State v. Davis

• Decision Date: 31 December 1924
• Docket Number: No. 25360,25360
• Citation: 267 S.W. 838
• Parties: STATE v. DAVIS.
• Court: Missouri Supreme Court

267 S.W. 838

STATE v. DAVIS.

No. 25360

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

L. M. Davis was convicted of assault with intent to kill with malice aforethought, and he appeals. Affirmed.

Perry T. Allen, of Springfield, and Herman Pufaill, of Bolivar, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, of Jefferson City, for the State.

DAVID E. BLAIR, P. J.

Defendant was convicted of assault with intent to kill with malice aforethought. The jury fixed the punishment at 2 years in the state penitentiary, and from the judgment rendered on such verdict the defendant has appealed.

A full transcript of the record and the evidence is before us, but defendant has not favored us with a brief. We have carefully read the testimony, and find that the learned Attorney General has fairly stated the facts, and we quote same as follows:

"The evidence on behalf of the state tends to prove the following:

"On Sunday afternoon of June 11, 1922, in the county of Polk, state of Missouri, Elmer Hensley, a young married man 34 years old, while employed as a farm hand by one Miller, went over to the pasture of their neighbor, L. M. Davis, the defendant, about a quarter of a mile from Hensley's home, for the purpose of looking for a male hog, which, it had been reported to Hensley, was in defendant's pasture without the latter's consent, and contrary to his desire. Hensley took with him a pair of pliers for the purpose of opening the water gate through which to get the hog out. He went inside defendant's pasture and started to cross a branch to get the hog, and was startled with a command from defendant, whom Hensley had not before seen there, `Get out of there you g____ d____ s____ of b____.' Hensley stopped suddenly and replied, `Fid, I am after my hog.' Defendant said, `O____ d____ you and your hog,' and fired at and hit Hensley from defendant's position about 25 yards away, using a shotgun. Thirty-one shot penetrated the body from the lower part of the abdomen to the top of his head. Hensley fell to his knees, and became unconsciow and continued so until the next day about 10 a. m., when he found himself in a hospital at Springfield, Missouri. "Hensley carried the pliers in his hip pocket, pinned in to avoid losing them in case he had to run after the hog. He had no other tool, instrument or weapon. The underwear Hensley was wearing at the time was identified and admitted in evidence, which showed shot holes and blood. Three No. 4 shot, which had been extracted from his body, were also admitted.

"It was further shown that defendant had made some remarks at a blacksmith's shop the day before about getting his `Zulu' gun out and loading it for Miller and Hensley. Defendant and Miller, Hensley's employer, had a few unpleasant words the day previous about Miller's hogs getting into his field and eating his crops. "The evidence on behalf of defendant tends to prove the following:

"The defendant was 60 years old, and had lived in Polk county all his life. Had been charged with and pleaded guilty to several misdemeanors, such as carrying concealed weapons, an affray, common assault, fighting, and disturbing the peace. On the Sunday afternoon in question, about 4 o'clock, defendant came home from a baptizing, and heard Hensley down in his fields calling hogs. Miller had about 45 head of hogs, and they had all been in defendant's field at different times prior to this date. This particular hog was a 3 year old male with long tushes, and was a fence outlaw, a vicious fighter, and weighed about 500 or 600 pounds. Defendant had told Hensley on Saturday, the day before, to stay off of his place, at which time Hensley cursed him and with the aid of a claw hammer sent defendant back to his plowing.

"When defendant heard the hog-calling down in the field, he picked up his shotgun and walked down there. The gun was loaded, and ha took it because he knew the hog was in there and that he was dangerous, and he also supposed Miller and Hensley were down there, and that they both had made vicious threats against him the day before, and took the gun to protect himself. When defendant got down there he found Hensley coming across his meadow with, a hammer in his hand. Defendant called to Hensley to halt, and Hensley said he did not have to halt. Defendant ordered him out of the field, and Hensley kept advancing toward defendant with a hammer in his right hand. After calling three times to halt, which Hensley failed to heed, defendant shot him one time in order to defend his life.

"On cross-examination defendant testified that neither he nor Hensley was standing when he shot, but both were advancing towards each other, and that he did not deny the shooting, but meant to hit Hensley. They were 25 or 30 feet apart when he fired.

"It was shown by one or two witnesses that Hensley was not unconscious, but was rational all the time after the shooting, and had the pliers and a hammer at the time he was shot. It was further shown by one of said witnesses, Ed Scroggins, that Hensley did not take a single step toward defendant, but was standing still when shot. The other witness, John Gulick, testified that Hensley stated to him after the shooting that he did not know why defendant shot him, but guessed that he was where he had no business."

The errors assigned in the motion for new trial relate mainly to the admission and exclusion of evidence, and the giving of, or refusal to give, certain instructions. It is also urged that the verdict is against the evidence and the weight of the evidence, and the result of passion and prejudice on the part of the jury.

There is no basis whatever for either of the last two assignments. The jury assessed the lowest punishment for felonious assault with malice aforethought. The weight of the testimony supports the state's theory that, in shooting the prosecuting witness, the defendant was wreaking his malice rather than defending his person or property. The evidence amply supports the verdict, and there is nothing...