State v. Davis

• Citation: 217 S.W. 87
• Decision Date: 04 December 1919
• Docket Number: No. 21632.,21632.
• Parties: STATE v. DAVIS.
• Court: Missouri Supreme Court

217 S.W. 87

STATE v. DAVIS.

No. 21632.

Supreme Court of Missouri, Division No. 2.

December 4, 1919.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Sherwood Davis was convicted of murder in the second degree, and he appeals. Reversed and remanded.

The information on which defendant was tried charges him with murder in the first degree, for that, on the 23d day of April, 1918, in the county of Pemiscot, state of Missouri, he stabbed one H. P. Little with a knife, from the effects of which said Little died several days thereafter.

The prosecuting attorney elected to prosecute defendant for murder in the second degree. He was found guilty by the jury of murder in the second degree, and his punishment assessed at 15 years in the penitentiary.

From the judgment rendered upon said verdict, defendant duly appealed the cause to this court.

Evidence of the State.

There was substantial evidence in behalf of respondent, tending to show the following facts: The fatal wound was a straight stab in the right side, penetrating the upper part of the liver; also, some slight wounds around the neck. Little died on the third day after the difficulty. Deceased was a fair-sized man, heavier than defendant, and at the time was a justice of the peace. He was 66 years old, feeble, and had just gotten up from a spell of sickness. The difficulty occurred in the town of Tyler, Pemiscot county, Mo., in front of the home of Wm. Lumley.

The latter described the difficulty as follows:

"Me and Mr. Little was standing there talking about Mr. Brown's store, and Mr. Davis walked up to within about 15 feet and he pulled out his knife, Mr. Davis did, and he says, `Squire Little, what in the hell did you and old Duffy go to town for and try to get me in the first class, to take me from my family?' And Mr. Little says, `I didn't do it,' and Davis said, `You did do it, and what did you do it for?' And he went to waving his knife that way (indicating) and making for Mr. Little, and Mr. Little asked him to stay off of him with the knife. He says, 'Don't come on me with that knife,' and he didn't pay any attention. I asked Mr. Davis to stop, and he didn't pay any attention to me. Mr. Little says, `Davis, don't come on me with that knife,' and went to pulling his gun, and Davis made a jump at him, and about that time Mr. Little pulled his gun and snapped it at him, and then I turned my head down the street, and when I turned back, the old man was staggering over a pole there. I didn't see him get down, and the next time I looked back the old man was lying in the road limber. Mr. Davis walked up to him and got down on him and pulled his coat open and stuck his knife in him, and then pulled his knife up and made a lick at his throat; and then he reached over and got his gun and stepped over to the other side and hit him two licks in the back of the head as hard as he could. He stepped off from the body and threw the gun down on me and says, `You stop.' I says to him, `I haven't anything in the world to do with it' I says to him: `I don't want you to do anything more; you have done too much now.' He stepped off a `step or two, and he showed the gun, and he says, `If the gun had not snapped he would have got me,' and then he walked back off a few steps farther. I then called Mr. Oxford and Mr. Barnes, who were standing there, to come to me and help me lift him up, and then Davis turned and walked back, and he reached his hand down and helped me pull him up, and when we pulled him up his head fell over on me. I took a hold of his shoulders this way, and he fell over on me like this (indicating). Mr. Davis said, `Squire, I have killed you, and you know what I done it for,' and he walked on off, and that is all I know about the case."

After deceased fell backward over the log or pole, he made no effort to strike back.

Witness Barnes testified that, while deceased was lying on the ground and making no effort to get up, defendant got down on his knees and stabbed him with his right hand; that, after stabbing deceased, defendant struck him in the back of the head twice with the pistol; that Davis then assisted Lumley in picking deceased up; that, after telling deceased he had cut and killed him, he said: "You will die, and I am going to jail, but you brought it on yourself, Squire Little."

Witness Pierce (12 years of age) testified that defendant came back and helped deceased up after stabbing him. He said to deceased: "Old man, I know I killed you, and that was what I was aiming to do."

The testimony of Lumley, as shown by the record, was corroborated as to the main facts in the case by the following witnesses: L. C. Barnes, Mrs. Robinson, Mrs. Lumley, Miss Vestel, and Oscar Pierce.

Mrs. Lumley testified that, after defendant got up off of deceased, he broke the pistol and said: "You see what he was trying to do with me."

Barnes testified that defendant held the pistol up, after he broke it, and said, "That blank is all that saved me," referring to the blank cartridge.

Oscar Pierce testified that the pistol did not snap when deceased drew it, as the trigger spring was broken.

Shortly after the difficulty, defendant went over to a store in the town, and Mrs. Boston asked him what he did that for, and he replied: "Old Squire Little and Mr. Duffy have been up to town to try to get me back in first class." She said to him, "You are going to the penitentiary now." Appellant replied: "I don't care if I do; I would just as soon go there as anywhere else."

After the trouble, defendant told Briggance he had killed Little because the latter was trying to put him in the army; that he was going to leave, and wanted to know if Briggance had a little money. He showed his knife to Briggance and said he had done the work with it, and also produced deceased's pistol, which contained one cartridge that had been fired. He said he had taken the pistol from Little. Upon the advice of Briggance he gave himself up. Afterwards, defendant was arrested by J. Ham Smith, deputy sheriff, at Italy, Tex. On that occasion, he remarked that he cut deceased, "Because I wanted to kill the damned old son of b___h; if I had to, I would do it over"; that, if the deputy sheriff had been as late as Sunday, he would not have been caught. He said deceased had been trying to get him in the first class and take him away from his wife and babies; that deceased had a pistol. Defendant returned to Pemiscot county without requisition papers.

Threats made by appellant against deceased prior to the difficulty were given in evidence as follows: About 30 minutes before the trouble commenced, Duffy and defendant were at the home of deceased, and appellant was cursing Duffy, because the latter had a warrant for him. Deceased stepped to the door and told defendant he wasn't going to have any trouble. Appellant said: "There won't be any trouble to it. I will see you, old man, before the sun goes down." About 30 minutes before the difficulty commenced, defendant told Charles McAdams that he was fixing to leave and would whip deceased before he left.

There was nothing to indicate on the day of the trouble that deceased was intoxicated, although one witness heard he was drunk.

Defendant's Evidence.

Appellant's evidence tended to establish the following facts: That defendant, after, dinner, started uptown from his home to cash a check at the store. That he was then picking his teeth or trimming a match with his knife. That he met the little Vestel girl and his sister-in-law, who asked him for some money. As he stepped upon the walk where Lumley and deceased were talking, he did not recognize deceased at first, but did so after he stopped. He asked them if they were all well, and then asked deceased why he wanted to put him in first class and take him from his wife and children. Deceased denied any such purpose, whereupon appellant said deceased was telling a lie. Deceased took his foot off the fence, squared himself, took a revolver from his pocket, told defendant he would shoot his d___d heart out, presented the revolver at defendant, and snapped it. Fearing he was going to be killed, appellant, who still had his knife in his hand, as he had been using it as he walked up, grabbed deceased's revolver, and they scuffled a bit. During the scuffle, defendant cut the deceased as the latter was still trying to shoot him. Finally, defendant got hold of the revolver, struck deceased somewhere about the neck, and the latter fell over on account of a hole at the place of the difficulty. They went to the ground together. Deceased, with his revolver in his right hand, continued in his attempt to shoot appellant. The latter, with his knife in his left hand (being left-handed) struck deceased one lick with his knife, but did not move deceased's coat to do so. Defendant then got up, and deceased started up after him, whereupon appellant hit him over the head with the revolver, and said: "Don't get up here." Deceased did not fall limp or unconscious, but arose with the help of appellant and Lumley and walked to the house, after appellant had opened the revolver and showed it to Lumley and deceased so they could see what spared his life. Appellant said to deceased, "I had to cut you, and you know what it was done for." Deceased answered, "If I had done what I came out here to do, you wouldn't have cut me."

The above evidence of defendant was corroborated by his sister-in-law, Miss Josie Duffy.

Flora Vestel, recalled by appellant, testified that Josie Duffy saw part of the difficulty and then went away with her (Flora's) sister; that defendant was talking with Josie just before the trouble, but did not have his knife out, nor was he trimming a match; that he took his knife out when about ten steps from deceased.

Two witnesses testified that Lumley had made conflicting statements, in regard to the difficulty; that on one occasion Lumley said defendant struck at deceased before the...