State v. Flannery

• Citation: 173 S.W. 1053
• Decision Date: 23 February 1915
• Docket Number: No. 18630.,18630.
• Parties: STATE v. FLANNERY.
• Court: United States State Supreme Court of Missouri

173 S.W. 1053

STATE v. FLANNERY.

No. 18630.

Supreme Court of Missouri, Division No. 2.

February 23, 1915.

Appeal from Circuit Court, Howell County; W. M. Evans, Judge.

L. S. Flannery was convicted of manslaughter in the fourth degree, and appeals. Affirmed.

J. L. Bess and Green & Green, all of West Plains, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

WALKER, J.

An information filed by the prosecuting attorney of Howell county charged the defendant with murder in the second degree in having struck with his fist and killed Olin McConnell. Upon a trial the defendant was convicted of manslaughter in the fourth degree and sentenced to two years' imprisonment in the penitentiary. He appealed from this judgment and applied for and was granted a stay of execution upon giving a bail bond, which was approved by the trial court.

The defendant and the deceased, both young men, boarded with a family named Summers, in West Plains. There were a number of other boarders, and on the day of the assault by the defendant, which resulted in the death of the deceased, the two had some hot words at the dinner table, growing out of a casual remark made by Mr. Summers, the landlord, that he had read that morning of a threatened strike of a large number of railway engineers.

Defendant and the deceased bandied words with each other in a sarcastic vein as to what each thought would be the result of the strike, until remonstrated with by Mr. Summers and his daughter. Defendant finished his meal and went out and sat down on the front porch in company with Dr. Ballenger, another boarder, saying as he came out that "this was the second time that fellow (meaning deceased) had butted into him, and that he did not have to stand it if he was a preacher; that he might backslide a little, but it would not hurt him to do that." Ten or fifteen minutes later the deceased, who, upon leaving the table, had gone out at the back door, came around the house, softly humming a tune, and, as he reached the end of the porch, said pleasantly to the doctor, "Are you going up town to get your mail?" Ballenger replied, "No, it is a little early yet; I don't believe I will go." The defendant, who had not been addressed, said, "I will go with you if you will repeat what you said at the table." Deceased said, "What did I say?" Defendant replied, "You insulted me;" to which the deceased replied, "Well, if I did, I am sorry, and I will apologize." The defendant in the meantime had risen and walked down in front of the deceased, who was standing on the walk, saying, as he reached him: "This makes twice you have done that. If you will just step out into the street with me, I will whip you until your friends won't know you." To this the deceased replied: "No, I won't go. I don't want any trouble. If I have hurt your feelings, I am sorry, and I am willing to apologize." The deceased then started down the walk towards the front gate; the defendant keeping in front of him. As they went the doctor heard the deceased say, "I have too much respect for this home to have trouble, and I don't want to have any trouble." Defendant replied, "Come back into the alley, and there won't be anybody know anything about it." Deceased then stepped aside off of the sidewalk, and said, "No, I won't go with you anywhere." This was the last coherent remark the deceased made. Defendant then caught the deceased by the lapel or collar of his coat, and, swinging him around facing defendant, said, "You dirty low-down cur, I am going to whip you here." At this defendant struck the deceased with his fist on the temple or side of the head, felling him to the ground. His head struck the edge of the cement or concrete walk, and Dr. Ballenger, who until then had remained sitting on the porch, rushed down to the defendant, fearing that he would again strike the deceased, and said, "For God's sake, don't do this." The defendant did not repeat the assault, but asked the doctor if he thought the deceased was hurt. The doctor said he could not tell. They lifted the body off of the walk and laid it on the grass. The deceased during this time was writhing in paroxysms of pain and muttering names said to have been those of his brother and his affianced, and, catching convulsively at his head, exclaimed at intervals, "Oh, mother, Oh, my head," or words of kindred import. He never regained consciousness but died that night between 7 and 8 o'clock. His death was caused by a hemorrhage at the base of the brain, caused either directly by the blow inflicted by defendant or indirectly by the deceased striking his head when falling on the cement walk in consequence of defendant's blow.

The deceased was a small man, about five feet and four or five inches in height, weighing 130 or 135 pounds. The defendant was six feet in height and testified that he weighed from 160 to 175 pounds. After striking the deceased, the defendant went before a justice of the peace and attempted to enter a plea of guilty to a common assault, but his plea was not permitted to be made.

The foregoing presents the material facts testified to by witnesses for the state. Defendant testified in his own behalf. His testimony was utterly at a variance with that of other witnesses, except that of two women, who testified for the defense. One of these was a Mrs. Lillian Simpson, who was shown to have been sitting with her back to where the defendant and deceased were standing when the fatal blow was struck and who stated immediately thereafter that she did not know anything of the affair and could not testify in regard thereto; nevertheless she went on the stand and testified affirmatively and in detail that the deceased was the aggressor. The other was a young woman, who was at some distance from where the two men were standing when the blow was struck, whose testimony tended to sustain defendant's statements. The jury gave no credence, and properly so under all of the facts, to the testimony of these three witnesses, and time and space need not be occupied in its discussion; there being ample evidence to sustain the verdict.

The killing occurred June 4, 1914. The constable of the township in which West Plains is located went before a justice of the peace and filed a complaint charging the defendant with having killed "Olin Connell" by striking him on the head with his fist. Defendant's contention with regard to the sufficiency of this complaint renders the justice's docket entries in regard thereto material. Omitting caption, signatures, jurat, certificate as to genuineness, and the circuit clerk's filing mark, all of which are not questioned, these entries are as follows:

"On the 4th day of June, A. D. 1914, before Geo. Halstead, justice of the peace within and for the county aforesaid, comes Ben Hollings-had and files complaint against defendant, and on his oath says on or about the 4th day of June, A. D. 1914, in Howell county, the defendant did then and there willfully and unlawfully and feloniously kill Olin Connell by striking him (the said Connell) on the head with his fist. Same day I issued warrant for the apprehension of defendant and delivered the same to Ben Hollingshad, constable. June 4, 1914, warrant returned executed by bringing before me at my office, in Howell township, the body of defendant, as commanded. June 4, 1914, comes now the defendant, who, having seen and heard read the affidavit filed, says that he could not be ready for a hearing until June 15th, hearing set for June 15th and bond fixed at $2,000, which was furnished with (name of principal and sureties), and approved by the court. June 9, 1914, comes defendant by attorneys, and informs the court that he waives the preliminary hearing heretofore set for the 15th of June, and the court fixes his bond for $2,000 for his appearance at the next term of circuit court, with (name of principal and sureties) as securities. Which bond was approved by the court and the same certified to the clerk of the circuit court."

On the 22d day of June, 1914, the prosecuting attorney of Howell county filed an information charging the defendant with murder in the second degree in having struck and killed Olin McConnell. Motions to quash were filed assailing the information on grounds dehors the charge itself, in that no complaint had been filed precedent to the filing of the information charging a felony, and that the name of the deceased was not properly set forth, and that, by reason of such defects, defendant had not been accorded the right of a preliminary examination, as required by section 5056, R. S. 1909, as amended by Laws of Missouri 1913, p. 225. The overruling of the motions to quash is contended by the defendant to have been reversible error.

The Complaint. — Precedent to the filing of an information by a circuit or prosecuting attorney charging any person with a felony, the person charged shall be accorded the right of a preliminary examination. Section 5056, as amended, supra. To authorize an accused to demand this right, complaint must have been made against him in writing under oath, before a justice of the peace of the county, setting forth that a felony has been committed, and naming the accused, whereupon the justice of the peace is required to issue a warrant for the apprehension of the person charged. Upon being apprehended, the accused may demand or waive a preliminary examination. This court, in State v. Jeffries, 210 Mo. loc. cit. 320, 109 S. W. 614, 14 Ann. Cas. 524, and in State v. Sassaman, 214 Mo. 695, 114 S. W. 590, has fully defined the object and purpose of a preliminary examination to the effect that the right to same was accorded to obviate the possibility of groundless or vindictive prosecutions which the Legislature evidently deemed might otherwise occur where informations were filed and the deliberations of a grand jury dispensed with.

The authority thus granted was also intended to...