State v. Fleetwood
| Decision Date | 06 December 1916 |
| Docket Number | No. 19711.,19711. |
| Citation | 190 S.W. 1 |
| Parties | STATE v. FLEETWOOD. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Ozark County; John T. Moore, Judge.
Andrew Fleetwood was convicted of manslaughter in the fourth degree, and appeals. Affirmed.
Defendant was prosecuted in Ozark county for murder in the second degree, based upon the charge that he had shot and killed one Jim Degase. Having been found guilty of manslaughter in the fourth degree, he was sentenced to two years' imprisonment in the penitentiary. From that finding and the sentence bottomed thereon he has (after the usual motions) appealed.
The homicide on which the prosecution herein is bottomed occurred on the 29th of December, 1914. The facts thereof run briefly thus: Deceased and defendant at a time prior to the homicide had been brothers-in-law, in that defendant had married a sister of deceased, who had died prior to the time of the killing. There was living with deceased and a brother (called in the record Pone Degase) another sister, one Maud Stanley, widowed, seemingly by divorce. This sister, on the afternoon preceding the night on which the killing occurred, had gone to the village of Noble, and had failed to return when night came on. Deceased and his brother, Pone, becoming, it seems, apprehensive about her for some reason, started on horseback, accompanied by one Charles Ross and a certain Hiram Lewis, to look for her. At a point on the public road they met the defendant, Maud Stanley, and defendant's brother Frank, together with one Manda Lewis and a small girl, one Eva, the daughter of defendant. Maud Stanley and defendant were riding on the same horse; defendant riding behind Maud. On meeting defendant and Maud, deceased called twice to her to stop and get off the horse. She did not immediately obey. Thereupon deceased dismounted and came toward her, upon which, and on deceased's either pulling or helping her from the horse, or reaching toward her as if to do so, she dismounted. At the same time defendant slipped from the horse.
So far there is no substantial conflict between the testimony for the state and that for defendant. Touching the subsequent events the stories told by the respective sides are conflicting. According to the testimony on the part of the state defendant, immediately upon dismounting, ran his hand into his bosom and drew or started to draw a pistol therefrom, whereupon Pone Degase, seeing, as he testified, the pistol, struck defendant with his fist and either knocked him down or staggered him till he partially fell. Defendant rose and started toward deceased, who grappled with him and endeavored to take the pistol from him. While defendant and deceased were struggling for the possession of the pistol, defendant fired twice; one of the shots striking deceased in the stomach and producing the wound from which he died a few days later.
The testimony on the part of the defendant touching the occurrences at the instant before the shooting tends to show that when defendant dismounted from the horse he backed away several steps, but made no effort to draw any weapon at that time; that Pone Degase advanced on him and struck him in the face, partially knocking him down; that while he was recovering from this assault both deceased and Pone Degase again advanced on him and assaulted him; and that thereupon, and in order to protect himself from the combined assault of the Degases, he fired twice, without, he swears, intending to kill either of them, and without specially aiming at either of them.
Threats are shown to have been made by deceased against defendant and by defendant against deceased. These however, are so shadowy and far-fetched as not to produce an abiding conviction of their verity, since there is proof on both sides tending to show that deceased and defendant had been and were friendly and in the habit of visiting each other.
Such further facts as may be necessary to indicate the nature of the alleged errors which are called to our attention will be set forth in connection with the discussion thereof.
Stewart & Luna, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen. (James V. Billings, of Jefferson City, of counsel), for the State.
FARIS, P. J. (after stating the facts as above).
I. Defendant complains in his motion for a new trial (he has not...
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