State v. Byrd
| Decision Date | 03 June 1919 |
| Docket Number | No. 21326.,21326. |
| Citation | 278 Mo. 426,213 S.W. 35 |
| Parties | STATE v. BYRD. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jefferson County.
Carol T. Byrd was convicted of murder in the second degree, and he appeals. Reversed and remanded.
P. S. Terry and Charles J. White, both of Festus, and Clyde Williams, of Hillsboro, for appellant.
Frank W. McAllister, Atty. Gen., and Henry B. Hunt, Asst. Atty. Gen., for the State.
Defendant was indicted in the circuit court of Jefferson county for murder in the second degree, charged with the killing of one, Rae Sellers, by shooting him with a pistol. Upon a trial, he was found guilty as charged, and sentenced to ten years' imprisonment in the penitentiary. From this judgment he appeals.
The deceased was employed as an electrician by a street fair company, while the latter was holding what was termed a carnival at Crystal City. The exhibitions of the company were conducted in a series of tents. The deceased, a short time before he was shot, had been engaged in an altercation which, from the record, appears to have been limited to words with a cook employed by the company, which arose from the deceased having cut the lighting wires which connected the cooking tent with the dynamo, or source of supply. Immediately after this difficulty the deceased was seen running northwardly up the midway between the tents of the company, pursued by appellant and one Cross, the former being the township constable, and the latter the marshal of Crystal City. As is always the case in occurrences of this character, there was a marked variance in the testimony of the eyewitnesses.
One witness stated that Cross was in the lead, and that both officers fired their guns twice in the air; that they called to the deceased to halt, but he ran on north for about 100 yards, the officers following him for about 50 yards, and turned to the east at one of the tents. Another witness saw appellant shoot his pistol straight in front of him in the direction of the deceased, the appellant being at the time about 20 feet behind the deceased. Courtois and De Clue, two boys who were riding in a Ferris wheel, saw some men running toward the river away from the show tents, a little, heavyset man and a tall man, both shooting straight out from their hands. These descriptions suited appellant and Cross. Courtois saw the appellant shoot while running, but neither he nor De Clue saw the man who was being pursued. Another witness saw appellant and Cross running after a man, and saw shots fired by them, but did not know which one of them did the shooting. Still another witness heard appellant call upon deceased to stop, and saw the former shoot straight in front of him in the direction of the deceased. Cross did not shoot.
Deceased ran north up the midway to the company's Ferris wheel, turned east toward the back of the show grounds, between the Ferris wheel and one of the tents, and then ran toward the Mississippi river.
Appellant and others ran northeast between the tent aforesaid and the Ferris wheel, and shortly after they passed, two or three shots were fired close together, back of the tents and north of the Ferris wheel. At the same time there was shooting going on in one of the tents.
The Ferris wheel operator saw appellant pursuing the deceased at the time the latter ran toward the east and back of the show grounds. Appellant was 10 or 15 feet behind deceased, with a gun in his hand. When they got to the managing officer's tent, appellant turned north, and, from a distance of 10 feet, shot toward deceased, stopped to look, and went on north. This witness saw the deceased fall behind one of the tents.
Another witness, John Bacheler, testified that he saw appellant bending over the body of the deceased back of the dance hall. The body was lying face down, with the head toward the north. Bacheler saw appellant turn the body over and heard him say, "Somebody get a doctor; I have shot the wrong man." This was, in substance, the testimony for the state.
The testimony on behalf of the appellant tended to prove the following facts:
Upon the night in question; appellant went to the cook tent, upon a boy telling him there was trouble between the cook and the electrician. The trouble was over when he got there. He stood around for about 10 minutes, and the trouble started up again. The cook jumped over the counter with a knife, and the electrician ran. Appellant and Cross took after him, and called for him to stop, and appellant fired two shots in the air, but did not shoot parallel with the body of the deceased, nor did he shoot through the crowd in the midway. The deceased ran close to a lemonade stand, turned in between some tents, and then went east toward the Mississippi river. Appellant did not see him in the road east of the tent, nor after he left the tent, nor did he shoot him or fire a shot near the manager's tent; he fired only two shots in the midway.
Three or four shots were fired ahead of appellant, but he had nothing to do with them.
Mr. Wilson, one of the showmen, found the body and saw appellant go to it, and an unknown man ran north of where the body was lying. The body was about 40 feet west from where appellant started.
Appellant admitted that when he went to it, he helped turn the body over, but that he did not say, "Get a doctor; I have shot the wrong man." Several other witnesses confirm his testimony in this behalf. Other witnesses testified that appellant did not carry a 32 automatic on the evening in question, but carried a 45 Colt's automatic, but that he owned a 32 automatic that shot the kind of bullet introduced in evidence; that one Jake Bennett stood back of one of the tents and shot northeast, the body being found about 25 feet northeast from where Bennett stood; that Bennett delivered to Meyers, night watchman of Crystal City, a 32 automatic revolver a short time after the killing, and was very nervous and excited, stating that it looked very black for him;...
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State v. Citius
...where the instruction sets forth all facts necessary to convict. State v. Moone, 283 S.W. 468; State v. Hembree, 242 S.W. 911; State v. Byrd, 213 S.W. 35; State v. Langford, 240 S.W. 167. Appellant complains of the action of the trial court in giving Instruction 7. Cautionary instructions t......
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State v. Citius
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