State v. Cropper

• Decision Date: 25 March 1931
• Docket Number: No. 30925.,30925.
• Citation: 36 S.W.2d 923
• Parties: THE STATE v. JIM CROPPER, Appellant.
• Court: Missouri Supreme Court

36 S.W.2d 923

THE STATE v. JIM CROPPER, Appellant.

No. 30925.

Supreme Court of Missouri, Division 2.

March 25, 1931.

Appeal from Ozark Circuit Court. — Hon. Robert L. Gideon, Judge.

AFFIRMED.

Stratton Shartel, Attorney-General, and Edward G. Robison, Assistant Attorney-General, for respondent.

(1) The court did not err in not allowing the defendant to talk with his witnesses before the trial began. There is nothing preserved by the record to show that such request was ever made, so there is nothing before the court for review. (2) There is no law compelling a witness to grant interviews to the attorneys. The way for the defendant to secure testimony is to take the deposition of the witness. The State must endorse the name of the witnesses on the information, and the defendant has a right to take the deposition of such witnesses. Sec. 3966, R.S. 1919. (3) The wife of the deceased was asked if any of the shot struck her baby, and upon affirmative reply, the attorney for the State asked if the baby was in the court room, and witness stated that it was not. Thereupon, the attorney for the State requested witness to bring the child into the court room. The attorney for the defendant objected to the baby being exhibited, on the grounds that it was not material, and would be prejudicial to the defendant. The child was brought into the court room, and the witness testified that one shot struck the child above the eye, pointing out the place it was hit. It was a circumstance in the case tending to show how many shots were fired, the range thereof and who was injured thereby. The child was not disfigured and had fully recovered. The mother had testified to the age of the child and the fact that it had been shot. It was within the discretion of the court to have refused this request to exhibit the child, but it was no abuse of his discretion to permit the jury to see the child. (4) The testimony of the sheriff as to what happened when defendant was in jail, stating in effect that he (the sheriff) brought in some prisoners and put them in the jail; that he listened to the talk between these men and the defendant; that they began by telling each other what they were in for; that the defendant told these men about the trouble over the still; that deceased had turned him in. Then one of the other men remarked that any one that would turn in a man for operating a still should be killed, and the defendant thereupon replied. "Well, there is one that will not turn anyone else in." This was a circumstance to be considered by the jury on the question of the motive. (5) The court's ruling in permitting the State to show that the defendant had purchased New Club No. 12 gauge black powder shells, loaded with No. 4 shot, was not error. This purchase of black power shells was made in April, May or June, 1929. The same kind of shells were found at the tree where defendant stood when he shot the deceased. Deceased was killed by No. 4 shot. This was a circumstance bearing directly on the defendant's participation in the shooting. It showed he was possessed of the means to kill the deceased. It was not too remote. Shotgun shells do not become ineffective by reason of being a few months old. (6) The testimony concerning mule tracks was admissible, and its admissibility appears when the entire situation surrounding this circumstance is shown. The defendant, on direct examination, testified to the same facts. (7) Defendant's reputation not having been attacked by the State, he could not offer evidence as to his general reputation for truth and veracity. State v. Fogg, 206 Mo. 716. (8) The verdict is sufficient. Sec. 3232, R.S. 1919.

HENWOOD, J.

The defendant appealed from the judgment of the Circuit Court of Ozark County, where he was convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life, in accordance with the verdict of the jury.

The record in this case contains nearly five hundred typewritten pages of evidence. For the purposes of this opinion, however, the evidence may be stated within reasonable limits.

The following evidence was adduced by the State in its case in chief:

On August 28, 1929, Orval Shipley, the victim of the alleged murder was shot and killed while driving an automobile in the vicinity of Sycamore in Ozark County. At that time, Shipley was twenty-one years of age, and had lived near Fairfax, in Atchison County, for about two years. He had previously lived in Ozark County, in the neighborhood where he was killed, and had known the defendant who also lived in that neighborhood, for several years. Shipley and his wife and baby, two years of age, and his wife's brothers. Edward and Edgar Herd, had been visiting with Shipley's father and other relatives and friends for about a week. The defendant lived about a mile from the home of Shipley's father, and about a mile and a quarter from the place where Shipley was killed. On Thursday or Friday of the week before Shipley was killed the defendant's son. Henry Cropper, asked Shipley and the Herd boys to go with him to a whisky still which was located near the defendant's home. They made the trip in Shipley's automobile, and Shipley and Edgar Herd remained in the automobile, some distance from the still, while Henry Cropper and Edward Herd visited the still, and got a quart fruit-jar of whisky and a gallon jug of beer. The defendant followed them to the still, and reprimanded his son, Henry Cropper, for going there, and went with them from the still to the automobile, where he had a conversation with Shipley. The defendant accused Shipley of stealing a still from him while he (the defendant) was serving a term in the penitentiary. Shipley said he had nothing to do with that still. The defendant was carrying a shotgun that day. After they left the defendant, Shipley told the Herd boys he bought the still which the defendant accused him of stealing. On the following day, Friday or Saturday, Shipley and the Herd boys went to Gainesville and informed the sheriff of the still near the defendant's home. They told the sheriff it was the defendant's still. Thereafter, on Friday or Saturday night, the sheriff seized the still and destroyed it. On Sunday night, some one cut two tires on Shipley's automobile. On Monday night, five shots, from a shotgun, were fired into the rear of Shipley's automobile while Shipley was driving toward his father's home, with his family and his father's family and the Herd boys. Shipley stopped the automobile, and either he or one of the Herd boys returned the fire with three shots from a rifle they had borrowed that day and were carrying in the automobile "for protection." Earlier that evening, the defendant was seen in that neighborhood, carrying a gun, and, when he learned that Shipley had gone, shortly before, in a different direction, he changed his course, and went in the direction that Shipley had gone. On Tuesday morning, about eight o'clock, the defendant was seen again, carrying a gun, near the place where Shipley was killed in the morning of the next day. Between nine and 9:30 o'clock the next morning, Wednesday, August 28, 1929, Shipley left his father's home in his automobile, with his wife and baby and the Herd boys, and started on his homeward journey, to Atchison County. Shipley was on the left side of the front seat, driving, and Edward Herd on the right side. Mrs. Shipley was on the left side of the back seat, with the baby on her lap, and Edgar Herd on the right side. At a point about a quarter of a mile from the home of Shipley's father, while the automobile was proceeding slowly up a rocky hill, in a westerly direction, either two or three shots, from a shotgun, were fired at them from the south or left side of the road. Shipley was mortally wounded by the first shot, and an examination of his body disclosed numerous shot holes in his left shoulder and in the left side of his neck, face and head. One No. 4 shot was removed from his body by a physician. Edward Herd was hit in the face by the second shot and seriously wounded. Both Mrs. Shipley and the baby were hit in the face by stray shot or "shivers of shot," but not seriously wounded. Edgar Herd was not hit. Gunpowder smoke was seen in the trail of each of the shots fired. Edgar Herd testified: "When we got something like pretty close to the top of the grade, the gun fired on the east side of a tree; and Mr. Cropper, that is, this defendant, Jim Cropper, walked out on the west side (of the tree) and fired the gun; and I left the car at that time. The last I saw him he was standing there, and I looked over the guard board, and he was standing there, had his gun set down by his side, hold of the barrel. He was looking toward the car." The shots were fired at a distance of about sixteen steps from the automobile. Lige Smith, a farmer in the Sycamore neighborhood, testified that, about 9:30 o'clock that morning, he saw the defendant, about a half of a mile east of the point where Shipley was killed, carrying a gun, and "walking very fast" through a field; and that, when the defendant saw him, the defendant "dodged into the brush," and went up Bryant Creek, in the direction of Dewey Russell's home. Two empty shotgun shells were found at or near the place where shots were fired at Shipley and his companions, one on Wednesday, sometime after Shipley was killed, and the other on the following day. Both of these shells were New Club shells which had been loaded with black powder, for a No. 12 shotgun. A.P. Morrison, a storekeeper in the neighborhood where the defendant lived, testified that, in the spring of 1929, he sold to the defendant some New Club shells, for a No. 12 shotgun, loaded with black powder and No. 4 shot. D.S. Furnell testified that, sometime after Shipley was killed, the defendant told him he "had had trouble with Shipley and the Herd boys." The sheriff testified that, after the defendant was arrested, the defendant s...