State v. Feeley

• Decision Date: 31 January 1906
• Parties: STATE v. FEELEY.
• Court: Missouri Supreme Court

92 S.W. 663

194 Mo. 300

STATE v. FEELEY.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

On Rehearing, March 6, 1906.

1. HOMICIDE—MALICE—ADMISSIBILITY OF EVIDENCE.

In a prosecution for murder, evidence of a statement by the defendant before he met deceased that he was "a straight shot and he was a game man," and witness would find it out, though not a part of the res gestæ, was admissible to show general malice, and a disposition on the part of the defendant to do a criminal act.

2. CRIMINAL LAW—APPEAL—RECORD.

Questions as to misconduct of counsel not shown by the bill of exceptions cannot be considered on appeal, since matters of exceptions which occur in the presence of the court cannot be shown by affidavits unless the court refuses to sign the bill when presented to him on the ground that the matters stated are not true.

3. SAME—HARMLESS ERROR—CROSS-EXAMINATION OF DEFENDANT.

Though Rev. St. 1899, § 2637, prohibits by implication the cross-examination of a defendant in a criminal case touching matters not testified to by him in his examination in chief, it was not ground for reversal in a prosecution for murder to require the defendant to testify on cross-examination whether certain persons were present at the place where he testified on direct examination that the difficulty between him and deceased had taken place, since such cross-examination was immaterial.

4. HOMICIDE — EVIDENCE — REPUTATION OF DECEASED.

Where the defendant in a prosecution for homicide introduced evidence that the deceased was a quarrelsome and dangerous man when drinking, the state could show in rebuttal his general reputation for peace, quiet, and good citizenship where he resided.

5. SAME.

In a prosecution for murder, where defendant testified that he shot deceased because he was afraid deceased was going to kill him, evidence of the character of deceased for being quarrelsome and dangerous when drinking was properly admitted.

6. SAME—INSTRUCTIONS—MOTIVE OF DEFENDANT.

Where the defendant in a prosecution for murder testified that he shot deceased to defend himself, the failure of the court to instruct on the question of the defendant's motive was not error.

7. SAME—PROVOKING DIFFICULTY.

In a prosecution for murder, evidence tending to show that defendant was anxious to get into a difficulty with some one, particularly the deceased; that he made frequent aggravating remarks in the presence of deceased to provoke the difficulty; and that he shot deceased while unarmed and even after he was down—was sufficient to justify an instruction as to defendant's right to defend himself where he voluntarily entered into the difficulty.

8. SAME.

One who voluntarily entered into a difficulty for an unlawful purpose, such as gratifying malice, is not justified in killing the other in self-defense.

9. CRIMINAL LAW — INSTRUCTIONS—IMPEACHING WITNESSES.

In a prosecution for homicide, an instruction that if any witness had been impeached the jury were not bound to disregard his testimony but were at liberty to disregard the whole or any part of it, or believe or disbelieve him, as they might believe that he had testified truthfully or falsely, was not erroneous as bringing into prominence the evidence of the single witness who had been impeached.

10. INDICTMENT — OFFENSE INCLUDED IN CHARGE—LESSER DEGREE OF HOMICIDE.

Under Rev. St. 1899, § 2369, providing that any person found guilty of murder in the second degree or of any degree of manslaughter shall be punished according to the verdict of the jury, though the evidence in the case shows him to be guilty of a higher degree of homicide, the state on indictment of a person for murder in the first degree may elect to prosecute him for murder in the second degree, and the defendant will have no right to complain of this course.

11. SAME—APPEAL—RECORD—CORRECTION.

No record, after being lodged with the clerk of the Supreme Court, can be changed without the permission of the court, duly entered of record.

Appeal from Circuit Court, Bates County, Argus Cox, Special Judge.

Robert Feeley was convicted of murder in the second degree, and appeals. Affirmed.

Scott & Bowker, Francisco & Clark, and W. W. Graves, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, P. J.

At the October term, 1903, of the circuit court of Bates county the grand jury of said county preferred an indictment against the defendant, Robert Feeley, charging him with murder in the first degree, in having, on the 8th day of September, 1903, at said county, shot and killed, with a pistol, one Martin Hoots. There were two mistrials. Thereafter, at the May term, 1905, of said court, the defendant was again put upon trial on the charge of murder in the second degree, convicted, and his punishment assessed at 10 years' imprisonment in the penitentiary. He filed motions for new trial and in arrest of judgment, which being overruled, he saved his exceptions, and appeals to this court.

The evidence tends to show that the defendant was born and raised in Bates county, near a small town called Burdette. The defendant, some 12 years before the trial of this cause moved to Nevada, in this state, where he has resided ever since. On the 8th day of September, 1903, defendant left his home in Nevada for the purpose of visiting his father at his home near Burdette. He went by train to a little place called Archie, where he hired one Frank Calhoun to take him in a buggy to Burdette. While on the road to said town the defendant pulled a pistol out of his pocket and remarked to Calhoun that he was a straight shot and a game man, and that he, Calhoun, would find it out before he got back. When Burdette was reached they saw Martin Hoots, the deceased, with a gun on his shoulder, walking along in front of a store owned by a man named Buel Mudd. There was evidence tending to show that defendant said, "There goes a dirty coward," and that deceased, who appeared to have heard the remark, replied, "If he calls me a dirty coward, I will take it up." Deceased went into the store to buy some shotgun shells, but was told that there was none in stock. Deceased then set his gun down in the store, and a friend picked it up and carried it away to the residence of Dr. Cash. David Roach was sitting on the porch of the store when defendant got out of his buggy. As deceased came out of the store, and was passing by Mr. Roach, he greeted the latter with, "Hello, Dave." defendant, who was near by, said, "Who in the hell are you?" Deceased replied, "I don't know as it's any of your business." Defendant then said, "You are not so game but what I am just as game as you are." To which deceased replied, "If you are looking for trouble, you are up against it." Then defendant said, "You run on home," and deceased rejoined, "You had better make me run on home." Mr. Roach then walked away with deceased about a distance of 60 feet, and deceased asked who that was, at the same time saying he thought it was Bob Feeley, and that he loved every man named Feeley. He also told Mr. Roach that he had had some trouble with Jim Fenton, and had shot at the latter to scare him, but that the next time he shot he would shoot to kill Fenton. Prof. Maxey, who was near by, saw defendant on the porch of Roach's store take a pistol out of his pocket, wave it around his head, and then walk off the porch. Defendant followed after deceased, but Mr. Roach took hold of him and led him back to the store, when defendant said, "Who is that son of a bitch?" Being told deceased's name, defendant said: "He is looking for trouble. I will fix him if he bothers me." Defendant then took his pistol out of his pocket and exhibited it to Roach and others. He appeared to be intoxicated, and he and deceased, who was drinking, had several disputes during the afternoon.

Deceased and one Jim Fenton, who lived near the edge of the town, had had some trouble in the forenoon of the day of the homicide, and deceased had been up to Fenton's a time or two to see him. After he returned from Fenton's house, the last time he was there, and about half an hour before the shooting, one Wilkerson introduced deceased to the defendant. The two men shook hands, the deceased remarking: "Give me your hand, Bob. I understand you are a brother of Crit and Frank Feeley." Both men appeared to be friendly, and a short time afterwards they were seen by several persons standing near the hitch rack, drinking whisky. Calhoun, seeing the defendant's condition, tried to get him away, and did succeed in getting him into the buggy. Just then the deceased passed by, on his way to the store, and said to the men standing there, "The coward would not come out." About this time some man came out of the blacksmith shop and told defendant that deceased was talking about him, and defendant at once got out of the buggy and told Calhoun to go on home. Cothrien, a witness, told defendant to get back in the buggy, and assured him that deceased was talking about Jim Fenton, with whom he had had trouble. Defendant then said he was going to see Fenton, and started towards Fenton's residence, and while on the way he met Mrs. Fenton and had a talk with her, after which he was seen at the back of said blacksmith shop, where he again met deceased. A witness saw deceased take a drink out of defendant's bottle and then throw the bottle down. The two men stood talking for a few minutes, when defendant fired a shot, and deceased fell. Defendant then fired four more shots in rapid succession, which took effect upon deceased, and he also struck deceased on the back of the head with his pistol. He then threw his pistol and hat on the ground and walked towards an iron bridge, a short distance off. While on the bridge defendant waved his hands over his head several times, and then returned to where the dead body lay. In the meantime several persons appeared on the scene and saw that Hoots was dead, and that defendant's...