State v. Harrod

• Decision Date: 27 January 1891
• Parties: STATE v. HARROD.
• Court: Missouri Supreme Court

15 S.W. 373

102 Mo. 590

STATE v. HARROD.

Supreme Court of Missouri, Division No. 2.

January 27, 1891.

HOMICIDE — SELF-DEFENSE — EVIDENCE — THREATS.

1. The day before a homicide the deceased assaulted the accused, who had him arrested. The next day the accused and his two sons went in a wagon to their farm, a part of which was leased to the deceased. They salted their cattle, and made a fence around some stacks. As they were leaving, the deceased came up, and renewed the difficulty. One of the sons stepped between the deceased and the accused, and the former knocked or pushed him down, and was approaching the accused with an iron chain in his hand. When he had got within six feet of the accused the other son took an axe from the wagon, and struck and killed the deceased. The accused was 65 years old, and suffered with heart disease. The deceased was 40 years old, 6 feet tall, and weighed 180 pounds. Held, that it was error to refuse a charge on the law of self-defense, and to give one based on the theory that the accused and his sons put themselves in the way of the accused for the purpose of bringing on a difficulty.

2. It is error to exclude evidence that on several occasions, and within a few days of the homicide, the deceased had made bitter threats against the accused.

3. In a prosecution for homicide, threats by the accused against the deceased are admissible.

Appeal from circuit court, Nodaway county; C. A. ANTHONY, Judge.

At the March term, 1890, of the circuit court of Gentry county the defendant, Selus Harrod, and his two sons, John J. Harrod and Selus Preston Harrod, were indicted for murder in the first degree of Barnett Harrod Fallis on the 26th day of December, 1889. At the same term, on their joint application, a change of venue was granted them to the circuit court of Nodaway county. At the June term of the Nodaway court a severance was granted Selus Harrod, and he was separately tried at said term. He was convicted of murder in the second degree, and sentenced to 10 years' imprisonment in the penitentiary. From this sentence he appeals to this court. The evidence develops this state of facts:

The defendant had leased to the deceased, Barnett Fallis, certain lands for that season, and Fallis was occupying a tenant-house, with a small inclosure around it, on the Harrod farm, detached, however, from the lands he was cultivating. This farm was about two and one-half miles north-west of the town of McFall, in Gentry county. The house in which Fallis was living was situated about 175 feet north of a public road running east and west along the south side of the Harrod farm. Selus Preston Harrod, the son of defendant, lived about half a mile east of the place where Fallis, the deceased, lived. The father, Selus Harrod, lived in the town of McFall, and his son John Harrod made his home with him. The tenant-house in which Fallis was living was surrounded by timber to the north and east. The stable and cow-pens to the Fallis lot were about 200 yards north of the house, and there were two ponds between the house and stable. Just south of the house there was a gate opening into the public road. From this gate there were two farm roads or paths, — one leading around east and north of the Fallis residence; and the other to the west, through the timber, to a point near the pond south-west of the stable, and to a fence, dividing a corn-field from the woods pasture and meadow on the east and north. The tragedy resulting in the death of Fallis occurred on the farm of defendant, on the road running to the east and north of the Fallis residence, about 100 yards north of the house, 100 yards south-east of the barn, and 75 yards from the north pond. This private road runs between the two ponds, and just between the two it branches, — one fork to the north, to the stable; the other fork going to a gate in the fence west of the north pond. West of the corn-field was a meadow with a number of hay-stacks in it. This meadow came down to the road on the south of the farm. It appears that in this wood, pasture and meadow around the Fallis residence the defendant had some 40 cattle and 6 or 7 horses. He had the exclusive possession of all the farm except the house and stable.

The evidence shows that in July, 1889, the deceased, Fallis, and the defendant and defendant's sons had an altercation, which resulted in nothing but hot words. On the 25th December, 1889, the defendant took a sack of salt, and went to his farm on which Fallis was living to salt his cattle, and to invite his son Preston and family to take dinner with him. After salting the cattle, he started for his home in the village of McFall. He had reached the gate just south of Fallis' house leading into the public road, when Fallis came to him, and took hold of him, and demanded a settlement. Fallis was 40 years old, and weighed about 180 pounds. The defendant was 65 years old, and a smaller man. Emmett Fallis, a son of deceased, a boy 11 years old, testified as to this occurrence at the gate. He says: "The day before the homicide I saw Selus Harrod at our front gate. My father and I were going east on the road. Mr. Harrod, the defendant, had nothing in his hand but some salt. When he opened the gate we were pretty close to him. The first thing that was said, Pa asked him if he was willing to settle. Don't remember well what occurred. Pa asked him again, and said, `If you will just pay me $50 I will give possession in 10 days.' Harrod hallooed for Mr. Claycomb, who lived on the place just south. Harrod told Pa to let him alone, and Pa told him he would if he would settle. Defendant `hollowed' as loud as he could for Pa to let him alone. Pa told him to hush; that he needn't halloo for Claycomb; that he wasn't going to hurt him if he would settle. When he started home Pa hunched him with his knee a little." Defendant's version of this matter is: "He (Fallis) took hold of me. `Now,' he says, `I'll tell you what it is, damn you; you and Press have got to lay me down a flat hundred dollars, or I'll burn you out smack smooth.' He jammed me back against the fence and jerked me forward. I was worried. I hollered for Claycomb. I said: `Barnett, you know very well you have the advantage of me, a big, stout young man.' Then he jerked me, and told me to hush, and I hollowed for Claycomb 3 or 4 times. He said, `G—d damn you, if you don't hush, I will kill you.' I got loose, and started to my wagon. He followed, and kicked me." For this assault, defendant caused Fallis to be arrested.

On the next day the defendant and his son John Harrod took a team and went from McFall north-west to the residence of Selus Preston Harrod. John and the defendant both testify their purpose was to fence their hay from the cattle. When they reached Preston's house they stopped. The sons took off the wagon-bed. The old man (the defendant) went on to the farm where Fallis lived, to see about his cattle. He went in the gate in front of Fallis' house, took the path to the left of the house, and went up to the ponds, near the stable. There he scattered out some salt and laid some rails on the fence between the corn-field and woods pasture. While alone there Fallis passed, and went up to the stable, and got an iron chain. After the defendant left his sons they loaded some rails on the wagon and followed on, came into the gate, and took the farm road to the east and north of the Fallis house. Emmett Fallis, the son, testifies that he went to the stable with the deceased; that after getting the chain they started back to their house; that Selus Harrod was salting his cattle as they went to the stable, and was near the pond as they returned. He says his father, the deceased, called to defendant, and asked if he was willing to settle; that defendant replied he was not going to settle; that he didn't owe him anything; that they (he and his father) started on to the house. When they got to the top of the hill they met John Harrod, driving the wagon, and Preston Harrod walking behind; that John Harrod said to his father, the deceased, "I see you and the old man are in a racket again." His Pa said, "I just asked the old man to settle." While John and deceased were talking, the old man, the defendant, came up. This witness says the defendant said nothing and did nothing when he came up; that the only thing he remembered about the commencement of the trouble was, his father began by telling Selus Harrod, the defendant, he "wasn't a bit afraid of the pistol he had buckled around him." Selus told his Pa that he had cursed him, and his father denied it. Says John Harrod did not offer to fight. Got off his wagon when the deceased started to his father, the defendant. That Press had not spoken a word. When John got between his father and deceased, deceased put his hand on him, and told him to "keep back." When his father stepped towards defendant, Press Harrod jerked the axe off the wagon, and struck his father, and killed him. Old man Harrod did not say a word to John or Press. "My mother was coming up just as Press struck Pa." Defendant was standing at front wheel of wagon, and deceased at hind wheel, during this last talk. Mrs. Fallis says she reached there in time to hear defendant accuse her husband of cursing him the day before, saw him take a step towards defendant, drop the chain, saw John step between them, heard her husband tell John to "keep back." He pushed John, and staggered him. Press then struck deceased with the axe. Press said nothing.

The defendant testified. After stating that Fallis went to the stable, he says: "As Fallis returned, he accosted me, saying, `You damned old rascal you, you want to have me arrested again, don't you?' He called me a `damn thief.'" He says deceased then started on home, met the boys, and turned and followed the wagon back. "I went across to get on the wagon when I left the fence. The first thing he said to me was, `You have got that ____ damned old...