State v. Ferrell

• Decision Date: 14 March 1911
• Citation: 136 S.W. 709,233 Mo. 452
• Parties: STATE v. FERRELL.
• Court: Missouri Supreme Court

136 S.W. 709

233 Mo. 452

STATE v. FERRELL.

Supreme Court of Missouri, Division No. 2.

March 14, 1911.

1. HOMICIDE (§ 159) — ADMISSION OF EVIDENCE—MALICE.

In a prosecution for killing one who was shot by a bullet which first struck G.'s horse and then struck decedent, in which the state's theory was that accused intended to kill G., against whom he had a grudge, and did not see decedent, evidence was admissible to show malice that about a month before the killing some one shot at G. from the timber near his house, and that immediately thereafter he saw accused come out of the timber with something in his hand resembling a gun.

2. HOMICIDE (§ 338)— APPEAL — HARMLESS ERROR—ADMISSION OF EVIDENCE.

Even if the evidence was inadmissible, it was harmless; G. having testified that accused shot at him some years before, and the evidence showing that accused intended to kill him at the first opportunity.

3. CRIMINAL LAW (§§ 715, 720)—TRIAL—ARGUMENT.

The prosecuting attorney could comment in his argument on a rifle and bullet introduced by accused, and attempt to show the jury that the bullet would not fit the rifle, in order to sustain the state's theory.

4. CRIMINAL LAW (§ 721)—TRIAL—ARGUMENT —ACCUSED'S FAILURE TO TESTIFY—COMMENT BY PROSECUTOR.

Accused testified that he did not fire the fatal shot, but did not attempt to explain a number of incriminatory facts. In his argument the prosecuting attorney stated that certain cartridges and a gun were taken to accused's house, and asked where the gun was, stating, "He alone can explain to you," and upon objection the court ruled that the argument was proper. In his closing argument the prosecuting attorney again referred to the gun, and stated that it was accused's duty to explain his possession thereof, "or his neck is in jeopardy," the court merely remarking, "Yes, sir," upon an objection to the argument as an improper comment on accused's failure to testify, and the prosecutor again asked what accused had done with the gun, and that it was for accused to explain where he put it, and the court stated on objection that there should be no comment on accused's failure to testify on any point. Held, that the prosecuting attorney's statements were improper comments on accused's failure to testify, in violation of Rev. St. 1909, § 5243.

5. CRIMINAL LAW (§ 730)—APPEAL—HARMLESS ERROR—PREJUDICIAL EFFECT—IMPROPER ARGUMENT.

The improper comments were highly prejudicial to accused; the court's action upon the objections made thereto not being sufficient to cure the prejudicial effect thereof.

Appeal from Circuit Court, Callaway County; A. W. Walker, Special Judge.

W. C. Ferrell was convicted of second degree murder, and he appeals. Reversed and remanded.

Harris & Hay, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

BROWN, J.

Defendant was convicted of murder in the second degree for the alleged killing of one William Moore, in Callaway county on June 17, 1909. From a judgment sentencing him to the penitentiary for 10 years, he appeals to this court.

W. C. Ferrell (the defendant), J. F. Liggett, J. L. Dunn, Mollie Liggett, and Charles Ferrell were jointly charged by indictment with murder in the first degree; and the defendant having secured a severance was separately tried on March 28, 1910. At the conclusion of the evidence, the state elected to abandon the charge of murder in the first degree, and ask only for a conviction of murder in the second degree.

The evidence on the part of the state tended to prove that one William M. Grider, who lived near defendant in Callaway county, started on horseback to Jefferson City, and, after he had passed 1,670 feet beyond defendant's house, met the deceased (Moore) walking along the public road. Grider stopped to talk with deceased, when a shot was fired from the direction of the defendant's house, and the bullet which produced the tragedy first struck Grider's horse and then passed into the body of Moore, producing his death within an hour.

The evidence does not indicate that any enmity existed between defendant, Ferrell, and the deceased, and the theory of the state is that, as deceased was standing behind Grider's horse and the view somewhat obstructed, the defendant did not see deceased, but fired the fatal shot intending to kill Grider, against whom he harbored intense malice.

The state's evidence also tended to prove that defendant came to Jefferson City on May 22, 1909, and purchased a Springfield army rifle, caliber 45/70, and a box containing six cartridges, from one Lohman, a merchant. After Moore was killed, the cartridge box was found in defendant's house, but the rifle was not found; and upon being arrested defendant told the sheriff he had bought the rifle for one Kesser, who was going to Arkansas. At the trial a Springfield rifle of the same make as the one purchased by defendant was introduced, likewise the bullet which produced the death of Moore, and several other bullets and shells, alleged to be of the varieties used in a Springfield army rifle, though it was contended by defendant that the bullet which killed deceased and lodged in his clothing was much smaller in size than those usually fired from a 45/70 caliber Springfield rifle.

All of defendant's assignments of error pertain to the admission of evidence and improper arguments of the prosecuting attorney and his assistant; and such additional points in the evidence as are necessary for a full understanding of these matters will be noted in connection with our rulings on the alleged errors complained of.

The defendant contends that the court committed reversible error in permitting the witness William Grider to testify that some one shot at him from the timber near his house in the month of May, 1909; the bullet passing through the top of his buggy....