State v. Bartlett

• Decision Date: 14 November 1949
• Docket Number: 41432
• Citation: 224 S.W.2d 100,359 Mo. 881
• Parties: State of Missouri, Respondent, v. William Roddie Bartlett, Appellant
• Court: Missouri Supreme Court

224 S.W.2d 100

359 Mo. 881

State of Missouri, Respondent, v. William Roddie Bartlett, Appellant

No. 41432

Supreme Court of Missouri

November 14, 1949

Appeal from Harrison Circuit Court; Hon. V. C. Rose, Judge.

Reversed and remanded.

SYLLABUS

A conviction of murder in the second degree is reversed and remanded because the self-defense instruction injected three issues not supported by the evidence. Defendant's statement is held voluntary.

Chas A. Miller, W. V. Mayse and C. C. Ross for appellant.

(1) The court erred in admitting the testimony of state's rebuttal witnesses, Clinton Hall and Myron Hall, over the objection of defendant. Babcock v. Babcock, 46 Mo. 243. (2) The court erred in admitting, over the objection of the defendant, the statement alleged to have been made by the defendant in the office of the prosecuting attorney, because the same was not voluntarily made and did not contain all of the statements made at the time by defendant. State v. Hopkirk, 84 Mo. 278; State v. Hartsell, 208 S.W.2d 227. (3) The court erred in overruling defendant's motion for a new trial on the ground that the verdict was against the evidence and the greater weight of the evidence in this case. State v. Harmon, 296 S.W. 391; State v. Young, 119 Mo. 495; State v. Hunt, 91 Mo. 490; State v. Webb, 254 Mo. 414, 162 S.W. 622. (4) The court erred in giving state's Instruction 5. State v. Hopkins, 278 Mo. 338; State v. Ball, 262 S.W. 1043; State v. Daugherty, 196 S.W.2d l.c. 629; State v. Miller, 143 S.W.2d 242; State v. Moore, 29 S.W.2d 148; State v. Williams, 87 S.W.2d 175; State v. Dollarhide, 333 Mo. 1087; State v. Cable, 117 Mo. 380; State v. Partlow, 90 Mo. 608; State v. Moncado, 34 S.W.2d 59; State v. Heath, 237 Mo. 255; State v. Harrell, 97 Mo. 105; State v. Clevenger, 25 Mo.App. 653; State v. Roberts, 280 Mo. 669; State v. Creed, 299 Mo. 307; State v. Rennison, 306 Mo. 473; State v. Burns, 278 Mo. 441; State v. Canton, 222 S.W. 448; State v. Banks, 258 Mo. 479; State v. Bartlett, 170 Mo. 658; State v. Rutherford, 152 Mo. 124; State v. Stanton, 68 S.W.2d 811; State v. Kauffman, 46 S.W.2d 79; State v. Painter, 44 S.W.2d 79; State v. Palmer, 88 Mo. 572; State v. McKinzie, 102 Mo. 622; State v. Talmadge, 107 Mo. 543; State v. Taylor, 118 Mo. 153; State v. Young, 99 Mo. 365; State v. Brown, 104 Mo. 365; State v. Fredricks and Langon, 136 Mo. 51; State v. Packwood, 26 Mo. 340; State v. Walker, 196 Mo. 73.

J. E. Taylor, Attorney General, and Lawrence L. Bradley, Assistant Attorney General, for respondent.

(1) The court did not err in admitting as rebuttal the evidence of Clinton Hall and Myron Hall. State v. Martin, 56 S.W.2d 137. (2) The assignments in IIIc, of the motion preserve nothing for review. State v. Powers, 350 Mo. 942, 169 S.W.2d 377; State v. Rosegrant, 338 Mo. 1153, 93 S.W.2d 961. (3) The confession or statement of appellant was properly admitted in evidence. State v. Pillow, 169 S.W.2d 414; State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88. (4) The evidence of the additional statement was admissible. Gulotta v. U.S., 113 F.2d 683; State v. Jackson, 95 Mo. 623, 8 S.W. 749. (5) The admonition of the court to the attorney for asking the witness Wilford Selby "You know it (the gun) did the business in this case, don't you," was proper and sufficient to cure any error. State v. Kaplin, 16 S.W.2d 35; State v. Walker, 46 S.W.2d 569. (6) Assignment in the motion III f, g, h and the first two paragraphs of i are insufficient to preserve anything for review. State v. Powers, 350 Mo. 942, 169 S.W.2d 377. (7) No error resulted from the prosecuting attorney's argument to the jury respecting the written statement of appellant. State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42. (8) Instruction 5 properly declares the law. State v. Peterson, 154 S.W.2d 134; State v. Travier, 336 Mo. 620, 80 S.W.2d 131; State v. Malone, 327 Mo. 1217, 39 S.W.2d 786; State v. Williams, 337 Mo. 884, 87 S.W.2d 175; State v. Bailey, 190 Mo. 257, 88 S.W. 733; State v. Giesike, 209 Mo. 331, 108 S.W. 525; State v. Farrell, 320 Mo. 319, 6 S.W.2d 857.

OPINION

Conkling, J.

William Roddie Bartlett, defendant-appellant, was convicted of second degree murder and appealed from the judgment and sentence fixing his punishment at ten years imprisonment. His defense was self-defense. For reasons we hereinafter state, the judgment is reversed and the cause remanded.

Defendant and the deceased, Ben Hall, had each married sisters. From the father of their wives they had obtained their respective and adjoining Harrison County farms near Bethany. At the time of the killing the deceased, Hall, lived alone on his farm. The defendant had rented his farm to one O. B. Hammonds, who lived on the farm. Defendant lived in nearby Bethany with his wife. Defendant was 74 years of age. Hall was a year or two younger.

For many years defendant and Hall had been unable to get along with each other. Their first trouble was in 1905 over some pasturage rights for stock. They thereafter had further trouble with each other in 1908 and again in 1912 over some stock. In 1923, they had quite serious trouble over the location of a line fence between their respective farms. At that time, without provocation and when defendant was trying to avoid the trouble Hall "flew into a rage", attacked defendant, beat him up quite badly with a hammer, severely injured him and defendant's hearing was thereafter permanently impaired in one ear. Hall threatened to kill defendant and said, "I would like to finish you * * * I will finish you yet". Thereafter the trouble and threats continued at intervals, but without further physical combat. Deceased said to defendant, "I am going to beat your damn brains out * * * I will shut your mouth up forever". Frequent threats against defendant were made by deceased on many occasions thereafter. Defendant repeatedly told Hall he did not want any trouble between them; and said to Hall that it would be better if each of them never came on the land of the other.

On October 31, 1947, before defendant shot Hall on November 5, 1947, further trouble occurred. On that occasion defendant was sitting with a number of others in a pool hall in Bethany. Hall came in, walked up to defendant, abused him, and a number of times called him a liar. Defendant said, "I don't want any trouble with you, Ben, we had plenty of trouble, a lot of trouble, but I don't want any trouble with you". Defendant said that two or three times. Hall said to defendant "* * * you are going to have trouble with me and plenty of it if you don't quit your lying". When defendant started to arise Hall moved closer to him, shook his fist under defendant's nose and said, "Don't try to get up, I will put you down and put you down for good. I did it once and can do it again". No physical combat resulted on that occasion.

On November 5, 1947 defendant had gone from Bethany to his farm, which Hammonds rented, to make a concrete trough for the dairy cattle. Shortly after ten o'clock that morning defendant was in his back yard and barn engaged in that work. While so engaged Hall, in his motor car, drove across a field, opened a gate and drove into the back yard of defendant's farm, where the latter was then at work. Hall lived a half mile west, and when the road was muddy used that route out to the highway. Hammonds, the tenant, was preparing to assist defendant but had been in the garage for about 10 minutes getting some anti-freeze for a tractor. Mrs. Hammonds was also about the place but neither Hammonds nor his wife saw the shooting. The transcript does not clearly disclose whether they were close enough to have heard any conversation between Hall and defendant. Neither testified to having heard anything except the shot.

Defendant testified: That he did not know Hall was in his (defendant's) farm yard until he saw Hall by the side of his (Hall's) motor car; that Hall got into his car and closed the door; that at that time he was not certain that Hall saw him (defendant); that Hall then stuck his head out the window and looked out at defendant, then opened the car door, jumped out and closed the door, walked out in front of defendant, and looked like he (Hall) was "ready to attack"; that defendant said to Hall, "Ben me and you had a lot of trouble * * * I told you to stay out of my yard and we wouldn't have any trouble and wish you'd get in your car and drive out and stay out"; that Hall then said, "I don't have to get out"; that defendant then said, "Well, you gave me an awful abusing up to the pool hall the other day, awful cussing, and I hadn't said a word in the world to you. I don't like you to do that, I wish you would get out of my yard"; that Hall then said, "You walk out in that road and we will settle it for good"; that defendant then said, "I ain't going with you no place", and told Hall "I didn't want to have no trouble with him"; that Hall then said, "I will just settle it with you if you go down there" (into the road); that Hall had his right hand in his right pocket, was facing defendant and yelled "Are you going to go"; that defendant then replied, "No"; that Hall then "started at me", saying "we will settle it right now".

Defendant further testified: That he was then afraid of Hall and feared Hall was going to kill him or do him serious bodily harm that he thought Hall was going to shoot him or "come at me with a knife"; that he thought "it would be mine or his (life)", so he took a gun from his hip pocket and shot Hall in the head as Hall "come right toward me", and Hall fell forward at defendant's feet; that as Hall rushed at him Hall looked like he was "going to tear me up if he come". The above was all of the testimony as to what occurred at the time of the fatal shooting. Hall died as the...