State v. Beard

• Decision Date: 23 February 1934
• Docket Number: No. 33362.,33362.
• Citation: 68 S.W.2d 698
• Parties: THE STATE v. SAM BEARD, Appellant
• Court: Missouri Supreme Court

68 S.W.2d 698

THE STATE v. SAM BEARD, Appellant

No. 33362.

Supreme Court of Missouri.

Division Two, February 23, 1934.

Appeal from Pemiscot Circuit Court. — Hon. John E. Duncan, Judge.

AFFIRMED.

Sam J. Corbett for appellant.

Roy McKittrick, Attorney-General, and William W. Barnes, Assistant Attorney-General, for respondent.

(1) The information is sufficient to charge murder in first degree in each count. Sec. 3982, R.S. 1929; State v. Baird, 297 Mo. 225; State v. Brown, 119 Mo. 535; State v. Foster, 136 Mo. 655; State v. Hyland, 144 Mo. 312; State v. John, 172 Mo. 225; State v. Benson, 8 S.W. (2d) 53. (2) The court properly submitted the case to the jury upon both counts under the state of the record. State v. Wister, 62 Mo. 593; State v. Needham, 194 Mo. App. 204; State v. Baker, 264 Mo. 349; State v. Akers, 278 Mo. 371; State v. Simms, 71 Mo. 540; State v. Austin, 318 Mo. 864; State v. Keating, 223 Mo. 94; State v. Baker, 264 Mo. 350; Sec. 3664, R.S. 1929; State v. Morro, 313 Mo. 113; State v. Hamilton, 263 Mo. 301. (3) The court properly submitted to the jury an instruction on second degree murder. State v. Henke, 313 Mo. 634; State v. Snow, 293 Mo. 149; State v. Kyles, 247 Mo. 640.

FITZSIMMONS, C.

In the Circuit Court of Pemiscot County defendant was found guilty of murder in the second degree for that he had killed one Charles Jones. Punishment was assessed at twenty years' imprisonment in the penitentiary. From the sentence and judgment an appeal was taken.

The testimony on behalf of the State shows that on Saturday evening, April 9, 1932, four white men and defendant Beard, colored, gathered at the home of Bennie Parham, colored, about a mile and a half north of the town of Swift in Pemiscot County. Parham's house was about 175 feet from a point where the Wardell sand road crosses the tracks of the Frisco Railroad. Defendant Beard was the last to arrive, he coming about eight o'clock. He had a flash light. He also had a pair of dice and he started a game of craps. But he lost what money he had and he sold some tobacco for ten cents in order to resume play. Lonnie Pullem, who had $1.75 or $2 was the most opulent of the group. He was seen to lend a dime to Charles Jones, who was killed later that night. After a short period of gaming, Parham, the host, objected to further play for the reason that he was expecting his wife and children home from a church supper at Swift. Soon after, the visitors drifted off to their several homes. Jones, Pullem and Beard were the last to leave, Beard being behind the two others Beard returned and borrowed from Parham a lantern which Parham found in his yard the next morning. Jones and Pullem walked together 175 feet west of Parham's house to the crossing of the Wardell road and the Frisco track. There they stopped, chatted for a few minutes and parted. Pullem started to walk half a mile along the track to his home. Jones went east by the road.

Pullem had gone about ninety feet along the track when he was felled by a blow on the back of his head. After some moments of unconsciousness he came to and saw defendant Beard standing over him. Beard hit him again, and Pullem testified to a conversation which he then had with Beard. "I told him that anything I had that he wanted to take it, not to kill me, and he said: `Doc, money is all I want.'" Beard took from Pullem $1.75 and hit him again. Before this last blow, Pullem had seen Jones coming to his aid. When next Pullem aroused himself to see what was going on, he saw Beard standing over and beating Jones, who lay on the right of way of the railroad, a short distance south of the point where Pullem was at or near the highway crossing. At this sight, Pullem crawled away north toward him home. His brother-in-law took him in and doctors treated his wounds for three weeks thereafter. Pullem testified that Beard used some instrument or object as a weapon in striking him and Jones. But Pullem did not know what the object was.

Harold Walker and several other young men, living at Wardell, and on their way home from Hayti, passed by automobile along the Wardell road about two o'clock in the morning of April 10. They saw a human body lying athwart the highway at the Frisco track. They had to drive around the body in order to avoid running over it. They stopped and examined it. It was the body of a dead white man. The top of the head was crushed. A freight train was approaching at the time, and a northbound passenger train had passed sometime before. The body lay between the cattle guards, in the roadway, parallel to the railroad track and about two feet from it. They hurried home and notified a justice of the peace.

Officers who made an examination at daybreak identified the body as that of Charles Jones, who had been at Parham's house with Pullem and the others the night before. The left leg left arm and some ribs were broken. The back of the head was crushed and the brains scattered across the road. The face was swollen and the cheek bone shattered. Jones' cap lay near the body. Pullem's cap was found near where he said he was struck down. A trail of blood led from Pullem's cap along the track to the door of the home of his brother-in-law, one-half mile north. But no signs of blood were seen between Pullem's cap and Jones' cap. This evidence tended to break down the theory advanced by defendant Beard that Pullem and Jones had a fight at the crossing and that the death of Jones resulted.

Defendant Beard was arrested at his home near Swift on the morning of April 10, shortly after the inquest. He had in his possession some dice and $1.25. A justice of the peace, a constable and two deputy sheriffs testified that they saw that morning what appeared to be spots of blood on his trousers and on one shoe. Beard admitted to the officers that the spots were blood, and he explained that they came from a finger cut which he had suffered a few days before while he was mending the automobile of his nephew A.D. Morris. At a later time he stated that the marks were grease spots. A deputy sheriff forced Beard to remove the trousers. They were held as evidence in a storeroom in the jail. At the trial the marks were not distinguishable as blood spots, and the county health officer testified that, in the interval between Jones' death and the trial blood stains would fade. Beard, in his statement to the officers, denied that he killed Jones. He also said that after he left Parham's house, he went to the church supper at Swift, and that there he met C.W. Jackson and James Smith. A.D. Morris, Beard's nephew, denied that Beard had repaired Morris' automobile or had cut his, Beard's finger, while so doing. C.W. Jackson, testifying for the State, said that he saw Beard at the church supper about 7:30 P.M., but he did not see him there again that night. Beard borrowed a flash light from Jackson and promised to return it in a few minutes but he did not do so. When Beard reached Parham's house about eight o'clock he had a flash light. Jackson again met Beard sometime after eleven o'clock while Jackson was on his way home from the supper, and was walking along a road about a mile or less from the Wardell road crossing. Beard walked with Johnson to the latter's house and there he gave to Johnson the borrowed flash light. James Smith, whom Beard said he had seen at the supper, denied that statement. Smith, who was walking home with Jackson after the church supper, told of meeting Beard on a road near the fatal crossing. Beard volunteered the statement that he had been playing craps at Lacy Martin's house; that he had lost his money and clothes and that Martin generously had given back the clothes.

Beard, testifying in his own behalf, denied that he had hit Jones or Pullem. He admitted that he had been at Parham's house on the night of April 9, but denied that he had played craps although Parham had invited him to take part in a game which was in progress. He testified that he bought a half pint of whiskey from Parham, drank it and went to the church supper at Swift. He denied that he had stated to the officers that the blot on his trousers was a blood stain caused by a cut finger suffered while he was repairing his nephew's automobile.

R.M. Payne, an undertaker, gave the hideous details of the State of Jones' body when he took charge of it at the crossing. It was his opinion that Jones had been killed by a train.

The information upon which defendant was tried charged murder in the first degree in two counts. The first count informed the court that Beard on or about April 10, 1932, in ...