State v. Fish

• Decision Date: 29 May 1917
• Docket Number: No. 20037.,20037.
• Citation: 195 S.W. 997
• Parties: STATE v. FISH.
• Court: Missouri Supreme Court

195 S.W. 997

STATE v. FISH.

No. 20037.

Supreme Court of Missouri, Division No. 2.

May 29, 1917.

Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.

Vander Fish was convicted, and appeals. Reversed and remanded.

Under an indictment charging him with murder in the first degree, defendant was tried in the circuit court of Bollinger county, found guilty, and his punishment assessed at imprisonment in the penitentiary for life. Defendant duly appeals.

The evidence tends to show that defendant shot and killed one John W. Robertson on the 23d day of July, 1915. The killing occurred on a public highway about a mile from Zalma, Mo.

The state's evidence tends to show that at the time of the killing deceased was riding in a wagon, reading a newspaper, and appellant and others drove up from the rear in another wagon; that appellant fired two shots striking the deceased, causing him to fall off and under the wagon. After deceased struck the ground three more shots were immediately fired, and appellant was seen standing about an arm's length from the deceased. No words were spoken prior to the shooting, but immediately after the shooting appellant or his companion said, "You see now what you get for the way you done me." Four bullet holes were found in the back part of deceased's head, the bullets coming out of the front part of the head. A newspaper was still clutched in deceased's right hand. Death appears to have been instantaneous.

The evidence on the part of the defendant tends to establish self-defense. The appellant testified that he, together with another, were walking along the road when they came upon the deceased, in company with another, and heard deceased say, "There are the sons of b____; G____ d____ them, I am going to kill both of them," and grabbed for his right pocket. At this point appellant shot deceased. Appellant stated that he had heard of many threats made against him by the deceased, and had been told that the deceased was a dangerous character, and that he thought him a dangerous man. Other evidence tended to show that deceased's reputation as a peaceful, law-abiding citizen was bad, and that appellant's reputation in this regard was good. It appears that deceased and appellant had had a prior difficulty at the home of a man named Casteel, and that Robertson had brought on the fight, and in that fight cut the appellant in several places.

In rebuttal the state offered evidence to the effect that the reputation of the deceased as a peaceful, law-abiding citizen was good, and that the deceased was not the agressor in the trouble that he had with the appellant at Casteel's, but...