State v. Cooper

• Decision Date: 30 April 1880
• Citation: 71 Mo. 436
• Parties: THE STATE v. COOPER, Appellant.
• Court: Missouri Supreme Court

71 Mo. 436

THE STATE

v.COOPER, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Newton Circuit Court.--HON. JOSEPH CRAVENS, Judge.

REVERSED.

George Hubbard and A. J. Harbison for appellant.

J. L. Smith, Attorney-General, for the State.

HENRY, J.

At the February term, 1879, of the Newton circuit court, the defendant was indicted for the murder of William Grimes. A trial at the August term, 1879, resulted in his conviction of murder of the second degree, and from the judgment against him, defendant has appealed.

The evidence disclosed the following facts: that the deceased and the defendant were brothers in-law, the latter having married a sister of the former, and that they had a misunderstanding in relation to a stock field.

Isaac Grimes, father of defendant's wife, testified that on the 1st day of November, 1878, Cooper came to his house and asked him if deceased bought the stock field. He and Cooper then went to where the deceased was hitching a team to a wagon, and Cooper asked the deceased if he bought the stock field from Jno. Grimes. Deceased answered: “I did--you know I did.” Cooper replied, “I bought Brison's third, and intend to have it, or have the biggest fuss that was ever had on Indian Creek.” After some further conversation, deceased said, “Cooper, if you will pay me for the little old stock field you may have it.” He replied, “I won't do it. I'll have it anyhow, or have hell over it.” This conversation occurred about 9 o'clock a. m., November 1st, 1878. On the 4th day of November the homicide was committed.

Mrs. Thursa Grimes, mother of the deceased, the only person who witnessed it, testified that on the morning of the difficulty which resulted in the death of her son, Cooper came to her house and asked for her husband. After he left, she went down to a spring on the premises where William Grimes was at work on a wagon wheel. He asked her to get him a piece of iron, and in returning with it to the spring she saw Cooper in the bed of a branch, then dry, approaching the spring, and witness and Cooper arrived there together. The deceased was stooping or bending over at his work, and never straightened up, but said to Cooper, “I suppose you are going to take that pasture from me any how.” Cooper said, ‘Who says so?’ Deceased replied, “It looks very much so by your turning your cattle in.” Cooper answered, “It's a God damned lie,” and deceased said, ““It is another,” and Cooper thereupon shot him, inflicting the fatal wound. When shot, deceased slapped his hand to his side, and Cooper said, “God damn you, don't you draw that on me.” After Cooper shot he drew his gun up as if he would shoot again, and witness knocked it to one side. Cooper then left. Deceased had a pistol, and it was found on the ground near his body. This occurred about ten o'clock in the forenoon, a half hour after Cooper was at the house inquiring for old man Grimes.

As a foundation for impeaching the testimony of this witness, she was asked if she did not, at her residence, in November, 1878, have a conversation with Abner Edmondson and W. W. Laymon, or one of them, at the time they stopped at her house and made some coffee, in which, speaking of the homicide, she said: “My son was doing something, and Cooper came up and a quarrel began, and my son shot first, and fired twice, and then Cooper shot him.” To which she answered she did not. In answer to a question, witness said she “did not say on the ground, before or during the time of the inquest, that she brought tools down to William and started back to the house and got up on the side of the hill, and heard Bill give Mr. Cooper the lie, and turned around, and about the time she turned, the gun fired.”

Mrs. Palmer, sister of the deceased, was at her father's house on the morning of the 4th of November; heard a large gun fire, and very soon after heard small one. Her mother called her, and told her Cooper had killed Bill; witness ran down and found him dead. Lee Sheppard, on the morning of the homicide, was in a field with Brison gathering corn 300 or 400 yards from the place where Grimes was killed; heard report of a very large gun, and in a short time another smaller; heard screaming and went to the place. Brison's testimony was to the same effect. He did not go to the spring. J. E. Meyers lived one-fourth or one-half mile from Grimes; he and Beavers were fixing floor in corn crib and heard two shots, one large, the other small, like shot gun and rifle; heard screaming and went to the place and found Grimes dead. This was substantially the evidence for the State.

For the defense, Abner Edmondson testified contradicting Mrs. Grimes, and stated that about the last of November, 1878, he and W. W. Laymon were at her house, and got permission from her to make some coffee by her fire, and while there, she said, speaking of the homicide, “her son was doing something, and Cooper came up, and a quarrel began, and her son shot first, and fired twice, and then Cooper shot her son.” W. W. Laymon's testimony was to the same effect.

Jacob Syler was on the ground where William Grimes was killed and present at the coroner's inquest, and heard Mrs. Grimes, before, or about the time of the coroner's inquest, make a statement that she “had brought tools down to Bill Grimes where he was at work at the wheel, and started back to the house, and got upon the side of the hill and heard Bill give Cooper the damned lie, and that she turned around, and about the time she turned around the gun fired.” He further testified that he saw a pistol there, (the same Grimes had when killed,) halfcocked, with one or more loads in it. John Branham was one of the coroner's jury. He saw on the ground a Colt navy pistol, four or five chambers of which were empty; it was half-cocked; there was one ball in a chamber of the pistol. The empty chambers had the appearance of having been fired recently. Charles Scott was also of the coroner's jury, saw the pistol; it was half-cocked; there was one load in it; looked as if fired during the day. Sidney Sweet was at the place where Grimes was killed, about one o'clock. Grimes' body was on the ground, and witness saw pistol about three feet from the body. He examined it, and it had the appearance of having been recently fired off; one load was in. When a pistol has been recently fired, there is a light gray tint on the chambers, and on the butt of cylinder at the tubes.

The defendant was introduced and testified for himself; and in his testimony contradicted old man Grimes, as to the conversation testified to by the latter. He stated that at that interview he and William settled the difficulty about the field; he agreeing to credit William with the price of it on a debt William owed him; that on the morning of the fatal difficulty, he was hunting his sheep, and carried his gun to shoot dogs, if he found any sheepkillers. Other evidence showed that he had had sheep recently killed by dogs. He also contradicted Mrs. Grimes, as to the...