State v. Clapper

• Decision Date: 14 May 1907
• Citation: 102 S.W. 560,203 Mo. 549
• Parties: STATE v. CLAPPER.
• Court: Missouri Supreme Court

102 S.W. 560

203 Mo. 549

STATE v. CLAPPER.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

CRIMINAL LAW — REMARKS OF PROSECUTING ATTORNEY.

The remarks of the prosecuting attorney in his argument, supported by no facts in evidence, that defendant's attorney had tampered with the witnesses and attempted to "buffalo and bulldoze" the court and himself, and that defendant was a scoundrel and perjurer, and ought to be convicted, are ground for reversal; the court having simply requested the prosecuting attorney to keep within the record, and failed to reprimand him, and to direct the jury, as requested by defendant, to disregard such remarks.

Appeal from Circuit Court, McDonald County; F. C. Johnston, Judge.

Chess Clapper appeals from a conviction. Reversed and remanded.

See 93 S. W. 384.

Pepper, Clay & Sheppard, for appellant. The Attorney General and Rush C. Lake, for the State.

BURGESS, J.

At the January term, 1905, of the circuit court of McDonald county, the defendant was convicted of a felonious assault with intent to kill one James Turner, and his punishment fixed at two years in the penitentiary, under an information filed by the prosecuting attorney of said county charging him with the commission of said offense. After filing timely motions for new trial and in arrest, which were overruled, defendant appealed.

The testimony shows that the quarrel which led to the shooting grew out of a drunken spree of the day before, during which, as defendant claimed, he was robbed of $68. He accused James Turner of the theft of the money; the only apparent ground for such charge being that Turner held defendant's note for about that sum. On the day following the drunken spree, the defendant and his two brothers met Turner and two other young men on the road, when defendant demanded of Turner the said note, or the return of the money which he claimed to have lost. The evidence shows that the parties were within eight or ten feet of one another, and that Turner was sitting on a fence, holding the bridle reins of his pony in his hands, and that defendant, without warning, drew his pistol and began shooting at Turner; none of the shots taking effect. James Turner testified that he met the defendant, and that the latter said: "`What did you do with my money? You got my money.' I said, `No,' and he said, `I believe you got it,' and I told him I didn't, and he went on talking and kept on accusing me of getting it, and then he called for the note or an order for it, or receipt or order, and I told him I would not give it to him, and I stepped over and set down on the fence, and they surrounded me. Bill got over on the east side of me, and Chess on the other side, and Jerry came up in front of me. I was riding my pony, me and Jess Moyer, and come down together. I rode my pony over there, and sat down on the fence, and Chess said that if I didn't give up the note he would cause me trouble, and I told him I wouldn't, and he kept on saying that over again, and wanted an order for the note, and I wouldn't give it to him, and he said: `I will cause you trouble.' * * * Chess said: `We will cause you trouble if you don't give up that note. We will have a warrant taken out for you.' And I said, `I won't give it up,' and Jerry said, `If I was Chess, and knew he got the money,' he said you would be like Chess and want him to give it up, and I said, `I didn't get it,' and Chess said, `Well, I will cause you trouble.' And he drawed his gun out of his overcoat and pulled off his gloves, and I was sitting on the fence. He brought it over that way at me, and I jumped off the fence, and he put his bullet through my jumper." Being asked if defendant fired at him, he said, "Yes, sir; and I run across the road, and he shot at me again and hit my pony one shot and he shot through my jumper, right down there, and cut...