State v. Baker

• Decision Date: 19 February 1930
• Docket Number: 30172
• Citation: 24 S.W.2d 1039,324 Mo. 846
• Parties: The State v. Ephraim Baker, Appellant
• Court: Missouri Supreme Court

24 S.W.2d 1039

324 Mo. 846

The State v. Ephraim Baker, Appellant

No. 30172

Supreme Court of Missouri

February 19, 1930

Appeal from Reynolds Circuit Court; Hon. E. M. Dearing Judge.

Affirmed.

John H. Keith for appellant.

(1) The verdict was against the evidence, and there was no legal substantial evidence to support it. Therefore, the court erred in overruling defendant's motion for a new trial. All the evidence clearly showed that the defendant shot deceased in the defense of his own person, after he had retreated, and fired only when he was beaten down by the Allisons. State v. Bartlett, 170 Mo. 658; Kelley's Crim. Law & Prac., secs. 520, 521. (2) The court erred in giving instructions on the part of the State. There was not sufficient evidence to sustain a verdict for either first or second degree murder, and if the testimony of the State's witnesses was believable, such testimony did not show defendant guilty of any greater offense than manslaughter. State v. Wyatt, 50 Mo. 309; State v. Bryant, 55 Mo. 79. (3) The defendant was entitled to a new trial on the ground contained in his motion for new trial, that the juror, Frank Helvey, was shown conclusively to have prejudged the case against the defendant, and sat in the trial of said cause after having expressed his opinion that the defendant was guilty, after having qualified as a juror and having not said anything about his fixed and expressed opinion. State v. Wyatt, 50 Mo. 309; Kelley's Crim. Law & Prac. (3 Ed.) secs. 350, 419; State v. Burnside, 37 Mo. 343; State v Ross, 29 Mo. 32; State v. Taylor, 64 Mo. 358; Williams v. Fleming, 284 S.W. 796.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) The evidence was sufficient to support the verdict of murder in the second degree. State v. Farris, 6 S.W.2d 903. The jury believed from the evidence that William Allison was rightfully on a public highway; that defendant Ephraim Baker, upon seeing Wildegree. The statute requires the jury to ascertain under the instrucliam Allison, went, with a loaded gun in his pocket, to William Allison; that defendant then accused William Allison of trespassing and then, with his loaded gun, shot William Allison, and as a result of that shot William Allison died. The jury disbelieved defendant's story of self-defense. (2) The court properly instructed the jury on murder in the first degree and murder in the second tions of the court, whether the defendant be guilty of murder in the first or second degree. Sec. 3232, R. S. 1919. However, defendant is in no position to complain, for if the court erred in instructing for a lesser degree of murder than that with which defendant is charged, it was an error in his favor. A verdict will not be disturbed for any error committed in favor of defendant. State v. Todd, 194 Mo. 394; State v. Young, 314 Mo. 632, 286 S.W. 29; State v. Frazier, 137 Mo. 317; State v. Yates, 256 S.W. 813; State v. Keller, 281 S.W. 963. (3) Appellant complains that the court permitted "Dr. Brandon to testify to a conversation had with deceased out of presence of defendant." The Doctor stated that the deceased had a conversation with him with reference to the seriousness of his condition. He made no other statements concerning declaration of deceased. The bare fact that deceased made a statement, without testifying what was said, cannot be prejudicial to the defendant. (4) "Relative to the alleged separation of the jurors and other alleged misconduct, the previous forming and expression of opinions by several of them, it is enough to say that the whole matter of this paragraph was examined by the lower court upon affidavits pro and con and that court having ruled that the verdict should stand, we will not interfere with such ruling unless upon grounds the most clear and reasons the most manifest." State v. Taylor, 134 Mo. 161; State v. Sebastian, 215 Mo. 90; State v. Page, 212 Mo. 241.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Defendant Ephraim Baker was charged by information in the Circuit Court of Reynolds County with the crime of murder in the first degree for the killing of one William Allison. Upon trial he was convicted on November 27, 1928, of murder in the second degree, and sentenced to twenty-five years' imprisonment in the penitentiary, and he appeals.

By the State's evidence the following facts are shown Defendant, a man about fifty years of age, and deceased, who was sixty-nine, were neighboring farmers, their dwellings being about an eighth of a mile apart and fronting upon the same public road. R. L. Neely and William Walker were respectively road overseer and assistant road overseer for the road district which included the road running past the homes of defendant and deceased. The latter's son, Jesse Allison, lived with his father. Jesse owed poll tax which Neely and Walker had authorized him to pay by hauling and spreading gravel on the road at a point near defendant's house. On the day the trouble occurred, January 23, 1928, Jesse was engaged in this work, using a wagon and team, and his father was helping him. They were taking the gravel from a shallow creek or branch at the side of the road where it ran along defendant's land, and it appears defendant claimed that the place from which the gravel was being taken was upon his land, although it was very near, within a few feet at most, the traveled portion of the road and with no fence between it and the traveled roadway.

The Allisons were in the road, Jesse on the wagon driving and William walking behind the wagon, when defendant came down the road from his home to meet them. It developed that defendant, before starting to the point where the Allisons were, had armed himself with a pistol, which he had concealed upon his person. When about even with the team defendant asked Jesse what he was doing there. Jesse stopped the team and replied that he was working out his poll tax. Defendant asked him who gave him permission and Jesse said that Neely and Walker had done so. Defendant said they were not the road bosses and had nothing to do with it. Defendant then said that they, the Allisons, were trespassing. By that time deceased, William Allison, had come up to the wagon and stopped just behind it and hearing defendant's accusation of trespassing said that "he didn't see how we were trespassing when we were working on a public road." Defendant thereupon "took about two steps toward the back end of the wagon," and drew his pistol and shot William Allison, and then fired a shot at Jesse, wounding him, but not seriously, in the arm and shoulder. Jesse's team started to run and for the moment he gave his attention to the team and while so engaged heard another shot and glancing back saw defendant "snapping" the pistol, apparently trying to shoot William again, but the pistol failed to fire. Stopping his team, Jesse, as he testified, saw defendant following up his attack upon William with a knife, and he, Jesse, seized a shovel and ran to assist his father who was begging defendant not to cut him "as he had already killed him." Intervening, Jesse struck defendant with a shovel. A fight ensued between Jesse and defendant, the former testifying that defendant turned upon and attacked him with a knife. At the termination of this fight defendant was left lying, unconscious or nearly so, in the road, whence he was later assisted to his home by others.

William Allison was shot once, the bullet entering his body "three inches below the sternum on the left side," and lodging in the thoracic cavity. By probing the wound the physician concluded that the bullet ranged upward. It was not located. Allison died the next day as the result of that wound. Deceased's wife, who was at home, heard the shots fired and, her attention being thus attracted, stepped to the window and then to the porch and saw what followed, although she did not see the shooting. No one but William and Jesse and defendant was present when the trouble occurred or saw the shooting. Mrs. Allison's testimony corroborated Jesse's as to occurrences immediately following the firing of the shots.

Defendant testified in substance that from his mail box he saw the Allisons at work and went to the place where they were; that they were taking gravel from the branch on his land; that he armed himself with a pistol, because the Allisons had made threats against him and he was afraid they would attack him; that he asked them if they knew they were trespassing, to which they replied in the negative, saying that they had a right there; asked who gave them the right, they said Neely and Walker; that following the latter statement there was a quarrel, but he could not remember what was said; that he started to go back to the house, whereupon "they took after me, Jesse and Bill did, with their shovels;" that the Allisons beat him about the head and body with their shovels until he was almost paralyzed, and that pretty soon he "started to go down," and then, "I tried to protect my life with a gun." He testified that he shot, but did not remember how many times, and that that was the last thing he remembered of the afternoon's occurrences; that he did not "come to himself so that he could remember anything" for over a week. Defendant proved a previous good character as a peaceable, law-abiding man.

There was evidence pro and con as to whether Mrs. Allison could have seen from the house what she claimed to have seen.

The court's instructions to the jury submitted the issues of murder in the first and second degrees, manslaughter and self-defense. Appropriate instructions were also given upon the subjects of good character, presumption of innocence and reasonable doubt.

I. Defendant's...