State v. Houston
| Decision Date | 14 March 1927 |
| Docket Number | 27038 |
| Citation | 292 S.W. 728 |
| Parties | STATE v. HOUSTON |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled April 9, 1927.
North T. Gentry, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for the State.
In the circuit court of Dunklin county, the defendant was convicted on August 24, 1924, of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of 25 years in accordance with the verdict of the jury, and appealed.
The information, which was filed on June 12, 1924, charges the defendant with murder in the first degree for shooting and killing Howard Harkey on June 2, 1924. There was a dancing party for negroes on the evening of June 2, 1924, at Guy Pearson's dance hall in the north part of the city of Kennett. Rachel Harkey, Howard Harkey's wife, testified that Jim Lytel, a negro, nicknamed 'Son,' asked her to dance with him; that she refused because he was drunk. The evidence for the state further shows that a quarrel ensued that Howard Harkey went out of the hall to his automobile came back with a gun in his hand, and fired a shot into the roof of the building. The lights, three oil lamps, went out instantaneously, and there was a general scramble to get out of the building by the door and windows. Otis Houston, the defendant, was one of the first to get out, and stood by a window a few feet from the door. Howard Harkey soon followed, and, while standing outside the door on the step, with one hand on the door jamb and his back to the defendant, the latter fired three shots from his revolver, one of which struck Harkey between the shoulder blades and penetrated his heart. Harkey cried out, He walked a few steps and expired. It was dark and rain was falling at the time, but witnesses testified they saw the defendant by the light of the flashes from his revolver.
Tom Mead, a witness for the state, was asked if the defendant had owned an automatic pistol within the last year and a half. Over the objection and exception of the defendant that it was too remote witness testified that he saw a pistol drop out of the defendant's pocket when defendant and a boy called 'Tangle Eyes' had a fight on the street; that he saw it in defendant's hands; it was a 25 automatic pistol; that defendant told witness a few days after the fight that he had sent it home to his people; that this was about a year and a half ago.
Gene Jeffords testified that one night in February, 1924, the defendant was talking with witness at the Slicer Hotel and saw Howard Harkey come across the street. The defendant ran into the hotel; he said he was afraid of Harkey and the first time he got a chance he was going to bump him off. The defendant had a pistol, a 25 automatic at the time; he took it out of his pocket and showed it to witness.
E. B. Shuck testified he heard defendant, in February, 1924, say he had an automatic pistol. He said if Howard Harkey ever bothered him again or molested him he would kill him; that he would get even with Howard the first time he got a chance for the beating he had given him -- would not be positive how long ago that beating was.
Z. W. Parr testified he saw defendant on the street one day; he had a black eye; he said Howard 'done it'; that Howard 'had a big pistol and I couldn't help myself; when he gets that big gun off him, I'll get even with him.' Witness testified he saw defendant drop a pistol on the street the day he and another boy had a fight.
The defendant testified: That while he was dancing at the hall Harkey came to him, called him a yellow s -- o -- b -- and struck him. That he ran behind a counter. That Son Lytel ran in between them, and Harkey said 'wait a minute,' went out at the door, and came back with a gun and said, 'All you s -- o -- b -- line up.' That he was frightened when Howard Harkey fired the shot in the dance hall. That the lights went out. That he jumped out of a window and got out of the hall as soon as possible and ran to the Slicer Hotel where he was employed; that he did not shoot Harkey; that while running away he heard shots. He was corroborated as to his statement that he was not present when Harkey was killed. The defense also offered evidence tending to prove that when Harkey fired the shot in the hall, Guy Pearson, the proprietor, started towards the door with a pistol in his hand, and when near the door fired a shot inside the hall. There was also evidence that the general reputation of Howard Harkey for being a quarrelsome and turbulent person was bad.
The state in rebuttal showed that two or three days after the homicide the prosecuting attorney went with officers to the home of Guy Pearson and found a revolver in the bottom of a trunk; that there was dust in the barrel and it had the appearance of not having been recently fired. Guy Pearson testified that he had no pistol at the hall; that he did not fire a shot there; that the pistol the officers found in the trunk belonged to his wife's mother. This is a sufficient outline of the evidence for the consideration of the questions raised by the motion for new trial.
The appellant has filed no brief. No question has been raised as to the information. It is in the usual and approved form and sufficiently charges murder in the first degree.
The first, second, and third assignments of error in the motion for new trial challenge the sufficiency of the evidence to support the verdict. The learned Attorney General concedes that a consideration of all the evidence creates a doubt as to defendant's guilt, and that the evidence as a whole preponderates in favor of the defendant. But he properly contends that there is substantial evidence in this long record that the defendant did shoot and kill Howard Harkey as charged in the information. There is substantial evidence that during a considerable period there had been ill will between these two negroes; that defendant had made threats that he would kill Harkey; and that defendant took a position near the door to the dance hall with his pistol in his hand and there in the darkness of the night awaited the appearance of his enemy and shot him in the back as he was standing on the step outside the door, inflicting a mortal wound, and then fled to the hotel where he was shortly thereafter arrested for the crime. The evidence of his guilt is direct, positive, and substantial and in our opinion would have justified a verdict of murder in the first degree. The weight and credibility of the evidence were questions for the consideration of the jury. It is only necessary for us in reviewing the testimony to determine that there was substantial evidence of the defendant's guilt to warrant the submission of the case to the jury. State v. Gaultney, 242 Mo. 388, 390, 146 S.W. 1153; State v. McCord, 237 Mo. 242, 246, 140 S.W. 885; State v. Jackson, 283 Mo. 18, 24, 222 S.W. 746.
The fourth assignment is that the court erred in admitting incompetent, irrelevant, and prejudicial evidence. The motion does not indicate the evidence claimed to have been erroneously admitted.
The evidence of Tom Mead, Gene Jeffords, and Z. W. Parr, set out in the statement, was admitted over the objection that it was too remote. This and other evidence of like tenor tended to show there had been enmity between the defendant and the deceased for a year or more; that the defendant had a grudge against Harkey; that he carried and exhibited a revolver and declared he intended to kill the deceased. Evidence simply tending to prove that the defendant at some former time or times carried a revolver concealed on his person would have been inadmissible as tending to prove another and distinct offense. But that objection was not made. This evidence in connection with the threats proved was relevant; it was not too remote, and the objection was properly overruled.
Error was also claimed in admitting the evidence that the officers, two or three days after the homicide, found a pistol in a trunk at Guy Pearson's home. It was shown there was dust in the barrel of this pistol and that it did not appear to have been recently discharged. The defendant had offered evidence tending to prove that Pearson, on the night of the homicide, during the scramble to get out of the hall, fired a shot from a pistol on the inside of the hall and near to the door of the hall, and that it was the second shot fired. The evidence offered by the state in this connection was competent to show that neither the second nor any other shot was fired by Pearson.
It is assigned that the court erred in giving instructions 1, 2, 3 4, and 5 for the state. These are the usual and...
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