State v. Delcour

• Decision Date: 23 February 1923
• Docket Number: No. 23830.,23830.
• Citation: 248 S.W. 606,297 Mo. 321
• Parties: STATE v. DELCOUR.
• Court: Missouri Supreme Court

248 S.W. 606

297 Mo. 321

STATE v. DELCOUR.

No. 23830.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge.

Frank Delcour was convicted of second degree murder, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and R. W. Otto, Asst. Atty. Gen., for the State.

DAVID B. BLAIR, P. J.

Tried for murder in the first degree and convicted of the second degree of that offense, wherein imprisonment for 45 years was imposed by the jury, defendant has appealed.

The homicide occurred on January 19, 1921, in Shannon county. Defendant (whose correct name appears to be Delcore, instead of Delcour, as charged in the information) killed one Jack Hoover near Blue Spring on Current river.

Delcore was 35 years of age. Deceased was apparently much younger, since he is referred to by the witnesses as "this boy Hoover." A number of men and women were gathered at Blue Spring for a picnic and fish fry. The day was Sunday. Near the spring was a house which seems to have been occupied by one Will Holland, and it was at this house that the killing occurred.

Since no question is raised as to the sufficiency of the evidence to authorize submission of the case to the jury on first degree murder, it will be unnecessary to detail the evidence at any length. The testimony on the part of the state tended to show the following facts: Defendant, one Oscar Reistach (or Reisteak), and Evart Barnhardt went from the home of Tom McCabe, a stepbrother of the defendant to the Blue Spring. At the ford near the spring they saw deceased, Alex Larkin, and some women. They reached the spring near noon and there found Holland and Larkin and others. Defendant and one of the others came on horseback. Defendant was carrying a Winchester rifle.

Defendant and some of his party had been drinking whisky, although the extent of their indulgence is not clear. It seems that defendant had some reason to think the deceased was mad at him. Defendant and Oscar Reistach and Evart Barnhardt found the deceased at Holland's house. He had a weapon in his hand which was described by the witness as a "22 gun." The question of whether deceased was mad at the defendant was then discussed, and deceased denied it. Defendant then insisted upon deceased taking a drink with him and, after some disclaimer of the habit or any desire to indulge, deceased finally yielded and took a drink. Deceased asked defendant if it was true that he had stated that he had come to shoot up the bottoms or tear up the fish fry or something to that effect. Defendant denied this, and deceased seemed contented and set his gun down in the corner of the porch, and then sat down on the other end of the porch at a distance of 12 to 16 feet away from his gun. The porch was variously estimated at from 6½ to 8 feet wide and from 12 to 16 feet long. During the conversation, but how long after does not clearly appear, defendant asked deceased who told him he had said he was going to shoot up the bottoms and deceased refused to tell him, and, according to at least one of the witnesses, told defendant he could shoot him before he would tell. Thereupon defendant lifted his rifle and shot deceased in the face while he was still sitting on the porch at least 12 feet from his gun. He apparently died instantly. It appears from the testimony of Oscar Reistach and Evart Barnhardt that deceased was not making the slightest attempt at the time of the shooting to reach for his gun or to draw any other weapon or to make any aggression whatever against defendant.

Some of the state's witnesses testified to statements of defendant made prior to the killing of a general threatening nature, but not specially directed toward deceased. For example, one Laura Moon testified that she heard defendant say "Boys, I have just started out, and I am going to be a worse man than Luther McIntire ever was." Since we are not enlightened concerning the extent of the depravity of Luther McIntire, we cannot know just how bad defendant intended to be. Other witnesses testified to remarks of a similar character. Presumably Luther McIntire had at least some local reputation as a "bad man."

The record is exceedingly vague concerning the acts of defendant after the shooting. It rather unsatisfactorily appears that he hid himself in the woods for some time thereafter and was fed by his friends; that some sort of pursuit was organized appears from defendant's own testimony, wherein he said that two men of the neighborhood, upon one occasion when they were hunting him, shot at him several times. One witness testified that defendant finally came in and gave himself up.

Defendant admitted the killing, but sought to justify his act on the ground of self-defense. There is some testimony by at least two witnesses that defendant told them deceased snapped his gun at him three times, and he had to kill him. One of them, John Reisteak, testified that defendant told him Oscar (meaning Oscar Reistach) would swear Hoover snapped his gun at him three times, and that defendant asked said witness to see Oscar and post him up a little better. Defendant denied these conversations, and testified that deceased reached for his gun, but did not get to it, as it was four or five feet away; that after he was shot he fell toward the gun. Neither of the two disinterested eyewitnesses corroborated defendant's story of the killing. We quote from defendant's testimony as follows:

"A. We rode up to the fence, the three of us, Barnhardt and Reisteack and I spoke and Holland and Larkins did not speak. They went on towards the Spring, Holland had a gun and went on towards the Spring and Jack Hoover was standing on the porch with a gun and he said, `Frank I heard you have come up here to tear up the fish fry' and I said I had not done it, and Reisteack commenced apologizing, and he said, `All right I will set my gun down then.'

"Q. Where did he set it? A. Down by the door facing, the door was about—hardly middle way of the room, it was nearer one end than the other and he sat down on the other side of the door, about four or five feet, facing me and I walked up to the end of the porch and asked him who told him I was going to tear up this fish fry, and he said he would not tell me, and I said `Why?' and I asked him again and he said, `Shoot if you want to, I won't tell you nothing,' and he reached for his gun, and I shot.

"Q. Which way did he fall when he fell? A. Towards his gun.

"Q. Tell the jury if you thought he was going to get his gun and use it on you? A. Sure, I thought he was going to shoot me; that occurred to me.

"Q. Did he and Holland both come out with the guns when you went up there? A. Yes, sir; Holland was ahead of him. Hoover had his gun something like this at first. (Indicating.)"

There was some evidence offered by defendant tending to show bad feeling on the part of deceased toward defendant and predictions by deceased of trouble with defendant over a gun belonging to deceased. It appears that one Shelton had broken or bent said gun by striking defendant over the head with it. Apparently deceased thought defendant ought to pay for the gun, and said they might have trouble. Charlie Allison, a witness for defendant, testified that deceased said if he had to get into trouble with Delcore, he would want a shell that had powder in it. It was intimated that some one had previously tried to shoot defendant, and the cartridge was found not to contain any powder.

The trial court submitted the case to the jury on murder in the first and second degrees and upon self-defense. Although defendant asked an instruction on manslaughter and excepted to its refusal, no complaint is made in the motion for a new trial that the court failed to instruct on all the law of the case.

I. There are three assignments of error in the motion for a new trial, which we are unable to consider, for the reason that there is nothing in the record upon which to base a review. Error is assigned because the trial court overruled defendant's application for continuance, his plea in abatement, and his motion to quash the information. None of these motions has been included in the record before us. If any evidence was offered on the plea in abatement, the bill of exceptions does not so show. There is therefore nothing before us for consideration on these three assignments.

II. Appellant complains that the trial court admitted incompetent evidence offered by the state over his objection. A careful reading of the record does not disclose a single objection to any of the testimony of the state as it was offered. We would be justified in disposing of the assignment adversely to defendant for this reason. The record discloses two instances where defendant moved to strike out testimony and...