State v. Harlan

• Decision Date: 10 April 1922
• Docket Number: No. 23303.,23303.
• Citation: 240 S.W. 197
• Parties: STATE v. HARLAN.
• Court: Missouri Supreme Court

240 S.W. 197

STATE v. HARLAN.

No. 23303.

Supreme Court of Missouri, Division No. 2.

April 10, 1922.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

Frank Harlan was convicted of murder in the second degree, and he appeals. Affirmed.

N. A. Franklin and J. C. McKinley, both of Unionville, and Higbee & Mills, of Lancaster, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen. (M. D. Campbell, of Kirksville, of counsel), for the State.

WHITE, C.

The defendant was charged with murder in the first degree in killing one Jasper Bell on the 29th day of August, 1919, in Putnam county. On change of venue, the trial was held in Adair county, where a jury found appellant guilty of murder in second degree and assessed his punishment at imprisonment in the penitentiary for a term of ten years. The court rendered judgment and sentence accordingly, and defendant appealed.

Jasper Bell was 42 years of age. It appears that he had been divorced from his wife, and that he and his two children were living with his father and mother a short distance northeast of the small town of Sidney in Putnam county. The defendant Harlan lived about one-eighth of a mile from Sidney on the road Bell traveled in going there. Bell had a farm adjoining that of his father, and in the forenoon of the 29th of August he was engaged there in digging for borers in his apple trees. About 2 o'clock in the afternoon of that day, according to the testimony of his mother, he called one George Young over the telephone. Young, it seems, lived on the opposite side of Sidney. He met Young between Sidney and Young's house, had some conversation with him, and Young parted from him a short distance be fore he reached Sidney. Bell at that time was on horseback. There were two stores in Sidney about 200 yards apart, on the road which ran northwest and southeast. Belt stopped at the northwest store, bought two dozen jar rubbers, had some talk with Homer Wellman who ran the store, and then started in the direction of the home of his father along the road which the witnesses described as following the winding of a ridge and ran past Harlan's house.

Bell left Wellman's store between 2 and 3 o'clock in the afternoon, and was not seen alive again by any witness for the state. In 10 or 20 minutes, report came to the store that he had been shot in front of Harlan's house.

The sheriff of Putnam county, Elisha Dixon, testified that he arrived at the place where Bell's body lay by the side of the road, about 5 o'clock in the afternoon. The defendant's home on the west side of the road was west and a little south from where the body lay. Later in the evening of that day the defendant surrendered to the sheriff. At that time he was with his son Cecil. Defendant stated that he supposed the sheriff was looking for him, said that he had shot Mr. Bell, and produced a knife and gun which he said were taken off of Bell. The sheriff said to Harlan that he feared he had made a mistake; that he should have left the weapons on Mr. Bell and let some one else take them off. To this the defendant replied that he was afraid Bell would shoot some of the rest of his folks. He said further that he had used a shotgun in shooting Bell. The knife and revolver which the defendant handed to the sheriff were produced in evidence. The revolver was loaded—magazine full.

Dr. E. A. Montgomery, the coroner of Putnam county, testified that he knew Jasper Bell and saw the body in the evening of the ' day on which he was shot. Bell had been shot by a shotgun; the wounds were on the left side of the neck and in the body on the left side in the region of the heart; witness was uncertain whether wounds were scattered over the face or not. Witness found a shotgun, a Winchester repeater No. 12, 40 or 45 feet from the body, leaning against a tree, in Harlan's yard. The gun was fully loaded and an exploded shell lay 10 or 12 feet north of the gun. Bell was dressed in pants, shoes, and his shirt sleeves; some money and fruit jar rubbers were found upon the body and 19 cartridges tied in a piece of cloth.

C. C. Houston, an undertaker and embalmer, testified that the shot which struck Bell penetrated the cavity of the body on the left side. The greater part of the load was on the left side of the neck and that part of the body near the region of the heart. The jugular vein was punctured and had. be sewed up so that it would hold the embalming fluid.

J. M. Bell, the father of the deceased, testified to the work of his son in the orchard that forenoon. He left his home about 2 o'clock, leaving Jasper there, and saw him no more until he saw his dead body late that evening. The knife, taken from the body of Bell, which was handed to the sheriff by Harlan, was described by J. M. Bell as a pruning knife which Jasper bought about three weeks before for the purpose of caring for his apple trees. He further testified that the pistol, produced for his inspection, which the defendant said he took from Jasper's body, he had never seen before the death of his son. His son had a revolver which he did not carry. It was a 32 self-action Colts. This pistol was found among the effects of Bell after his death by the appraisers of the estate and produced in evidence. It was the only pistol he had ever known his son to have since he was a little boy. The witness denied that he had said at the coroner's inquest that he would prove that Jasper had a right to carry a gun.

Mrs. J. M. Bell, mother of deceased, testified that at about half past 2 Jasper attempted to call up George Young and then left the house. She washed the clothing which Jasper wore at the time he was killed and explained their condition. The automatic pistol which defendant claims was taken from Jasper's body was shown to her, and she testified that she never saw it during the lifetime of Jasper. She testified further that the 32 found by the appraisers of her son's estate was one, or like one, her son kept. The cartridges taken by the coroner from Bell's body after he was killed were shown her, and she testified that the cloth with which they were wrapped was unlike any she ever had about her house. She always washed and mended her son's clothes.

George Young testified to seeing Jasper Bell between Sidney and his house; rode a half mile with him, engaged in conversation, and left him just before he reached the west store. Bell then was on horseback going towards home. About three-fourths of an hour afterward he heard of the shooting. He got in a car with Mr. Williams and went to the place. He found Bell's body lying on the west side of the road near the front of defendant's house. Bell's horse was standing a few feet from where the body lay in Harlan's yard. There was blood in the road. The body lay about 10 feet to the west of the road, and the condition of the ground showed that the body bad been dragged from the road to the place where it lay on the grass. Witness saw the shotgun by a tree in Harlan's yard, and saw the coroner pick up an empty shell. The witness described the wounds indicating that they were on the left side of the neck; he did not see any on the right side of the face.

Homer Wellman testified to Bell's purchase of fruit jar rubbers, of hearing of the shooting affair, and then going to the place with George Young and others. He described the pool of blood in the middle of the road, and described two tracks apparently made by the heels when the body was being dragged out of the road; the body apparently had been dragged 10 or 12 feet west to the side of the road near the defendant's house. Witness described the tree standing in front of the defendant's house.

Clarence Lewis, another witness, who went to the scene of the tragedy with Wellman and Young, saw where the body had been dragged to the side of the road. It looked as if the heels of the shoes had been dragged on the ground. He noticed the shotgun leaning against a maple tree. The maple tree was 30 or 36 inches in circumference. The witness saw the empty shell 5 or 6 feet south and east of the tree. This witness testified that a pump gun, like a Winchester, would throw an empty shell—an exploded shell— when pumped out, 5 to 8 feet. This evidence was objected to and error assigned to the ruling of the court in admitting it.

Pearly Wiles, one of the first to arrive at the place, testified to the position of the road and said that the road curved around to the northeast in front of Harlan's house. He noticed the exploded shell about six feet from the tree where the gun fay.

Alfred Gillum testified that the pistol, a 32, which had been produced in evidence, was found by him in Jasper Bell's home in a box where he kept his papers. The witness was one of the appraisers of Bell's estate.

Clark Burns testified that he had talked with the defendant about two weeks after the shooting, and the defendant said he had never had any difficulty or quarrel with Jasper Bell; Harlan appeared inclined to talk more about Bell's affairs, when some one interrupted. This was the state's case.

The defendant then introduced his evidence. Noah Payne testified that he was with the sheriff at the time Harlan was arrested, and Harlan said it was either kill or get killed. The defendant's son Cecil handed to the sheriff the gun which defendant said he took from Bell's body; the defendant had informed the witness that he wanted him to tell the sheriff that he (defendant) was ready to give himself up.

Bert Lewis testified for the defendant that J. M. Bell, the father of Jasper, had said that he would show, when the time comes, that Jasper had a right to carry a gun.

S. N. May testified for the defendant and said he heard Jasper Bell's father make that same statement.

C. R. Sears, a brother-in-law of the defendant, testified that about three weeks before the shooting he had a conversation with Jasper Bell, and at that time Bell said, "Harlan and Nora can't marry....