State v. Brookshire
| Citation | 368 S.W.2d 373 |
| Decision Date | 08 April 1963 |
| Docket Number | No. 1,No. 49152,49152,1 |
| Parties | STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant |
| Court | Missouri Supreme Court |
W. A. Brookshire, pro se.
Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
In June, 1961, the defendant W. A. Brookshire was tried in the Circuit Court of Cooper County, Missouri, on a charge of murder in the first degree. A jury found him guilty of murder in the second degree and assessed his punishment at ten years' imprisonment in the State Penitentiary. A motion for new trial was filed and overruled. Thereafter, the court entered a judgment and sentenced the defendant in accordance with the verdict. Defendant appealed from the judgment to this court.
The information filed in the Circuit Court of Boone County, Missouri, alleged that Brookshire did on the 9th day of November, 1960, kill one Roderick J. Neiss by shooting Neiss with a .32 caliber Colt automatic pistol. On application of the defendant, a change of venue was granted. The court transferred the case to Cooper County, Missouri.
In the trial of the case, the defendant was represented by attorney Richard K. Phelps of Kansas City, Missouri, a member of the Missouri Bar. The defendant, a lawyer, also took an active part in his own defense. Mr. Phelps represented Brookshire throughout the trial and argued the motion for a new trial. The defendant also made an argument on the motion for new trial and thereafter represented himself and personally briefed and argued the case in this court.
The defendant, in one of the points briefed, stated that the evidence 'established beyond any honest doubt that the killing of deceased was justifiable homicide.' We shall state the facts as shown by the record with that contention in mind.
Defendant, on the day of the homicide, lived on a farm in Boone County, Missouri, about 11 miles south of Columbia, Missouri. Two farm hands, Roderick J. Neiss and Richard Polly, occupied two rooms adjoining the house at the rear. No other persons lived in the house. Defendant usually prepared the meals. The duties of the farm hands included taking care of a large herd of cattle which defendant owned. On the evening of November 9, 1960, at about 8:30 o'clock, the sheriff of Boone County received a telephone call from the defendant Brookshire. He informed the sheriff that he had shot a man but was not sure the man was dead. The sheriff was asked to come and bring an ambulance. The sheriff testified that when he arrived at the home, defendant was waiting on the outside. Defendant told the sheriff that he was afraid to go into the house; that he did not think the man was dead. The sheriff, his two deputies, and Brookshire went into the house. They found the dead body of Neiss lying on his back at the bottom of a stairs leading to the second floor of the house.
Sheriff Powell testified that Brookshire described the occurrence in detail as follows: About 6:00 p. m., Brookshire was preparing supper in the kitchen when Neiss, after doing some chores, came in and asked defendant to get some wood for the stove in Neiss' room. Brookshire told Neiss to get his own wood. This angered Neiss and he began quarreling with defendant about not having any wood. All three men, Brookshire, Neiss, and Polly, ate supper together at the kitchen table and Neiss continued to argue. After supper, Brookshire told Neiss to go to his room. Brookshire then went upstairs and read awhile. Neiss, during this time, stated a number of times, 'I am a Sioux Indian and you had better quit fooling with me.' Further, Neiss had claimed that he had cut a number of people with a knife. The sheriff testified that defendant's account was that after being upstairs awhile, Brookshire came back downstairs and saw Neiss was still in the kitchen; that Brookshire said he again asked Neiss to go to his room but that Neiss again threatened defendant and followed him, Brookshire, upstairs and then went back down the stairs. Brookshire then went to his bedroom, got his gun, and went back and saw Neiss still in the kitchen. The sheriff stated that Brookshire told him that when he neared the kitchen,
The sheriff testified that Brookshire reenacted his version of what occurred on the steps when the fatal shot was fired as follows:
'Q Did the defendant say whether or not Neiss was still coming towards him when he fired?
'A He did.
'Q What did he say?
'A We reenacted this scene and----
'Q By we, who do you mean?
'A He and I. Brookshire and myself.
'Q By reenact, what do you mean? He went through the motions?
'A Went through the motions.
'Q In the house?
'A In the house. I went to the head of the table, where he said Neiss was standing, and he stood in the hallway, where he said he was standing when they took up the stairway the last time, when he shot him. And he had me, with one hand up and the other one on the hip pocket, and he said,
'Q Did the defendant ever say whether or not Neiss would have come on into him if he hadn't fired?
'A He did.
'Q What did he say?
'A He said that while they were talking at the--the last time he started, when he took after him, the last time he taken after him, that he says, 'I cut one man's guts out and I will cut another one.'
That he kept coming towards him.'
The sheriff testified further that defendant told him that he had left things just as they were when Neiss fell as a result of the shot. When the deceased's body was examined, he had on two pairs of trousers. In a pocket of the inner pair, a closed Barlow knife was found.
Brookshire, in his testimony, stated that Neiss during the evening threatened him a number of times saying, 'He was going to cut my guts out and I assume he was going to use a knife.' Brookshire testified he did not see Neiss have a knife just prior to the shooting but that a few days before the shooting deceased borrowed a whetrock from him to sharpen a knife; that he saw the knife which was a large black-handled knife, not the one found on the body of Neiss. Brookshire testified that he found this large knife open lying next to the body of Neiss after the shooting; that he picked it up and placed it in a table drawer in the kitchen. It was in evidence, and Brookshire admitted, that he did not mention the presence of the knife to anyone until after the coroner's inquest at which Brookshire testified. Brookshire's testimony was that after the coroner's inquest, he went to his home and found the knife under a kitchen table.
As to what happened immediately before the shooting, Brookshire testified that after Neiss had followed him up the stairs, 'I kept begging him to go down and finally he went down. I thought he would leave the house. I went about halfway down the stairs and I could see he was standing in the kitchen. I went back to my bedroom and in the night stand drawer, at the head of my bed, I had a .32 automatic Colt revolver, the one that was introduced in evidence. I got that and went down and saw that he was still down there. I went through the hall and went almost to the kitchen door. As I got within sight of him, he turned, he says, 'I am going to finish you off,' and started after me. I started back. I had the gun in my hand. I started back and he was gaining on me. I started up the stairs. I told him to stop. He didn't stop. I got about halfway up the stairs, seventh or eighth step. He had----
'Q Do you mean the seventh or eighth step from the bottom?
There was a wound at about the middle of the forehead of the deceased from which some blood had trickled down to the hair line of the head. This wound was obvious and the persons present shortly after the shooting evidently were of the opinion that Neiss had been shot in the forehead. Brookshire had contended at the preliminary hearing that deceased was shot in the forehead and he claimed that a photograph showed the wound. When asked about that at the trial, he gave the following testimony:
'Q Was this picture offered at the preliminary hearing?
Exhibit 1, introduced in evidence, was a photograph in which the wound on the forehead was visible. Dr. Richard E. Johnson, a pathologist and the coroner of Boone County, testified that he arrived at the Brookshire home at about ten o'clock on the night of the shooting; that he examined the body of the deceased. As to the wound in the forehead, he gave the following evidence:
'Q And what if any wounds or abrasions or traumatic injuries of any kind did you find on...
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