State v. Fletcher

• Decision Date: 06 December 1916
• Docket Number: No. 19707.,19707.
• Citation: 190 S.W. 317
• Parties: STATE v. FLETCHER.
• Court: Missouri Supreme Court

190 S.W. 317

STATE v. FLETCHER.

No. 19707.

Supreme Court of Missouri, Division No. 2.

December 6, 1916.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Dutch Fletcher was convicted of murder, and he appeals. Judgment affirmed.

In July, 1915, an information was filed by the prosecuting attorney of New Madrid county, charging defendant with murder in the first degree in having struck with a club and killed one Jack Walker. On a trial defendant was convicted of murder in the second degree, and sentenced to 25 years' imprisonment in the penitentiary. From this judgment he appeals.

On July 14, 1915, a barbecue was held at Higerson Landing in New Madrid county. The festivities continued during the day and until the succeeding morning. There was dancing and considerable drinking. Defendant and the deceased were in attendance. In the early morning of the second day the deceased had a difficulty with one Craig Nelson. After they were separated the defendant, who had not participated in the affray, said that the assault of the deceased upon Nelson was a "d___d cowardly act." The deceased, after the difficulty with Nelson, walked across the dancing platform and, placing one foot on a bench near the edge of the platform, leaned his head on his hand and stood looking out over the river. The defendant walked rapidly into the circle of five or six persons standing around deceased, and, approaching the latter from the rear, struck him on the head with a club 3 feet in length and 2½ inches in diameter, and felled him to the floor. Not a word was exchanged between the parties before the blow was struck. Defendant struck the deceased one more blow while he was lying on the floor. Defendant then ran back into the crowd near at hand, and as some one exclaimed, "Who hit Jack Walker?" defendant said, "I'm the man; I'm the guy that hit him." This he repeated three or four times. Deceased at the time of this occurrence had no weapons on his person. Many of the men at this barbecue were in a drunken condition at the time of this affray, and a number of other difficulties had occurred during the day; but, as they have no connection with the affray which resulted in the killing, it is unnecessary to burden this statement with a recital of them as they appear in the transcript. The deceased was rendered insensible by the blow, and never regained consciousness, but died at his home the succeeding day. The wound inflicted and which caused his death was a fracture of the skull a little to the left of the median line. In August, 1914, the defendant having abruptly left a task he had engaged to perform for the deceased, some sharp words ensued between them. The details of this controversy are not material, except as showing the probable cause of certain threats made prior to the killing by the defendant against the deceased of which there was testimony.

There were witnesses who testified that they heard deceased make threats against the defendant a short time before the latter struck him. Others stated that they had seen the deceased have a pair of brass knucks the day of the difficulty, and that the deceased was a violent man of turbulent disposition. The defendant's account of the affray is as follows: Immediately after the fight between Craig Nelson and the deceased the latter turned to the defendant and said, "You s___ of a b___, I am in this, and I'll get you;" that deceased had knucks under his hand at the time he made this threat; that defendant said nothing to him, and when the deceased came towards him he retreated and picked up a stick; that deceased put his hand in his pocket, and defendant thought he was going to hit him with the knucks or shoot him, and that is why he knocked him down; that he did not hit deceased after he fell. Witnesses in rebuttal testified that deceased had no knucks or other weapons of any kind, and was inoffensively standing looking out over the river when he was assaulted by the defendant.

R. L. Ward, of Caruthersville, and Thos. Gallivan, of New Madrid, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

I. Rulings on Testimony. It is contended that the trial court erred in its rulings on the testimony. Defendant's first assignment in this regard is that a witness was permitted to state how far, in his opinion, he could have heard the blow the defendant struck in assaulting the deceased. When the inquiry was made which elicited this statement the fact had been established that the defendant had struck the deceased, and that the latter's death was due to the blow. As a general rule, a witness can only state facts and circumstances concerning a matter under investigation, and not his inferences or opinions, which are nothing more than conjectures and their admission error. While error is presumptively prejudicial (State v. Taylor, 118 Mo. loc. cit. 161, 24 S. W. 449), an analysis of the facts in a given case will enable it to be determined whether the presumption is to be confirmed or eliminated. In the instant case the principal fact, or that which constituted the gravamen of the offense, via., that the defendant struck the fatal blow, had been established and was no longer a subject of controversy. Under this state of facts the defense was limited to testimony tending to palliate or excuse the offense. What effect, therefore, did the witness' statement have on the case? It neither intimated nor expressed a conclusion as to the principal fact or the effect of defendant's act, nor did it have a tendency to lessen the force of his defense; it had reference to an immaterial matter, viz. the volume of the sound produced by defendant's blow; it was irrelevant, it is true, but free from prejudicial effect, and the presumption that arose from its admission is eliminated. The inquiry made of the physician who examined the deceased after he was struck was in regard to a fact which the former must necessarily have been in possession of after his examination of the deceased, viz. on which side of the head was the deceased struck? Not only the physician's testimony but that of other witnesses had established the fact that the defendant's blow produced a wound about the size of a dollar on defendant's head, and that the table of his skull was fractured. The inquiry simply sought to more definitely locate the wound, and was not error.

If error was committed in admitting testimony of a witness as to defendant's conduct and imprecations hurled at a nephew of the deceased a short time after he struck the latter, it was cured by the court ordering it to be stricken from the record. This gave the jury to understand they were not to consider it. The brief of counsel for defendant does not fairly state the facts as to the court's action in regard to this alleged error.

The court properly excluded the testimony sought to be elicited by the defendant from the state's witnesses as to the difficulty which the deceased had been engaged in with Craig Nelson before deceased was struck by defendant. State v. Hanson, 231 Mo. 14, 132 S. W. 245. The alleged purpose of this testimony, said counsel for defense, was to show that the deceased was mad. Of what avail would this have been to defendant if admitted? The attitude of the deceased when felled by the defendant was, not only noncombative, but positively passive. If mad, it was a most delightful form of frenzy, because many witnesses say he was "looking out over the river." Thus occupied, if in anger, it was not directed toward the defendant, because the latter approached the deceased from the rear, according to the state's witnesses, and inflicted the blow without his victim knowing of his presence. The trial court, therefore, ruled rightly in excluding this testimony.

Defendant complains of the admission in evidence of an exclamation made by one of the bystanders immediately following the striking of the blow by defendant and as deceased fell, to the effect that, "There's a dead man." The exclamation was contemporaneous with the principal act. The circumstances under which it was made indicate that it was voluntary, spontaneous, and not due to any deliberate design. While there is some conflict in the authorities in other jurisdictions as to whether the declarations of a bystander are admissible as a part of the res gestæ, the better reasoned opinions hold that if the declarations are made under such circumstances as to render them otherwise admissible, they are not to be excluded because made by one who was not an actual participant in the transaction, but a mere looker-on. See cases under section 162, 10 R. C. L. In Missouri the exclamation of a bystander under the facts here in evidence has, in conformity with the rule above stated, been held admissible. State v. Elkins, 101 Mo. loc. cit. 351, 14 S. W. 116. The trial court did not err, therefore, in admitting testimony as to the exclamation.

A witness, testifying for the state, said that he had heard the defendant say, while at the barbecue the day of the homicide, "I am going to get him some day." No name was mentioned. The offer of this testimony was subsequent to the introduction of evidence on the part of the state, showing that the defendant had expressed ill will towards the deceased, on account of the latter having discharged defendant from his service during the preceding summer. The witness' testimony as to the defendant's statement was objected to by the defense: First, because it was too remote; and, second, because no name was mentioned. The remoteness of the statement or threat will not affect its competency as evidence. State v. Hyder, 258 Mo. 225, 167 S. W. 524; State v. Wilson, 250 Mo. 323, 157 S. W. 313. While testimony of this character is not admissible as a part of the res gestæ, the fact that the deceased during the same day became the victim of defendant's ill will renders...