State v. Clift

• Decision Date: 25 June 1926
• Docket Number: No. 26901.,26901.
• Citation: 285 S.W. 706
• Parties: STATE v. CLIFT.
• Court: Missouri Supreme Court

285 S.W. 706

STATE v. CLIFT.

No. 26901.

Supreme Court of Missouri, Division No. 2.

June 25, 1926.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

William Clift was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Alfred Page and Val Mason, both of Springfield, for appellant.

North T. Gentry, Atty. Gen., and Claud Curtis, Sp. Asst. Atty. Gen., for the State.

BLAIR, J.

Tried for and convicted of murder in the second degree, William Clift was sentenced upon the verdict of the jury to imprisonment in the state penitentiary for 10 years, and has appealed. The only assignment of error urged in the brief and argument of appellant in this court relates to the admission of certain testimony. A brief statement of the facts will suffice. The uncontradicted proof was that appellant shot one Walter Hannah with a pistol in the city of Springfield, on January 19, 1924, and that on January 30, 1924, said Hannah died in said city as the direct result of the wounds thus inflicted. The defense was self-defense.

Hannah, the deceased, was estranged from his wife. She was living apart from him with her little daughter at the home of one 0. C. Mitchell. She had brought suit against deceased for divorce. On the evening of the tragedy appellant went to the Mitchell home ostensibly for the purpose of discussing with Mitchell the purchase of, an insurance policy. He and Mitchell were sitting and talking together in a room occupied by Mrs. Hannah and her daughter when deceased entered the house and came to the open door of the room.

The state's evidence tended to show that deceased upbraided appellant for his presence there in the house before his wife secured a divorce and that appellant immediately arose and fired two shots at deceased without any hostile movement having been made by the deceased.

The story of appellant was that deceased entered the room in an ugly mood and cursed appellant and said he was going to "get him" and advanced toward appellant with an open knife in his hand and that appellant fired the shots to prevent injury or death to himself at the hands of deceased. If further facts appear necessary in the proper consideration of the alleged error in the admission of evidence, they will be stated later.

We have carefully read all of the evidence contained in the bill of exceptions. There was sufficient evidence, including the dying statement of deceased, to support the verdict of guilty found by the jury. On the other hand, the evidence of appellant and his witnesses, if it had been believed by the jury, would have authorized a verdict of not guilty on the ground of self-defense.

Two or 3 days before his death, which occurred 11 days after the shooting, deceased signed a statement, which was admitted in evidence as his dying declaration. A preliminary hearing was held in the absence of the jury before the trial court permitted such statement to be read in evidence. A portion of the signed statement was excluded. Specific objections were made in addition to the general objection that the statement was not admissible as a dying declaration. Indicating by the use of italics the portions of such statement specifically challenged and omitting signatures, we here set out said dying declaration:

"I, Walter J. Hannah, make the following statement because I fear I shall die at any time:

"William Clift, the man who shot me, has been in my wife's company more or less, for the past six weeks. I told Clift on Saturday, January 19th, about 2 o'clock in the afternoon, to stay away from my wife and leave her alone until after I had secured my divorce. That same evening about 7 o'clock I called upon my wife at Washington avenue to talk over matters with her and get some things that belonged to me. I knocked on the front door at the house, but received no response after waiting a reasonable length of time. I then opened the door, walked through the living room to the dining room, and there I met my wife. She came out of the room where I was shot a few moments afterwards. I asked her what was the meaning of this, and she responded, 'I'll get you now; God damn you.' I grabbed her by her shoulder and pushed her aside and went on into the bedroom, which was my wife's room, and found Clift and Mr. Mitchell in there. I stood in the doorway between my wife's bedroom and Mrs. Mitchell's bedroom, which is directly behind my wife's room and next to the dining room, and said to Clift, 'I have told you before to leave my wife alone and stay away from her. Immediately after I said this he shot me twice. Clift was sitting at least eight feet from me at the time he shot. I was standing on the other side of the bed from where he was sitting at the time he shot. The gun he shot me with was taken from out his right coat pocket. He shot me so quickly that I hardly realized what he was doing. I was making no...