State v. Hicks

• Court: Missouri Supreme Court
• Writing for the Court: Bohling
• Citation: State v. Hicks, 167 S.W.2d 69 (Mo. 1942)
• Decision Date: 12 November 1942
• Docket Number: No. 38074.,38074.
• Parties: STATE v. HICKS et al.

167 S.W.2d 69

STATE v. HICKS et al.

No. 38074.

Supreme Court of Missouri, Division No. 2.

November 12, 1942.

Rehearing Denied January 4, 1943.

Appeal from Circuit Court, Ozark County; Tom R. Moore, Judge.

Charley Hicks and another were convicted of shooting with malice aforethought, and they appeal.

Affirmed.

Green & Green, of West Plains, for appellants.

Roy McKittrick, Atty. Gen., and Covell R. Hewitt, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

This is an appeal by Charley Hicks and Walter Hicks from a judgment imposing a punishment of two years' imprisonment against each appellant for purposely and with malice aforethought shooting Hobart Barker. § 4408, R.S.1939, Mo.R.S.A. § 4408. They were charged jointly with Charley Homan and Jim Hicks. Charley Hicks was constable of the township in which the shooting occurred. Jim Hicks and Walter Hicks are his sons. Charley Homan was constable of an adjoining township, and lived six to ten miles from the scene. He did not engage in the shooting. Charley Homan secured a severance. Appellants were granted a change of venue from Douglas county to Ozark county.

The State's evidence warranted the following findings: Mrs. Merle Douglas and Hobart Barker, on July 23, 1939, were in Barker's Plymouth coupe when one of the tires went "flat" about a mile out of a place designated in the record as Gentryville in Douglas county, Missouri. This occurred just before dark, when it was "dusky dark." They stopped on the shoulder of the highway. Barker had recently purchased the car and when he attempted to use the jack it would not raise the automobile sufficiently high to permit putting on an inflated tire. Jim Hicks, not then known to Barker, came by, and Barker, who heard the automobile approaching, took a position by the side of the coupe and threw up his hand to "flag" Hicks. Hicks gave no indication of stopping and Barker started back in under the coupe to work the jack. Hicks, however, stopped about 600 feet down the road. Mrs. Douglas "hollered and told him we had a flat tire, that we needed a jack," but Hicks went on without coming back to the coupe. Mrs. Douglas and Barker remained at the coupe. Several, three or more, automobiles passed, some of which stopped. They later learned that one was occupied by Charley Hicks and Jim Hicks. Barker testified he heard it; that by the time he got out from under the coupe it had passed, and that it was traveling pretty fast. The operator of one car had no jack. The operator of another car was taking a sick child to a doctor. They proceeded on without giving Barker the necessary assistance. Then, about five minutes after one of the other cars had left, another car approached, meeting them, and stopped about 75 to 100 feet away, with its lights shining on the coupe. This was about 11:00 p. m., and Mrs. Douglas (behind the wheel) and Barker were sitting in the coupe. A voice called out: "Put on your lights." Mrs. Douglas reached over to put on the lights and Barker, thinking help was at hand, opened his door and started to get out. As he was in the act of getting out there was a shot or several shots from a shotgun or shotguns, and Barker received twenty-two shots in his head, face and left shoulder. He fell to the ground, into the ditch and crawled to the nearby woods. The occupants of the other car did not come to the coupe. Sometime thereafter, Mrs. Douglas, who testified she was "scared stiff," slipped away from the coupe and finally located Barker in the woods. They spoke. A pistol shot followed, passing through Mrs. Douglas' hair. Barker, Mrs. Douglas aiding him, went farther into the woods; and she left for Gentryville to secure help. She returned with a Mr. Livingston. They made themselves known to the Hicks' party, and told them who had been in the coupe and that Barker was injured. A tire was then put on the coupe, but Charley Hicks forbade Mrs. Douglas to take the coupe and go to Barker's relatives for help.

Mrs. Douglas and Barker testified that those in the Hicks' party did not inform them they were the law, or tell them to surrender and put up their hands, although they were ordered to put on the lights; that they had no gun and did not shoot. There was testimony that as many as nine shots were fired.

Charley Hicks and Walter Hicks took the stand. Their testimony was to the following effect: Jim Hicks came home on the night in question about 11:00 o'clock and informed his father that as he was passing a parked automobile a woman stopped him; that he stopped a short distance past the parked car; that then a man came out with a gun and commanded him to put up his hands; that he started his car and came home; and that he thought they were "hijackers." Charley Hicks procured his "six shooter" and Jim Hicks a sixteen gauge shotgun. They started for Homan's to secure his assistance. On the way they passed the parked coupe. As they approached, a man was "honkered down" at the right rear wheel and when they got within about fifteen feet, the man jumped up, had a gun, and "hollered * * * put your hands up a couple of times." They drove past and on to Homan's home. Homan secured a shotgun and the three men proceeded to Walter Hicks. Walter secured a Remington twelve gauge shotgun, and Charley Hicks deputized those with him to assist in arresting the occupants of the automobile. They then drove to Barker's parked coupe, stopped their car about seventy-five feet in front of the coupe, with its lights shining on the coupe, which also had its lights on. They alighted. The woman was standing near the left front door of the coupe. Charley Hicks called out and told them to put up their hands. Walter Hicks called out three times: "This is the law. Put your hands up." The man got out on the other side of the coupe and fell down. They did not put up their hands. Charley Hicks shot his revolver in the direction of the brush to his right. The man shot at them two or three times. Then Walter Hicks shot twice and Jim Hicks shot once. Charley Hicks also fired. Walter Hicks said: "Boys, he has went down. Don't shoot no more." Homan did not shoot. He previously had advised them not to be hasty, that someone might get hurt. Charley Hicks later heard a noise in the woods and fired in that direction. The shooting occurred about 12 m. The Hicks party did not proceed to the coupe but remained at their automobile until Mrs. Douglas returned with Mr. Livingston about two or three hours later.

Appellants' brief, for the first time in the printed "argument," attacks the State's main instruction; questioning the submissibility of the issue of an assault with malice aforethought, commingled with remarks concerning a clause in the instruction. A number of reasons may exist for disallowing the points. Consult State v. Davit, 343 Mo. 1151, 1153[1], 125 S.W.2d 47, 49[1]; Scott v. Missouri Pac. R. Co., 333 Mo. 374, 389[14], 62 S.W.2d 834, 840 [18]. The issue with respect to the sufficiency of the evidence must have been an afterthought. The record before us discloses no demurrer at the close of all the evidence. Appellants' argument is based on their testimony. It was for the jury, not this court, to pass on the weight and credibility of the parol testimony hereinabove set out. Nothing out of the way occurred when other automobiles stopped at the Barker car. If the jury believed Barker and Mrs. Douglas, appellants, after ordering the occupants of the coupe to put on the lights, recklessly, wantonly and willfully, in utter disregard for the safety of Barker, proceeded to shoot Barker with shotguns. State v. Coleman, 186 Mo. 151, 84 S.W. 978, 69 L.R.A. 381, involved the conviction of a marshal of murder in the second degree in connection with an attempted arrest, which offense has been defined as the wrongful killing of a human being with malice aforethought, but without deliberation. State v. Robertson, Banc, 178 Mo. 496, 505, 77 S.W. 528, 530. Consult State v. Lamb, Mo.Sup., 278 S.W. 1009, 1012[3]; State v. Stewart, Banc, 278 Mo. 177, 189, 212 S.W. 853, 856[4]; Wiley v. State, 19 Ariz. 346, 170 P. 869, L.R.A. 1918D, 373; Annotation, 99 A.L.R. 835. After directing a conviction upon findings of specified facts, the instruction continued: "* * * unless you find them not guilty on the grounds as defined in another instruction * * *." Appellants complain of the phrase "in another instruction" because it failed to designate the instruction referred to. Only two instructions directed a verdict — one, given at appellants' request, an acquittal; and the questioned instruction, a conviction. The instruction explicitly gave appellants the advantage of their instruction. In addition, it instructed the jury to acquit if they failed to find the facts as set forth in the State's instruction. A jury of reasonable men would not be confused. They would understand they were to acquit if they found the facts as set forth in the other instruction.

Section 4070, R.S.1939, Mo.R.S.A. § 4070, requires the court to instruct on all questions of law arising in a criminal prosecution. Appellants assert they were entitled to an instruction on felonious assault without malice, § 4410, R.S.1939, Mo. R.S.A. § 4410, arguing that if they shot Barker "negligently and without proper caution in a lawful attempt to make an arrest," it was for the jury to determine "whether or not such shooting was committed with or without malice." Appellants stress State v. Fine, ...