State v. Conley

• Decision Date: 17 February 1914
• Citation: 164 S.W. 193,255 Mo. 185
• Parties: THE STATE v. WILLIAM H. CONLEY, Appellant
• Court: Missouri Supreme Court

164 S.W. 193

255 Mo. 185

THE STATE v. WILLIAM H. CONLEY, Appellant

Supreme Court of Missouri, Second Division

February 17, 1914

Appeal from Ozark Circuit Court. -- Hon. John T. Moore, Judge.

Reversed and remanded.

Fred Stewart and T. J. Luna for appellant.

John T Barker, Attorney-General, and W. M. Fitch, Assistant Attorney-General, for the State.

(1) The information is good. Kelley's New Criminal Law & Practice (3 Ed.), sec. 474; State v. Stacey, 103 Mo. 11; State v. Wilson, 172 Mo. 420. (2) The last assignment of error is that the court erred in failing to instruct on all questions of law in the case, and especially in failing to give an instruction on manslaughter in the fourth degree. From a hasty examination of the record it seems that the court would have been justified in giving this instruction. The only question is whether or not the refusal is reversible error. The evidence in this case tends to show that the defendant had learned of threats made against him by the deceased, and it also shows that at the time the fatal shot was fired the deceased and defendant were scuffling were engaged in conversation, possibly a quarrel. Under this state of the evidence was it mandatory on the court to give an instruction on manslaughter in the fourth degree? State v. McKenzie, 177 Mo. 699; State v. Clay, 201 Mo. 687.

FARIS J. Walker, P. J., and Brown, J., concur.

OPINION

FARIS, J.

From a conviction of defendant of murder in the second degree in the circuit court of Ozark county, he appeals. The jury fixed his punishment at ten years' imprisonment in the penitentiary. The information upon which the conviction was had becomes important because of the attack made thereon by defendant in his motion in arrest of judgment. The defendant is neither represented in this court by any brief nor did learned counsel who represented him below appear in oral argument in his behalf. We are left, as best we may, to eke out in the light of the motion for a new trial and the motion in arrest of judgment whatever errors, if any, we may be able to dig out of the record.

By reason of the attack made upon the information it becomes necessary to examine it. Omitting caption and formal parts (touching which there is no controversy), this information is as follows:

"Geo. W. Boone, prosecuting attorney within and for the county of Ozark and State of Missouri, informs the court that William H. Conley on or about the 26th day of December A. D. 1912, at the said county of Ozark and State of Missouri, did then and there in and upon one Ed Conley then and there being, feloniously, wilfully, premeditatedly and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to-wit, a revolving pistol, then and there loaded with gunpowder and leaden ball, which he the said William H. Conley, in both his hands then and there had and held, at and against him, the said Ed Conley, then and there feloniously, on purpose and of his malice aforethought, wilfully, premeditatedly and of his malice aforethought, did shoot off and discharge, and with the revolving pistol aforesaid, and the leaden ball aforesaid, then and there feloniously, on purpose and of his malice aforethought, wilfully and premeditatedly, did shoot and strike him, the said Ed. Conley in and upon the face and head of him, the said Ed Conley, giving to him the said Ed Conley, then and there with the dangerous and deadly weapon, to-wit, the revolving pistol aforesaid, and the leaden ball aforesaid, in and upon the face and head of him the said Ed Conley one mortal wound, of which mortal wound the said Ed Conley from the 26th day of December, 1912, until the 8th day of January, 1913, in the county aforesaid, did languish, and languishing did live, on which said 8th day of January, 1913, in the county aforesaid, of the mortal wound aforesaid, died; and the prosecuting attorney aforesaid upon his oath aforesaid, does say, that the said William Conley, him the said Ed Conley, in the manner and by the means aforesaid, feloniously, wilfully, premeditatedly and of his malice aforethought did kill and murder, contrary to the statute in such cases made and provided, and against the peace and dignity of the State."

It is urged in at least three assignments of error, in the motion for a new trial, that the court did not properly declare the law; that it refused proper instructions, and specially, that it erred in failing to instruct the jury on manslaughter in the fourth degree. This point is properly preserved in the record, and since it is the only very serious point in the case, we would as well now give the testimony upon which this request of defendant was bottomed:

One Lum Bell, testifying for the State, among other things pertinent to the question of whether or not an instruction for manslaughter in the fourth degree should have been given, said:

"Q. Tell the jury what Ed and Bill were doing? A. Well, they [Owen Driscoll and Aleck Hicks] had a little fight there at the house and we was outside the yard fence by a little fire we had built and Ed and Bill had hold of each other and jerking each other just like they was trying to make each other behave, and go home and just then the pistol popped and Ed fell. They were cursing but it didn't seem like they was cursing each other, but each was cursing the men that was fighting. They seemed to be trying to quiet each other.

"Q. They didn't seem to be mad at each other? A. No, sir."

Sol Moffis, testifying for the State upon the question here, said:

"Q. I will ask you if you didn't see Ed make a grab or a lick at Bill? A. No, sir, he just took him that way (indicating) and kinda shook him and said he was a fighting s -- of -- a-b --.

"Q. They talked there something like a half a minute? A. It might have been a half a minute, I don't think it was over that.

"Q. And then the pistol fired? A. Yes, sir . . . .

"Q. How many minutes after you seen Ed take hold of Bill until the pistol fired? A. He says: 'Bill Conley, I am a fighting s -- of-a-b --,' and he about got the words out when the pistol fired."

Jim Stephens, a witness in behalf of defendant, among other things, said:

". . . . He turned and kinda threw himself to-ward Bill and they kinda catched hold of each other and the crowd kinda got between me and them and then they hollowed, 'Turn me loose and don't hold me --' (interrupting):

"Q. Which one was that? A. It was either Ed or Bill one, I couldn't tell which, and about that time the pistol fired and Ed fell."

The above excerpts are all that any witness (except defendant himself, to whose testimony reference will be hereafter made), either for the State, or for the defendant, said which is pertinent upon the contention that an instruction for manslaughter should have been given. It may be with fairness stated that in all of the testimony of the several witnesses, both for the State and the defendant, there is nothing else which even tends to show that the killing was not either murder in the second degree, or absolutely justifiable on the ground of self-defense.

The defendant, testifying for himself, which he did at great length, undertook to explain fully all of the facts and circumstances immediately preceding and occurring at the time of his shooting deceased. His testimony touching the facts which bear upon the necessity vel non for an instruction on manslaughter, and upon which such instruction must be bottomed, if it were required to be given, was as follows:

"Ed came back around and took Stephens and jerked him around and swore he was the 'fightingest s -- of-a-b -- that ever seen that place,' and he turned Stephens loose and grabbed me and when he grabbed me it wasn't until just a little bit until I felt something cutting and tearing my coat, and I says: 'What are you doing, Ed; my gracious, don't do that.' I thought it was a knife and he gave me another blow and I told him still to quit, and I begun trying to get away from him. He had me by the breast of the coat and I finally slapped the knife out of his hand and he cut me right there on the left hand and when I slapped the knife out of his hand he says: 'God damn you, I can get you,' and he got his gun clear up out of the overalls, that is up that way (indicating) and my gun fired and he fell, and then when he fell I rolled him over and there was his gun, and to keep somebody from getting his gun and shooting me as I went away, I took his gun in my left hand and my gun in my right hand and started away."

There is not another word in the lengthy explanation made of this killing by defendant either as to his intent, his reasons for shooting deceased or any other fact warranting an instruction for manslaughter. In other parts of his testimony he admitted having had, some eight months before, an altercation with deceased, who was his brother, and having then procured a gun with the intent to kill deceased, of which intent, however, he repented (temporarily, at least) before consummating the act; he admitted that he was carrying a pistol on the night that he killed his brother with the object and intention of protecting himself against his brother if he were assaulted; he admitted the former existence of a deep grudge between them, but avers that he and deceased had made friends.

There is but one other contention made either in the motion for a new trial or in the motion in arrest. This complaint is directed toward the admission and rejection of testimony for and against defendant. We have carefully examined the record and find but four instances where any exceptions were saved to either the admission or rejection of testimony, or to any other action of the court pertaining to the evidence, where exceptions were properly lodged. ...