State v. Atchley

• Decision Date: 02 February 1905
• Citation: 186 Mo. 174,84 S.W. 984
• Parties: STATE v. ATCHLEY.
• Court: Missouri Supreme Court

84 S.W. 984

186 Mo. 174

STATE v. ATCHLEY.

Supreme Court of Missouri, Division No. 2.

February 2, 1905.

HOMICIDE — SELF-DEFENSE — TRIAL—INSTRUCTIONS — MANSLAUGHTER — PROVOCATION — EVIDENCE—SUFFICIENCY—INFORMATION.

1. In a prosecution for homicide, in which defendant claimed that he acted in self-defense,

evidence that, a short time before the homicide, defendant went to a justice of the peace, and, in the absence of deceased, asked to have him put under a bond to keep the peace, was inadmissible.

2. Where the instructions in a prosecution for homicide correctly cover all propositions of law arising on the evidence, the refusal of correct instructions requested by defendant is not error.

3. Where, on a trial for homicide, it appeared that the killing occurred in a mill owned jointly by deceased and defendant's wife, and was the result of a quarrel between the two as to deceased's management of the property, refusal to charge that defendant's wife owned a half interest in the mill, and was entitled to be there, was not error, there being no dispute as to these facts.

4. Errors in the admission of evidence not made a ground of motion for new trial are waived.

5. Insults and words of reproach, not accompanied by any blow or assault, are not sufficient provocation to reduce a homicide to manslaughter.

6. Evidence held sufficient to support a conviction of murder.

7. An information for murder must state that the prosecuting attorney, "upon his oath," or "upon his official oath," says that defendant is guilty of the crime charged.

In Banc. Appeal from Circuit Court, Dallas County; Jas. T. Neville, Judge.

Benjamin Atchley was convicted of murder, and appeals. Reversed.

Mayfield, Moore, Miller & Mayfield, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, J.

On the 3d day of December, 1902, the prosecuting attorney of Dallas county began this prosecution by filing in the office of the circuit clerk the following information:

"In the Circuit Court of Dallas County, October Adjourned Term, 1902. State of Missouri v. Benjamin Atchley. W. C. Hawkins, prosecuting attorney within and for Dallas county, Missouri, informs the court and charges that Benjamin Atchley on the 22d day of November, A. D. 1902, at the county of Dallas and state of Missouri, upon one William Bramwell, then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and with a certain deadly weapon, to wit, a stick of wood of the length of two and one-half feet and of the thickness of two inches, which he, the said Benjamin Atchley, in his hands then and there had and held, him, the said William Bramwell, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did strike and beat upon the head and body of the said William Bramwell, giving to the said William Bramwell then and there, with the stick of wood aforesaid, upon the head and body of the said William Bramwell, certain mortal wounds, bruises, contusions, and fractures, of which said mortal wounds, bruises, contusions, and fractures the said William Bramwell from the 22d day of November, 1902, until the 26th day of November, 1902, at the county aforesaid, did languish, and languishing did live, on which said 26th day of November in the year aforesaid the said William Bramwell, at and in the county aforesaid, of the mortal wounds, bruises, contusions, and fractures aforesaid, died. And so the prosecuting attorney aforesaid does inform the court and charge that the said Benjamin Atchley him, the said William Bramwell, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder, against the peace and dignity of the state. W. C. Hawkins, Prosecuting Attorney.

"W. C. Hawkins, prosecuting attorney, makes oath and says that the facts stated in the foregoing information are true, according to his best information and belief. W. C. Hawkins.

"Subscribed and sworn to before me this 3d day of December, 1902. John A. Lamun, Clerk Circuit Court."

On the same day the defendant was arrested, and held to answer to the April term, 1903, of the circuit court of Dallas county. The defendant was duly arraigned on the 6th day of April, 1903, and entered his plea of not guilty, and a continuance was granted on his application until July 20, 1903, and bail refused. On July 20th the cause was continued to the October term, 1903. Upon previous notice, at the October term, 1903, an application for a change of venue from Dallas county was made by the defendant on the ground of the prejudice of the inhabitants of said county. The evidence pro and con on this application was heard, and the change of venue denied. Thereupon an application based on the prejudice of Judge Cox was filed and sustained, and Judge James T. Neville, of the Springfield circuit, was called to try the case, and Judge Neville appeared and took charge of the case, and granted a continuance until November 16, 1903. On the 16th of November, 1903, the cause proceeded to trial. A jury was duly impaneled, and the evidence heard. On November 20th the jury returned a verdict of guilty of murder in the second degree, and assessed defendant's punishment at 20 years in the penitentiary; and, after his motions for a new trial and in arrest had been heard and overruled, he was sentenced in accordance with the verdict. From that sentence he appeals to this court.

The bill of exceptions was filed, by leave of the court, and pursuant to extensions of the time therefor, on April 29, 1904. The evidence, in substance, tended to prove that on the day of the homicide the defendant, Benjamin Atchley, and the deceased, William Bramwell, were copartners in a mill located at Long Lane, 12 miles east of Buffalo, the county seat of Dallas county. Prior to going into partnership with Bramwell, Atchley and his family resided for many years in Lebanon Laclede county. Atchley and Bramwell were equal partners in the mill. Very soon after they purchased the mill they made an order for some necessary repairs, each agreeing to pay his half of the cost thereof. It appears that defendant paid his half, but Bramwell failed to meet his part. Owing to his default, a mechanic's lien was threatened. Thereupon Mrs. Atchley, the wife of defendant, borrowed money on her separate estate to pay $160 which the deceased owed, and paid it off, and took a note for that sum, secured by a mortgage on the half interest of the deceased in the mill. The evidence also tends to show that the deceased collected various debts due the firm, for which he had not accounted, aggregating, perhaps, $159. On account of this method of the deceased in doing the business, a bad state of feelings arose, and was existing on the 22d day of November, 1903, the date of the homicide.

Wilkerson, a witness for the state, says he went to the mill about the middle of the afternoon. When he first reached there, it seemed that Bramwell, the deceased, was looking over the mill for some grinding that was missing, and had the book in his hand. He went to the stairway that led down to the engine room, where defendant was at the time, and called defendant, and the latter came partly up the stairway, with his head and shoulders above the floor. Deceased asked defendant if he knew anything about the missing grinding, and he said "No, I don't." Deceased said he could not find it, and handed defendant the book. Defendant took it, looked at his name, and threw the book on the floor from him, some five or six feet. He then turned and went down to the engine room. Just after this, witness went out on the porch of the mill, and, as he did so, met Mrs. Atchley, the wife of defendant, going in. As she went in she said, "It is horrible, the way this man is getting away with the grinding, and he accuses us of getting away with it." She went up to Bramwell, the deceased, who was engaged in grinding some corn, and was on his knees about the corn buhrstones, with his hand on the wheel that gauges the mill. He heard her speak to deceased, but could not distinguish what she said, but, in answer, deceased said, "It is missing, and it has to be made up to him." She replied, "I don't make up anything." The next thing he heard was a heavy step on the floor, and then a lick, and immediately afterwards another lick. He rose and started toward the deceased and defendant, and saw defendant strike deceased a third lick with a stick which he held in both hands. When defendant struck the third lick, Bramwell was lying on the floor, with his mouth against the corn buhrs, on the left side. Witness ran between them, and defendant said, "I will kill the d___n s___ of b___." "No d___n s___ of b___ can call my wife a bitch." Witness was on the porch, about 20 feet distant, when the conversation between deceased and Mrs. Atchley took place. Ed. Warner was with witness. In addition to the remarks already noted, he says, he heard deceased say to Mrs. Atchley, "You get out of here;" and she said, "I don't have to get out of here;" and the deceased said, "No; you don't have to get out of here, but you don't know anything about this." Immediately after witness ran between the defendant and deceased, defendant turned and went downstairs with the stick in his hands, and stopped the mill, and then went up to the town. Witness and a young man named Holman dragged the wounded man out on the porch.

Warner corroborated Wilkerson as to the occurrences leading up to the fatal blows. He says Mrs. Atchley was demanding of deceased information as to the grain that was missing, and he said some of it went to make up for some lost grinding. And she wanted to know what went with the lost grinding, and he asked her what went with a grinding of seven bushels that disappeared when he had been absent for two weeks. After this character of conversation, he told...