State v. Harper

• Decision Date: 13 December 1971
• Docket Number: No. 55299,55299
• Citation: 473 S.W.2d 419
• Parties: STATE of Missouri, Respondent, v. Phillip HARPER, Appellant.
• Court: Missouri Supreme Court

Page 419

473 S.W.2d 419

STATE of Missouri, Respondent, v. Phillip HARPER, Appellant.

No. 55299.

Supreme Court of Missouri, En Banc.

Dec. 13, 1971.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Cable & Seabaugh, Kennett, for appellant.

HOLMAN, Judge.

Defendant, Phillip Harper, charged with murder in the first degree in the killing of James Arnold, Jr., was found guilty of manslaughter and his punishment fixed by the jury at five years' imprisonment. See §§ 559.010, 559.070, and 559.140. ¹ He has appealed. We affirm.

This appeal was originally heard in Division Two where an opinion was adopted but the case was transferred to Court en Banc because of the dissent of one of the judges. After the case was argued en Banc the Division opinion failed of adoption and the case was assigned to the undersigned. Portions of the Division opinion are here adopted without the use of quotation marks.

As of necessity he must, Harper admits that he shot and killed James Arnold, Jr. (hereinafter referred to as 'Junior') while Junior sat at or arose from a stool in the tavern in Cardwell known as the Bootheel Cafe. Harper, age 29, fired five shots from a .25 caliber Browning Automatic pistol into Junior at close range, dropped his gun to the floor and walked out. Junior and Harper, both large men, had had several prior encounters. About six months previously they had engaged in a knife fight but friends separated them and they had a 'fair fight' with fists. Harper 'got the better of him,' knocked him down once or twice and, he said, 'I think that was why he was after me.' In any event, on Saturday, November 25, 1967, Junior and Harper had played pool at 'Winks Club' in Paragould, Arkansas, where they were both well known, and Junior had lost ten or more dollars to Harper. There Junior got 'real mad and told me he was going to kill me.' The balance of the day and into the night Junior and Harper again met as they drank from tavern to tavern in Arkansas and Missouri, Harper claiming that all the while Junior was following him and repeatedly, as Harper's adherents reported to him, threatened to kill him. About closing time, one o'clock in the morning of November 26, Harper was in the Bootheel Cafe. He saw Junior come in one door so he 'went out the other door because I didn't want no trouble.' Nevertheless, he testified, 'I took my pistol out of the car and put it in my right rear pocket' and returned to the cafe through the front door 'to talk Junior out of it.' Junior was sitting on a bar stool just inside the door and Harper says that as he walked in Junior 'collared' him and again threatened to kill him. As Harper again started to leave Junior arose from the stool, said 'You are not going to do nothing here or no place, you son-of-a-bitch,' and 'run his hand in his pocket' and 'made a grab at me.' Harper said, 'I thought he was going to kill me,' so he grabbed his gun and started shooting. One bullet entered Junior's jaw and 'four in his chest.' Needless to say, in these circumstances, despite Junior's known reputation as a gun and knife toter, and a very quarrelsome and dangerous man, the jury could and did reasonably find the appellant guilty of manslaughter.

Harper, as indicated, does not question the sufficiency and cogency of the evidence; he claims that he is entitled to a new trial by reason of newly discovered evidence. The newly discovered evidence came from Billy Davis, from Paragould and St. Louis. Sometime after the trial, quite by chance, he (Billy Davis) encountered Harper in Cardwell, told him he was 'sorry about the way the trial went,' and Harper lamented the fact 'that there was no evidence that Junior had a gun.' Whereupon Billy Davis said, 'Well, I don't know whether he had the gun or not when the shooting took place but he had one when I was there.' And so Billy proposed to testify that on Saturday, November 26, he was on his way home from St. Louis (about 11:30 p.m.) and 'I had to use the rest room and I stopped at the Bootheel and went into the rest room. I was using the toilet and Junior walked in and he takes a small caliber automatic pistol from his pocket and takes the clip out and pushes it back in and I looked at him and spoke to him and he always replied and always spoke to me because I knowed him for approximately ten years.' He says that Junior 'stuck it back in his pocket' and walked out; 'he didn't exactly look drunk, but he had a silly look in his face as if he was angry or mad about something.'

In shooting and killing Junior Arnold, Harper of course claimed self-defense. He also claims that there was no evidence available at his trial to show that Junior had a pistol, that the proffered testimony of Billy Davis meets all the requirements of newly discovered evidence, and that such entitles him to a new trial.

The requirements for securing a new trial because of newly discovered evidence are '(1) that the evidence has come to the knowledge of the defendant since the trial, and (2) that it was not owing to his want of due diligence that he did not discover it sooner, and (3) that the evidence is so material that it would probably produce a different result on a new trial, and (4) that it is not cumulative only or merely impeaching the credit of the witness.' State v. Harris, Mo.Sup., 413 S.W.2d 244. It should also be noted that the trial court is vested with a great deal of discretion in deciding whether a new trial should be granted because of newly discovered evidence and that courts do not favor the granting of new trials upon that ground. State v. Green, Mo.Sup., 305 S.W.2d 863.

There was evidence to the effect that after Junior had been dragged out onto the sidewalk a pistol was seen lying by his right side. Also, the operator of a night club in the area testified that at about 11:30 p.m. on the night of the shooting, Junior tried to borrow a gun from him, saying that he was going to kill Phillip Harper.

Defendant testified that he knew of his own knowledge that Junior Arnold always carried a gun, knife, and 'knucks.' When it is considered that there was evidence that Junior had made several threats to kill defendant 'that night,' and that Junior had a reputation not only for being quarrelsome and dangerous but also for carrying a gun, there was apparently a reasonable basis for defendant to think that 'he was going to kill me' when he started shooting at Junior. It should be remembered that the instruction submitting self-defense contained a provision that 'it is not necessary to this defense that the danger should be actual or real, or that the danger should have been impending and immediately about to fall. All that is necessary is that defendant had reasonable cause to believe, and did believe, these facts.' It was therefore not so important to the defense to show that Junior actually had a gun as it was that defendant, with reasonable cause, believed that he did. In view of the substantial evidence to support that belief (which was defendant's sole theory of defense) we do not conclude that the Davis testimony tending to indicate that Junior may have had a gun would produce a different verdict in the event of another trial.

Considering the cumulative nature of the proffered testimony, and the fact that it was not of the quality likely to produce a different verdict, we rule that the trial court did not abuse its discretion in refusing to grant a new trial on the ground here considered. State v. Hatfield, Mo.Sup., 465 S.W.2d 468; State v. Watson, Mo.Sup., 400 S.W.2d 129.

The principal point briefed by defendant is that the court erred in overruling his motion for discharge which was based upon his failure to receive a speedy trial. While he mentions the general constitutional provision contained in the Sixth Amendment to the U.S. Constitution, and Art. I, § 18(a), Missouri Constitution, V.A.M.S., his specific reliance is upon §§ 545.900 and 545.920. The first mentioned section reads as follows:

'If any person indicted for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term.'

Section 545.920 provides that if the county has more than two terms of court a year, and defendant is on bail, he shall not be entitled to be discharged until after the end of the fourth term.

The record discloses that the information was filed in the circuit court of Dunklin County on December 29, 1967. On February 7, 1968, a change of venue was granted to Stoddard County. As provided in § 478.295, that county has terms of court beginning in April, August, and December of each year. The record is silent as to any action in this case during the April, August, and December terms of 1968. The first record entry in Stoddard County appears on June 26, 1969 (April term), as follows: 'Defendant appears in person and by counsel, Charles M. Cable, and State by Franklin P. Holder, Prosecuting Attorney. Defendant waives formal arraignment and enters a plea of not guilty. Cause is set for trial on November 7, 1969.' The 'Motion for Discharge' was filed and overruled on November 1, 1969. No evidence was offered on the motion.

There can be no question but that defendant (at liberty on bail) was not tried until after the end of the fourth term after the case was lodged in Stoddard County. Obviously, our task is to decide whether that fact, on this record would require his discharge under the provisions of the foregoing statutes. Our task is made difficult by reason of a definite conflict in the decisions of this court on the question presented. The cases of State v. Wear, 145 Mo. 162, 46 S.W. 1099, an...