State v. Chenault

• Decision Date: 19 May 1908
• Parties: STATE v. CHENAULT.
• Court: Missouri Supreme Court

110 S.W. 696

212 Mo. 132

STATE v. CHENAULT.

Supreme Court of Missouri, Division No. 2.

May 19, 1908.

1. CRIMINAL LAW—APPEAL—EXCEPTIONS IN LOWER COURT—FAILURE TO GIVE INSTRUCTIONS.

If the court fails to instruct the jury in a criminal prosecution on all questions of law arising in the case necessary for the information of the jury, exceptions must be saved at the time such failure occurs.

2. SAME—MOTION FOR NEW TRIAL—TIME FOR FILING MOTION.

A motion for a new trial in a criminal prosecution, not filed within four days after the verdict, will not be considered on appeal.

3. SAME — APPEAL — OBJECTIONS IN LOWER COURT—CONDUCT OF COUNSEL.

Where the record does not show that defendant either asked the court to rebuke the prosecuting attorney for any improper remarks made by him, or excepted to the court's action in failing to do so, objection to the remarks of the prosecuting attorney or to the failure of the court to correct or reprimand him will not be considered.

4. HOMICIDE — SUFFICIENCY OF EVIDENCE — QUESTIONS FOR JURY.

Evidence in a prosecution for homicide considered, and held sufficient to take the case to the jury.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

John Chenault was convicted of murder in the second degree, and appeals. Affirmed.

A. D. Hight and J. G. Wear, for appellant. The Attorney General and Frank Blake, for the State.

BURGESS, J.

On January 15, 1907, the prosecuting attorney of Butler county, Mo., filed an amended information in the circuit court of said county charging the defendant with murder in the second degree, in having shot and killed, with a pistol, one John Hargrove, also known as John McCall. The case was first tried on January 23, 1907, when the jury disagreed and were discharged. The second trial occurred on April 12, 1907, which resulted in the conviction of defendant of manslaughter in the second degree; his punishment being assessed at three years in the penitentiary. Defendant filed motions for a new trial and in arrest, which were overruled by the court, whereupon defendant appealed.

The testimony showed that on the afternoon of December 29, 1906, the defendant and deceased were in and around Wright's saloon in Poplar Bluff, Butler county, Mo. The deceased was in the saloon, talking to a friend, and the defendant was outside talking to some one, and gesticulating and "making faces" at the deceased, who was looking at him through the glass door of the saloon. Deceased asked E. E. Fee, to whom he was talking, if he did not see the defendant making motions and nodding his head towards him. Fee said he did, but advised the deceased not to notice the defendant, as he did not amount to much. The deceased, however, stepped to the door and asked the defendant what he was making faces at him for. The defendant said he was not making faces at him, but that he was not afraid to do so. They began arguing about the matter, and each called the other a liar; other vile language being also used by both. The deceased walked towards the defendant, when the defendant backed away, reached for his revolver, which was seen by several witnesses, and told the deceased to keep off. Then the deceased turned and ran quickly into the saloon for a shotgun of his, which had been loaned by him to a hunter, and which had been left at the saloon for him a few days before. In the meantime, the defendant went into an alley on one side of the saloon and crouched down on the lower steps of a stairway, which led up to the second story of a building immediately across the alley from the saloon. The deceased came out the side door of the saloon, with the gun in his hands; but he was immediately stopped by one D. H. Black, who tried to take the gun away from him and prevent him from firing at the defendant. Black testified that, just as the deceased was making an effort to fire, he struck the...