State v. Archie

• Decision Date: 03 December 1923
• Docket Number: No. 24937.,24937.
• Parties: STATE v. ARCHIE.
• Court: Missouri Supreme Court

256 S.W. 803

301 Mo. 392

STATE v. ARCHIE.

No. 24937.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Walter Archie was convicted of second degree murder, and he appeals. Reversed and remanded.

Ward & Reeves, of Caruthersville, and Gallivan & Finch, of New Madrid, for appellant,

Jesse W. Barrett, Atty. Gen., and Allen May, Sp. Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On August 15, 1922, the prosecuting attorney of New Madrid county, Mo., filed in the circuit court of said county an information, charging Walter A. Archie with murder in the first degree for the killing of one J. H. Sharp in said county on July 8, 1922. Upon a trial before a jury, defendant was found guilty of murder in the second degree, and his punishment fixed at 20 years' imprisonment in the penitentiary. Motions for a new trial and in arrest of judgment were filed, overruled, sentence pronounced, and judgment rendered, from which defendant appealed to this court.

The testimony on behalf of the state tends to show that deceased was 66 years of age when killed, and had lived in New Madrid county off and on for 20 years; that his general reputation, as disclosed by his neighbors, was that of a quarrelsome, turbulent, and dangerous man. The cross-examination of these witnesses tended to show that deceased was quarrelsome rather than violent or dangerous. It appears from the evidence that defendant at the time of trial was 37 years of age; that he was the father six children, the oldest of whom was 14 years of age, and lived about three hundred yards from deceased; that he had lived in this community for 3 years prior to the homicide:. that after the first 6 months of said period he continuously had trouble with deceased; that during the last 2 years of his life deceased had made all manner of threats, both by word and deed, against the life of defendant, many of which were couched in the vilest and most brutal language; that many of these threats were communicated to defendant and others were not, but the defendant himself testified to abundant knowlledge of deceased's attitude toward him coming from no less than nine persons; that as a result of the foregoing defendant was afraid of deceased.

Witness Redfering, in behalf of the state, testified that about 18 months before the killing he heard defendant say: "Some of these days you will hear of me shooting that old man." Witness told defendant the old man was a pretty good shot, and defendant replied that, "If he gets me it will be after I shoot 16 shots; I have got two good automatics."

Mrs. Ella Winters, also a witness for the state, testified that about the 12th of August, 1920, the deceased, one Hancock, and the surveyor came through defendant's yard, and the latter got a gun, and said: "I will kill the old s___ b___. I have told him never to come on my premises again."

The residence of defendant is on the north side of an east and west road, and west of a north and south road, the intersection being near the house. The ground surrounding defendant's house is from 2 to 3 feet higher than the east and west road where deceased was killed. Gene Keene, also known as Jim King, lived west of defendant's house, and deceased lived still further west. James Tyner lived northwest of the defendant about 100 yards, and there were no buildings between his house and that of defendant. The barn of the latter was east of his house, and about 15 to 20 steps from the east and west road. East of defendant's barn was the pasture of deceased, in which the latter kept his row. The deceased had been cultivating 11 acres of land toward the river east of said pasture, and had to pass by defendant's house in going to it. It appears from the state's evidence that about 5 o'clock on the morning of July 8, 1922, defendant's son went to the Tyner home, and borrowed a shotgun, which Tyner told him was loaded. The boy took the gun to his father's house. About 10 minutes thereafter the report of a gun was heard from the direction of defendant's residence. Miss McCreary, Tyner's stepdaughter, went on the porch of their residence, and from there saw defendant come around the corner of a stormhouse at the northwest corner of his house, and about 3 steps from his porch. The defendant called to her, and said:

"You tell Jim to come over here, and help me take this old devil away from here."

No one went from the Tyner home, but defendant's son, in a few minutes after the shooting, went to King's house, found him at work splitting wood, and got him to come to defendant's home. King had heard the shot fired while he was at work in his yard. He found defendant on his arrival 3 or 4 steps from his porch. King found the body of deceased 8 or 10 feet west of the front part of defendant's house; 8 or 10 feet north of the fence on the south side of the east and west road; and about 14 or 15 feet from a buggy, which was standing in front of appellant's house on the north side of the east and west road; that deceased's body was lying south and east of said buggy. When King approached, defendant came out to the fence on the south side of his home, and asked King if he saw that old man lying there, and if he saw that knife. He pointed out to King an open pocketknife lying 3 or 4 feet from the body of deceased. The head of deceased's body was toward the west. His pipe and glasses were lying near him. There were bloody spots on the head from the eyes back on the right side. Defendant did not tell King he had killed deceased, but said, "he had stood it as long as he could."

At the request of the coroner, Doctor Martin examined the wounds on deceased, and said the shot struck all over the right side of the face and head; that they ranged inward, downward, and forward. On cross-examination, Doctor Martin testified that one shot struck on the forehead and went across; that others struck down' the right side of the face, and down on the neck; that he did not see any hole back of the ear, except that which was made by one shot; that scattering shot seemed to have struck him back of the ear; that the shot were pretty well scattered over the head and face.

The evidence in behalf of the state tended to show that the knife lying near deceased when King arrived had been the property of deceased, and was lost by him about two weeks before the homicide; that during the last two weeks of his life deceased had been using a much smaller knife, which was taken from his pocket by the coroner. There is evidence in the record tending to show that a knife, similar in appearance to the one found lying near deceased, was in possession of defendant before the shooting, and was shown by him to witnesses, with the statement that he had found it.

The coroner got from Tyner the shotgun used by deceased, and in the left barrel of same there was a shell, with a ring cut around it with a knife. Search was made for the empty shell, but it could not be found. It appears in evidence that by cutting a shell in the above manner it will carry the cut part out of the gun, and cause the shot to become bunched. The defendant testified to this effect, and said he had ringed some shells for duck shooting in this way for use in said shotgun about one month before the killing. The shell found in the gun was loaded with 3½ grains of powder, and 1¼ ounces of No. 2 shot. Tyner testified that defendant had frequently used this gun early in the summer for shooting ducks; that he brought the gun home from defendant's house on July 4, and, upon arriving at home, he broke the gun, and saw that it was loaded; that he left it that way until defendant's son got it on the morning of the shooting, at which time he told the boy the gun was loaded; that defendant was told by his son that the gun was loaded.

Defendant's testimony, in addition to the facts heretofore stated, tends to show that on the morning of the killing defendant and his family were planning to go after berries; that the plans were made two days before, but were postponed on account of rain; that defendant planned to hunt squirrels on said trip; that he had at his home a Remington automatic pistol and a Winchester rifle, and had owned them for several years, but sent after the shotgun to use in shooting squirrels, pursuant to the plans above mentioned; that defendant's son, after bringing the Tyner shotgun to his father, where the buggy was standing in front of the house, went to the barn to take care of the horses; that while there he heard a gun fire once, and heard his mother scream; that he stepped out of the barn, and saw his father crossing over the fence with the shotgun in his hand"; that he went after King, and did not know how the shooting occurred; that he heard no fussing.

The wife of defendant testified to the same general facts. She further testified that she heard deceased talking in an angry voice about dogging cows, and went out on the porch; that she saw deceased with an open pocketknife in his hand, standing in the road, making profane threats against her husband, who was standing by the buggy, with a distance of about 5 steps between them; that deceased, still holding the knife in his right hand, put his left hand toward his breast; that she then put her hands to her ears, screamed, and ran into the house, where she heard a shot fired; that she did not see her husband have a gun before the shot; that when she saw Sharp he was going west, walking toward his home in the public road; that he was never closer than 4 or 5 steps to her husband at any time she saw him, and was in the traveled highway. She admitted that she told the coroner and other persons that there were no eyewitnesses to the killing.

The appellant related at great length his relationship with deceased, his efforts to be friendly, the numerous threats and great abuse inflicted upon him by deceased directly, and other threats that...