State v. Gilbert
| Decision Date | 31 May 1916 |
| Docket Number | No. 19347.,19347. |
| Citation | 186 S.W. 1003 |
| Parties | STATE v. GILBERT. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Cedar County; C. H. Skinker, Judge.
Samuel Gilbert was convicted of murder in the first degree, and, from a judgment of conviction and an order denying a new trial, he appeals. Affirmed.
Foulke & Brown, for appellant. John T. Barker, Atty. Gen., and Shrader P. Howell, Asst. Atty. Gen., for the State.
Respondent was charged in an information filed in the circuit court of Cedar county with murder in the first degree in having shot and killed one John Shuey. Upon a trial defendant was convicted as charged and sentenced to the penitentiary for life. From this judgment he appeals.
In August, 1914, a number of men were threshing wheat on the farm of a neighbor of defendant in Cedar county. While they were thus engaged, defendant came upon the scene with a shotgun in his hand. When within a short distance of the stack of grain on which John Shuey was at work, the defendant raised the gun to his shoulder and fired, shooting Shuey in the right side and killing him. A witness who was working on a stack near Shuey heard him say as the defendant pointed the gun at him, "Now quit, Sam." These were the only words that passed between them. After the shooting, the defendant reloaded the gun and said:
Other remarks of like tenor were made at the time by the defendant, who immediately left the scene.
The deceased had made no demonstration of any kind toward the defendant, and, when his body was examined, only an old rusty pocketknife was found on his person. There was no evidence tending to show a former difference or difficulty between the parties. The defense was insanity.
The condition of the transcript is such that we might well limit our review to the record proper under section 5312, R. S. 1909. The record proper is here, not as a material part of the original transcript, but as supplementary thereto in compliance with an order of this court for a diminution of the record made at the behest of the Attorney General. The so-called bill of exceptions, either through the indifference to duty or the incompetence of the clerk, is incomplete in many particulars. However, in view of the fact that the defendant is under the shadow of a life sentence and is not represented by counsel, we feel constrained to review the matter as presented to determine whether or not prejudicial error has been committed.
Error is alleged in the overruling of defendant's application for a continuance. This application was not made a part of the bill of exceptions; if it had been, the witness upon whose absence the application was based is shown by the record to have been present and that he testified at the trial. Conceding that error was committed in the overruling of...
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