot he said, `You shot the wrong man.'"

Cross-examination:

"I fired one shot at Ollie. I was about feet from him, and it was awful dark. I couldn't positively tell his hands were in his pockets, but his hands were down—they were down here (indicating). I walked up within 12 feet of these fellows, and when I got there I said, `Throw up your hands, and he didn't do it, and I called on him four or Eve times. I felt like I waited as long as I could possibly wait. I judge he made six or seven steps toward us. He had gotten right about even with us, when he got up even he kind of backing down the side of the fence. He was where he could have seen us all. I can't say he was looking at us. He was backing this way (indicating), and when he got up close to me I fired. I couldn't say that he came on us like he was going to do anything. I thought he would. I thought he was backing up to shoot. No, sir; he did not have a gun. He did not come on to me. He made no threats. He never said a word about hurting me; actions that he did caused me to shoot, and the actions that he was in, sidling down that way and refusing to do what I told him. No, sir; I never asked him his name."

Defendant Earls, in the course of his cross-examination, also testified:

"I heard Mr. Hannah say, `Stick up your hands,' and I heard the nigger say, `They are up, Mr....