State v. Hall
| Decision Date | 13 May 1902 |
| Citation | 168 Mo. 475,68 S.W. 344 |
| Parties | STATE v. HALL. |
| Court | Missouri Supreme Court |
1. Defendant lived near a road which had been used by deceased and others for several years. Defendant and others of his family obstructed the road, and while deceased was holding the horse of C., who was about to remove the obstructions, defendant approached with a rifle, saying: When deceased called to him, "Hold on, Tom, I haven't done anything," defendant immediately fired, and deceased died from the shot a few hours later. Defendant claimed the shooting to be in self-defense, and himself and his mother testified that deceased said, "If you can shoot quicker than I can, you had better be at it," and made a motion to draw a revolver. This evidence was contradicted by the other witnesses, and after deceased was shot no weapon was found on him. Held, that the evidence warranted a finding that the killing was actuated by express malice.
2. Where there is no evidence of provocation, in a prosecution for homicide, to reduce the killing below murder in the second degree, it was not error for the court to fail to charge on manslaughter.
Appeal from circuit court, Iron county, Frank R. Dearing, Judge.
Thomas Hall was convicted of murder in the second degree, and he appeals. Affirmed.
J. J. Cope and J. W. Callahan, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.
At the regular October term, 1900, of the circuit court of Iron county an indictment was preferred against the defendant charging him with murder in the first degree of James W. Asher on the 24th day of June, 1900. Defendant was duly arraigned on October 24, 1900, and pleaded not guilty, and a copy of the indictment was furnished him on that day, and the cause set down for trial on December 10, 1900. Both parties announced ready for trial on the 10th of December, and a jury was duly selected, and the trial of the cause proceeded until the 15th of December, when the jury returned a verdict of guilty of murder in the second degree, and assessed defendant's punishment at 10 years in the penitentiary. The evidence presents the following case: Defendant lived on his mother's farm in Iron county, his house being only a short distance from that of his mother. The deceased, James W. Asher, and defendant and his family had not been on good terms for some time. A traveled road runs along near the dwellings of defendant and his mother. It is not shown whether the road was a public one or not, but it seems to have been traveled by the public for many years. A few days before the shooting defendant and his mother closed up the road by felling trees and brush across it so as to impede or prevent travel. The deceased, Asher, witness Clemens, his sons, Jake and Charley Asher, used the road in getting out from their homes. On Sunday morning, June 24, 1900, about 9 o'clock, Clemens, Jake Clemens, Charley and Jim Asher were at the house of witness Clemens. Jake Clemens got on his horse and left soon after. In a few moments he came back to the house, and called for an ax, saying the road was stopped up down at Hall's. They went down, and some of them commenced cutting the trees and brush out of the road, but deceased took no part in the cutting. Defendant's mother, Martha Hall, came up, and ordered them to leave the trees and brush alone. While they were discussing the matter with her, defendant came up with a Winchester rifle in his hands. He stepped up near the brush in plain view, at the same time telling his mother to get out of his way, saying: Asher, who stood holding Jake Clemens' horse, remarked: "Hold on, Tom, I haven't done anything." Hall then, without further words, raised his gun and fired, the ball taking effect in Asher's breast, from which he died in about four hours. Defendant asserts he shot in self-defense. He and his m...
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