State v. Buckner
| Decision Date | 17 May 1934 |
| Docket Number | 33439 |
| Parties | The State v. Fred Buckner, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.
Reversed and remanded.
J Grant Frye for appellant.
Roy McKittrick, Attorney-General, and William W Barnes, Assistant Attorney-General, for respondent.
(1) The evidence complained of under these assignments was properly admitted. State v. Austin, 29 S.W.2d 7; State v. Aguelera, 326 Mo. 1213; State v. Ryan, 50 S.W.2d 1000. (2) There was substantial evidence to support the verdict. State v. Scott, 214 Mo. 261; State v. Decker, 326 Mo. 961. (3) These assignments are too general to present anything here for review. State v. Austin, 29 S.W.2d 7; State v. Richmond, 12 S.W.2d 34; State v. Standifer, 289 S.W. 856; State v. Early, 49 S.W.2d 1060. (4) This assignment was waived by appellant. State v. Decker, 33 S.W.2d 961; State v. Meadows, 51 S.W.2d 1036. (5) The court's rulings and remarks of the court under these assignments constitute no error. State v. Baker, 300 S.W. 674; State v. Richmond, 12 S.W.2d 36; State v. Jeffries, 210 Mo. 237; State v. Dickhout, 26 S.W.2d 938.
Westhues, C. Cooley and Fitzsimmons, CC., concur.
Appellant was convicted in the Circuit Court of Cape Girardeau County, Missouri, of the crime of murder in the second degree. His punishment was fixed at ten years' imprisonment in the penitentiary. Being denied a new trial, he appealed from the sentence imposed by the court in accordance with the verdict of the jury.
The State's evidence disclosed the following: The deceased, Ernest Buchanan, and his family lived a short distance from the home of appellant. Deceased's children had, on a number of occasions, visited a family living in the same building occupied by appellant. Trouble followed these visits and on the morning of the homicide a small child of deceased was ordered, by appellant and his wife, to go home. Curse words were exchanged and the wife of appellant drove the child away, striking at her with a broom. The child went home and shortly thereafter deceased, his wife and a number of children went towards the home of appellant. Deceased, a son and daughter went as far as the porch of appellant's home while the other members of the family remained farther away. Deceased called to appellant, by name, for the purpose of talking over their troubles and of peaceably settling their difficulties. Appellant appeared with a pistol pointed at deceased. The State's evidence tends to prove that appellant snapped the gun but it failed to fire. Deceased then grabbed appellant's arm and a scuffle followed. The evidence is not clear, but according to the State's witnesses a shot was fired either immediately before deceased grabbed appellant's arm or shortly thereafter. A son of deceased testified that after the shot was fired and while his father and appellant were scuffling he, the son, picked up a chair and struck appellant over the head a number of times, causing appellant to fall. Appellant requested deceased to let him up, which he did. Buchanan walked a short distance and fell. He was taken to a hospital where it was disclosed that the second finger of his right hand had been shattered and that the bullet had struck the abdomen and lodged in the vertebrae. A large iliac vein had been severed and due to hemorrhage death followed within a short time. The State also adduced evidence of a threat, made by appellant, that he was going to kill deceased if deceased ever trespassed upon his premises.
Appellant's evidence tends to prove the following: The trouble began over the children of deceased coming to appellant's place. Appellant testified that a few minutes after the Buchanan child went home he noticed deceased coming with a club in his hands; that because he feared deceased would inflict injury on him and his family, and because he desired to protect himself and his home, he procured a pistol, loaded it, went to the door and latched the screen; that when Buchanan arrived at the porch he called appellant a vile name and ordered him to come out of the house; that he, appellant, responded he did not want trouble and asked Buchanan to leave, whereupon Buchanan replied, "To hell with you," and attempted to open the screen door; that he, appellant, thereupon opened the door and stepped out on the porch. Appellant testified that deceased immediately struck him over the head a number of times with the club, causing him to fall; that after he fell the pistol was discharged. Appellant stated that if anyone struck him over the head with a chair he knew nothing about it. That appellant had been struck over the head a number of times was admitted. The blows caused considerable swelling and bleeding. The State contended the blows were struck by deceased's son after the shot was fired, while appellant contended that deceased struck him prior to the shooting.
The trial court submitted the case to the jury, and we think correctly so, on the questions of murder in the first and second degrees and manslaughter.
A motion for new trial and also a supplemental motion were filed within four days after verdict. Many of the points made in the original motion pertain to the admission and exclusion of evidence. Upon examination it was found that no objections were made to the rulings on the admission of evidence, or exceptions saved, and therefore, the points have not been preserved for our review. We may say, however, had they been preserved we find little or no merit in them. The case, during the progress of the trial on the admission and exclusion of evidence, we find to have been fairly tried. Complaint was made that the trial court erred in not striking from the record the evidence of two witnesses for the State. The evidence of one because the witness was discredited and not worthy of belief. The testimony of the other because the witness testified that he saw the difficulty when it was in fact shown that he could not have witnessed it because a building obstructed his view. Even though a witness may be discredited, the weight of the testimony of such witness is for the jury and not the court. Likewise the question of whether the witness was in a position where he could, or could not, observe the difficulty was for the jury to decide and not the court. The points are, therefore, ruled against appellant.
Error is assigned to the giving of a number of instructions. Only one need be considered. In the supplemental motion the manslaughter instruction was alleged to be erroneous. It was pointed out in the motion that this instruction required the jury to find "beyond a reasonable doubt" that defendant was struck by deceased and that this resulted in defendant's excitement and passion and thereby reduced the homicide from murder to manslaughter. Instruction 4 reads as follows:
"'The court instructs the jury that if you believe and find from the evidence in this case, and beyond a reasonable doubt, that the defendant was struck one or two licks with a club by deceased Buchanan, and that as the result of such blows the defendant became excited and under a heat of passion of such an extent that he did not act from and under malice aforethought and not with a design to take the life of Buchanan and not under such facts as to constitute murder in either degree, and not excusable as explained in Instruction No. 7, and not in self-defense as explained, then you should find him guilty of manslaughter and assess his punishment by imprisonment in the penitentiary for not less than two nor more than ten years, or by imprisonment in the county jail not less than six months, or by a fine not less than five hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in the county jail not less than three months.'"
The learned Attorney-General states in his brief:
"Appellant may not complain of instruction in reference to manslaughter when convicted of second degree...
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