State v. Dixon

• Decision Date: 06 December 1916
• Docket Number: No. 19683.,19683.
• Parties: STATE v. DIXON.
• Court: Missouri Supreme Court

190 S.W. 290

STATE v. DIXON.

No. 19683.

Supreme Court of Missouri, Division No. 2.

December 6, 1916.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Robert Dixon was convicted of second degree murder, and appeals. Reversed and remanded.

Defendant was convicted in the circuit court of Lincoln county for murder in the second degree. From a verdict and sentence fixing his punishment at ten years' imprisonment in the penitentiary, he has appealed, after the usual motions.

All of the parties, as well as all of the eyewitnesses, are members of the colored race. Jim Teague, the deceased, lived on a farm near Auburn in Lincoln county, while defendant likewise resided on a farm at a place called Scuffletown, some two miles and a half from New Hope, in Lincoln county. On the evening of the homicide there were some closing exercises of a colored school, which school was in the immediate vicinity of defendant's house, and about one-fourth to one-half a mile northeast thereof. Deceased and some three or four other of these negro residents of Auburn had come into defendant's neighborhood, ostensibly at least to attend these school exercises. Taking advantage of the opportunity or the excuse thus afforded, a number of them, including deceased, had gathered at defendant's house about 5 o'clock on the afternoon of February 27, 1915, and engaged in drinking a beverage composed of diluted alcohol and sugar, and also, as may be readily surmised, in shooting craps for money.

Defendant seems to have been winning, until, as the inference seems to be, deceased became offended thereat and quit the game, with the expressed intention of leaving defendant's house and of going to the exercises at the school. Before deceased left, however, a quarrel arose between defendant and deceased. This quarrel was over some trivial matter in sequence disconnected from, but inferentially it was an aftermath of, defendant's success in the crap game. In the course of this altercation deceased said to defendant, "You ain't done a day's work in a year," to which defendant replied that deceased was a damned liar. Thereupon deceased and defendant started toward each other as if to fight, but one of the witnesses who was present interfered and came between and stopped them, apparently before they had come to blows. On this question, however, that is, as to whether any blows were struck at this juncture, the evidence is doubtful and dark. In fact, because possibly all of the eyewitnesses are negroes, we may say that the entire record of the happenings just before and at the time of and immediately after the shooting are likewise dark and uncertain, because of the contradictions between the witnesses and because of their unwillingness or inability to tell what they saw and heard, or because they failed to carefully note the things which they saw and heard.

After the initial altercation and after the threatened fight between deceased and defendant had been stopped by one Ben Powell, who was a witness in the case, defendant sat down on a bed on the north side of the room, which bed seems to have been near a gun rack, in which the shotgun used in the homicide was lying. The testimony on the part of the state tends to show that deceased put on his overcoat preparatory, as he stated, to going with one Arthur Reynolds, another witness in the case, to the schoolhouse to attend the exercises. While deceased was putting his overcoat on and while he was actually engaged in buttoning it, defendant, applying toward him an abusive epithet, seized a shotgun and shot deceased, who ran out of the door and fell, dying instantly.

Upon searching the body of the deceased at the coroner's inquest, which was held next day, no weapons were found thereon. Proof came in that a brother of deceased, in the presence of at least two witnesses, searched the body on the evening of the killing and removed therefrom deceased's pocketbook, but found no weapon on him. To one Hammack, formerly collector of the county, defendant said, upon being apprehended, that "Bad whisky got me into trouble; I was crazy drunk and shot Jim Teague."

The defendant pleaded self-defense, and on his part the testimony tended to show that after the initial altercation between defendant and deceased, the latter who was drunk, or at least drinking heavily, left the room for a moment; returning he came toward defendant and struck defendant in the eye, and thereafter made a motion toward his hip pocket as if to draw a pistol, and thereupon defendant fired and killed him. This was substantially and in brief the testimony given by defendant in his own behalf. As to some of the facts recited by defendant, he was in a way corroborated by one Carter Moore, one of his witnesses. This witness says he saw some object in the hip pocket of the deceased, but he refused to commit himself to the fact that the thing which he saw was a pistol.

Upon the trial of the case the state drew from one of its witnesses the fact that deceased was the owner of a pistol; thereafter defendant inquired of one of the witnesses which he put on the stand whether this witness had ever seen deceased carry any weapon at any time. The witness replied that he had seen deceased with a gun on him several times and had heard other people say they had seen deceased with a gun on him. Neither time, place, nor the details of the carrying of this pistol by deceased were shown. That is to say, neither the manner in which deceased carried it, whether concealed or not, the capacity in which he carried it, nor the time at which he carried it, that is, whether it was sufficiently long before the homicide as to afford opportunity for reformation, was shown. There was some testimony in the case that deceased was drinking and noisy as he came with other negroes along the road from Auburn to the vicinity of defendant's house in the afternoon. Likewise counsel for defendant in his opening statement said that the defense would show that deceased was armed; that he had a pistol on him. As stated, there was no such proof in the case beyond the vague suggestion of the witness Moore.

The state in rebuttal was permitted to show, over the repeated objections and exceptions of defendant, that the general reputation of deceased for being a peaceable, quiet, industrious man was good in the neighborhood in which he lived.

Some hundreds of objections to the introduction of evidence on the part of the state are found lodged in the record. We have gone over this record with the utmost care and find but few of these entitled to consideration. Such of them as by reason of their importance, are entitled to notice, will be dealt with in our opinion.

Joseph R. Palmer, of Elsberry, and Creech & Penn, of Troy, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen. (James V. Billings, of Jefferson City, of counsel), for the State.

FARIS, P. J. (after stating the facts as above).

As forecast, numerous objections and exceptions to the offering of testimony on the part of the state are lodged in the record. But after a painstaking examination we find but six of these entitled to consideration. These are, to wit: (a) That threats made by defendant, without specifically naming defendant as the object thereof, were permitted to be offered; (b) that the state was allowed to show in rebuttal of defendant's testimony of his own good reputation, a cutting affray in which defendant seemingly got the worst of it, without showing that defendant was the aggressor, or at fault, or that he had been convicted therefor; (c) that the state did not offer on its side one Richard or "Piddle" Moore, present, as the record shows, in the courtroom at the time of the trial; (d) that the court refused to permit defendant to explain the alleged statement made by him to the witness Hammack as to his reason for shooting deceased; (e) that the state traveled outside of the defendant's examination in chief and cross-examined him as to his prior condition of feeling or animosity toward deceased; and (f) that the state was permitted to offer testimony of the good reputation of deceased as a quiet, peaceable, and industrious citizen, before that reputation had been attacked by defendant.

The above references to the testimony attacked by defendant, together with an attack made by him on an instruction given by the court, are all the points we find urged by defendant for a reversal, or which we have ourselves been able to find in the record, and which merit any consideration.

I. The assignment of error founded upon the alleged generality of the threat made is based upon the testimony of one Ben Powell, who stated that defendant told the witness shortly before the killing that two or three might get hurt. It is conceded that no specific reference was made to the deceased in this statement.

We need not go at length into a discussion of threats. The matter of the admissibility of prior and recent threats, even though they be general in their nature, was discussed by this court at great length in the comparatively recent case of State v. Feeley, 194 Mo. loc. cit. 314, 92 S. W. 663, 3 L. R. A. (N. S.) 351, 112 Am. St. Rep. 511. There the conclusion was reached that threats of the character here in question were admissible, when made recently before the homicide; the question of their weight, if they lacked specificalness, being for the jury as the triers of fact. Whatever the law on this subject may be in other jurisdictions (and it is conceded that some other states hold differently), we take it that since the Feeley Case the question of the admissibility of prior and recent threats, although such threats may be general in their character, is no longer an open question in this state. State v. Brown, 188 Mo. loc. cit. 465, 87 S. W. 519.

II. As forecast, the state showed by a Mr. Hammack, a witness of apparently high standing in the community, who had formerly been...