State v. Cole

Decision Date05 June 1924
Docket NumberNo. 25320.,25320.
Citation304 Mo. 105,263 S.W. 207
PartiesSTATE v. COLE.
CourtMissouri Supreme Court

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Casper Cole was convicted of murder in the second degree and he appeals. Reversed and remanded for new trial.

Jerry Mulloy, of Poplar Bluff, for appellant. Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

By an information filed in the circuit court of Butler county, Missouri, on December 21, 1922, appellant was charged with murder in the first degree for the killing of Joseph J. Epley, in said county, on November 24, 1922. The case was tried before a jury and, on April 14, 1923, the following verdict was returned:

"We, the jury in the above entitled cause, find the defendant guilty of murder in the second degree, and assess his punishment therefor at imprisonment in the penitentiary for a term of twenty (20) years.

                                 "J. M. Petty, Foreman."
                

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, sentence pronounced, judgment rendered, and an appeal granted defendant to this court.

The evidence in behalf of the state tended to prove the following facts: That one Joseph J. Epley, the deceased, a man near seventy years of age, sold a farm in Butler county aforesaid, to Armstrong and Lang. The latter turned over his interest to Armstrong. In June, 1922, Armstrong was in possession of said land, and had a crop, live stock and personal property thereon. During the above period, Armstrong, deceased and appellant made a deal by which the latter purchased the personal property of Armstrong, acquired one-half interest in the crop, and was to have the use of the farm as tenant of deceased, from that time during the balance of the year 1922, and the whole of 1923; that pursuant to this transaction, appellant immediately went into possession of the farm and remained there until after the death of Epley; that shortly prior to the 15th of November, 1922, Epley again became the owner of said land by foreclosure proceeding of the deed of trust thereon, and at once moved onto the farm with his family and personal property, but without the consent of appellant, and against his wishes, occupied part of the buildings thereon. On November 24, 1922, the deceased went out to a meadow on said farm to do some plowing; that while deceased was in said meadow the defendant proceeded from his back porch toward deceased with a shotgun. The wife of deceased saw defendant moving as above indicated and followed him. When defendant got within about 20 feet of the deceased, he shot the latter in the shoulder with said shotgun. When shot, the deceased "gave down in his knees" and, while so doing, the defendant shot again, striking the deceased in the eye. The deceased said nothing prior to the first shot, but "hollered" after he was shot. After shooting deceased, defendant turned and left the farm. Mrs. Williams, who lived, about three-quarters of a mile from the home of deceased, was informed by defendant's brother that appellant had killed deceased. She came to the farm, and found deceased lying back in the far corner of the house, in the meadow. His wife was there with him, and she removed from deceased's pockets a watch, pocketbook and knife. Other parties appeared at the scene of the shooting. When Mr. Keel arrived at the farm, he found deceased lying on the ground where he had been shot, and there was a great deal of blood on the ground. Between the house occupied by defendant and where he was lying after the shooting, Keel found two empty twelve-gauge shotgun shells, a few steps from the scene of the shooting. Keel also found at the house of defendant a single-barreled twelve-gauge shotgun, which was empty, but had been recently used. The coroner of said county held an inquest and found that deceased had been shot in the head and right eye, and that there were scattered shots along the side of the neck. The coroner gave it as his opinion that deceased died from the effect of a gunshot wound in his head.

The defendant came into the store of Charles Irby, at Hendrickson, and advised him that he had killed deceased, and was going down to give himself up to the sheriff. Appellant came to the office of J. H. Hogg, the sheriff, immediately after the killing of deceased, and informed the sheriff he had killed him with a single-barreled shotgun. He told the sheriff, that he had first shot the deceased, then reloaded and shot again. That as he shot deceased, the latter was attempting to open a gate which divided the meadow from a lot. The defendant said he did not know whether the deceased had a gun or not.

Isom G. Williams said the defendant, a few weeks before the shooting, in relating his troubles, stated that he and deceased would not both be alive.

The wife of deceased testified that her husband had nothing in his hand when shot, and made no motion toward putting his hand in his pocket. She further testified that her husband had no gun when shot.

Defendant's Evidence.—The testimony in behalf of defendant tended to prove that he and his wife lived on the farm owned by deceased; that about September 15, 1922, the deceased and his wife moved on said farm and occupied a small outhouse; that ill feeling existed between defendant and deceased, occasioned by deceased claiming and taking part of the products of the farm belonging to defendant; that on November 24, 1922, the day of the shooting, the deceased was trying to open a gate, which defendant had previously locked, and from which he had removed the hinges; that defendant's wife, at this time, heard some loud talking down near the gate, and heard a shotgun report; that in a few minutes thereafter, defendant returned to his home and left the latter for the purpose of going to the place of Mr. Hunter; that about two weeks prior to the shooting, the deceased had a conversation with one Lee Duncan relative to gaining possession of his farm and, upon being told that he could get possession of same by the payment of fifty dollars, he told Duncan he would not pay a cent, but would get it anyway; that on the day of the shooting deceased was talking rather loudly to his wife; that the latter handed him a shotgun, and he started down toward the meadow, with the statement that "Cole is looking for trouble, and I am going to plow that ground if I have to kill him before night"; that defendant could tell by the way deceased's pocket hung that he carried a pistol therein; that a few weeks before the shooting, deceased was seen carrying a revolver; that deceased's general reputation in the community where he lived for being a quarrelsome, turbulent man was bad; that the wife of deceased told witness Maud Alexander that she did not see the shooting, but heard two shots fired; that deceased when asked if defendant had moved from the farm, said he had not, but a little shotgun law would make him move; that defendant contracted for the possession of the farm with deceased on June 27, 1922, and was to have it for the years 1922 and 1923; that defendant, under said contract, took possession of the farm; that deceased requested defendant to move on the farm at once, when said contract was made, and agreed to give him a share of the crop, half of the potatoes, the garden, etc.; that a few days after said September 15, while in the town of Hendrickson, deceased informed defendant he was going to move back on the farm and wanted defendant to give him possession; that on said September 15th, 1922, deceased, with his wife, moved onto said farm, took possession of the tool shed, two stalls in the barn for his horses, and one stall for his cow; that on November 24, 1922, defendant had locked said gate with a chain and padlock and, after so doing, went to his breakfast, after which he made preparations to hunt some hogs; that upon his return at about eight o'clock, he observed the deceased trying to open said gate; that defendant walked toward deceased, and informed the latter that he did not want him to open the gate or plow the pasture; that deceased then said "I am as game a man as you are," and reached toward his back pocket, whereupon defendant shot deceased; that he shot deceased because the latter started to shoot at him; that immediately after the first shot, deceased again ran his hand to his pocket, and defendant shot him a second time; that after shooting deceased, defendant returned" to his home, and started to Hunter's place; that the wife of deceased was about 40 or 45 steps away from where the shooting occurred, and she could not have seen her husband from the position which she occupied; that after arriving at Hunter's, defendant went to Jim Fudge's mill, and from there to Poplar Bluff, where he surrendered to the sheriff. The evidence of defendant tends to show that the various threats aforesaid, made by deceased, were communicated to defendant prior to the shooting.

State's Rebuttal.—The wife of deceased testified that she did not on the morning of November 24, 1922, hand deceased a shotgun, nor did deceased on that day have any shotgun, nor did he own a revolver, or have one about the premises at that time; that deceased did not say he was going to plow the ground, if he had to kill defendant.

In order to avoid repetition, the instructions and rulings of the court throughout the trial, as far as necessary, will be considered in the opinion.

Opinion.

Appellant, in his assignment of errors, presents seven propositions for our consideration. The first charges the trial court with error in failing to grant him a new trial based on newly discovered evidence. The second alleges that the court erred in overruling appellant's motion for a new trial, based on the alleged misconduct of the jury. We prefer to consider the other assignments of error first, in the order presented.

I. It is claimed that ...

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