State v. Huett

• Decision Date: 21 April 1937
• Docket Number: 35134
• Parties: The State v. Joseph L. Huett, Appellant
• Court: Missouri Supreme Court

104 S.W.2d 252

340 Mo. 934

The State v. Joseph L. Huett, Appellant

No. 35134

Supreme Court of Missouri

April 21, 1937

Appeal from Reynolds Circuit Court; Hon. Taylor Smith Judge.

Affirmed.

Wm P. Elmer, John R. Johnson, Verne Lacy, W. Jack Moore and Lee Kinder for appellant.

(1) Judge Dearing was not divested of jurisdiction and it was not conferred upon Judge Smith by the order made. State ex rel. v. Higbee, 45 S.W.2d 825; Sec. 18, Art. II, Mo Const.; Secs. 3648, 3649, 3651, R. S. 1929; Ex parte Fish, 184 S.W. 481; Ladd v. Forsee, 163 Mo. 508; Bank v. Graham, 147 Mo. 250; State v. Gillham, 174 Mo. 672; State v. Newsum, 129 Mo. 159; State v. Allen, 183 S.W. 331; State ex rel. v. Fidelity Deposit Co., 117 S.W. 620; Autenrieth v. Schaff, 196 S.W. 1130; State v. Hosmer, 85 Mo. 555; State v. Shea, 95 Mo. 93; Texas & Pac. Co. v. Ready, 198 S.W. 1054. The order is required by the statute to be made by the court, not by the judge in vacation. (2) Instructions 5 and 6 on self-defense are erroneous and do not follow approved forms in Missouri. Those asked by defendant were correct. State v. Price, 84 S.W. 920, 196 Mo. 140; State v. Hudspeth, 60 S.W. 136, 139 Mo. 178; State v. Sebastian, 114 S.W. 527; State v. Aurentz, 286 S.W. 71, 315 Mo. 342; State v. Jones, 273 S.W. 733; State v. McNeese, 284 S.W. 787; State v. McQuitty, 140 S.W. 869, 287 Mo. 232; Instructions to Juries by Ferris & Rosskopp, secs. 629-630; 4 Words & Phrases, p. 3403; Webster's New International Dictionary; State v. Traylor, 98 S.W.2d 628. (3) The instruction on manslaughter was erroneously given. There was no evidence upon which to base it. State v. Creighton, 52 S.W.2d 556; State v. Punshon, 124 Mo. 446, 27 S.W. 1111. (4) The judge had no authority to request the Attorney General to take charge of the case and the Attorney General had no authority to act. He had no authority under our Constitution or laws to file an information. His only authority to act in a case must come from a request by the Governor. Secs. 11273, 11275, 11276, R. S. 1929; State v. DeShon, 334 Mo. 862, 68 S.W.2d 805. (a) It is the duty of the prosecuting attorney to file informations and prosecute all criminal cases on behalf of the State. Sec. 11316, R. S. 1929.

Roy McKittrick, Attorney General, J. E. Taylor and Olliver W. Nolen, Assistant Attorneys General, for respondent.

(1) Judge Dearing's order disqualifying himself and calling in Judge Taylor Smith was sufficient. Secs. 3648, 3651, R. S. 1929; Sec. 29, Art. VI, Mo. Const.; State v. Hunter, 171 Mo. 440; State v. Kowertz, 297 S.W. 360; State v. Newsum, 129 Mo. 159; State v. Gillham, 174 Mo. 674; State v. Slate, 214 S.W. 88; In re Howell and Ewing, 273 Mo. 121. (2) Instructions 5 and 6 given by the court correctly define the law of self-defense. Sec. 3985, R. S. 1929; State v. Aurentz, 286 S.W. 73; State v. Bushong, 246 S.W. 920; State v. Sebastain, 215 Mo. 86. (3) The court did not err in giving an instruction on manslaughter. (a) There was evidence upon which to base the instruction on manslaughter. State v. Stallings, 33 S.W.2d 917; State v. Creighton, 52 S.W.2d 561. (b) A defendant convicted of manslaughter cannot complain that the evidence showed him guilty of murder. Secs. 3653, 4451, R. S. 1929; State v. Davis, 12 S.W.2d 428; State v. Parker, 12 S.W.2d 428; State v. Morrow, 188 S.W. 76; State v. Hearney, 177 S.W. 307. (3) The Assistant Attorney General had authority to file the information in this case and to prosecute the cause. Sec. 11273, R. S. 1929; State v. Cummins, 288 S.W. 793; State v. Moxley, 102 Mo. 384; State v. Wilson, 200 Mo. 29; State v. Duncan, 116 Mo. 307; State v. Jones, 268 S.W. 85; State v. Bobbitt, 270 S.W. 381; State ex rel. v. Woodson, 161 Mo. 454; Mich. Cen. Railroad Co. v. Northern Ind. Railroad Co., 3 Ind. 245. (4) Whether or not a juror on his voir dire examination has falsely stated that he has not formed or expressed an opinion as to defendant's guilt or innocence is a matter of fact for the trial court to determine, and the appellate court will not interfere with its finding unless it has clearly abused its discretion. State v. Rasco, 239 Mo. 588; State v. Baker, 24 S.W.2d 1039; State v. McVay, 66 S.W.2d 857.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Under an information, charging murder, filed in the Circuit Court of Reynolds County, the appellant was convicted of manslaughter, sentenced to five years' imprisonment in the penitentiary in accordance with the verdict of the jury, and has appealed. He was represented below and is here by able counsel who have filed here an exhaustive brief in which the verdict and judgment are challenged on certain grounds therein set out and briefed.

We shall notice the grounds and contentions briefed and state the facts sufficiently for determination thereof, and, following our recent decision in State v. Mason, 98 S.W.2d 574, shall not discuss the other alleged errors complained of in the motion for new trial nor attempt to state in detail facts bearing only upon such abandoned contentions.

On the evening of August 10, 1935, appellant, with a pistol, shot and killed one Ruel Hunter. We may refer to appellant as the defendant and to Hunter as the deceased. The killing is admitted, defendant's defense being self-defense. The fatal encounter occurred in the street near, or possibly upon, the sidewalk, (it is here immaterial which) at or near the intersection of two streets near a beer tavern in Centerville, Reynolds County, and near the courthouse. The State's evidence tended to show the following:

Defendant had been in and out of the tavern several times that day. Towards evening he went with one Pulley to a toilet back of the courthouse and while so doing exhibited a pistol and said he was going to kill some son-of-a-bitch before night. There is evidence in the record from which it could be found that this threat referred to Hunter and that defendant and Hunter had previously had some difficulty or misunderstanding and defendant had said, referring thereto, that Hunter had jumped onto him once and that if he did it again he, defendant, would kill him. There was some evidence, not clear, from which it might be inferred that defendant had an altercation with one Fox (not a witness) in the beer tavern in the afternoon of August 10th, following which Fox had communicated with Hunter; also that defendant and Hunter had meet in the tavern that afternoon, though it does not appear that there was a quarrel between them or threats made by either at that time, except some evidence tending to show that when Hunter left the tavern he called back to defendant or generally to those inside, including defendant, to wait ten minutes, he would be back. He was then unarmed. The evidence indicates that soon thereafter defendant left the tavern, going to the office of one Dr. Pyrtle. Soon after that defendant and deceased met at the place where the homicide occurred. Defendant, with Dr. Pyrtle, was coming from Dr. Pyrtle's office going toward the tavern. He had, concealed upon his person, a pistol, fully loaded. Hunter was armed with a single barreled shotgun, which he was carrying under his right arm with the muzzle pointed downward. The evidence is conflicting as to details of what occurred when defendant and deceased thus met. There is evidence that deceased asked defendant, "Where is your gun?" to which defendant replied that he had no gun, and further stated to deceased in the course of the (admittedly short) conversation that he wanted no trouble with deceased, to which latter statement deceased replied, "All right, if you don't want any trouble I don't want any either;" that thereupon defendant walked past deceased, who was making no threatening demonstration with his shotgun, and that after having passed deceased two or three steps he turned, drew his pistol and shot deceased. The evidence discloses that the epithet "liar" or "God damn liar" was used by one or the other of the two men during the short altercation above referred to. By some witnesses the use of that epithet was attributed to defendant, by others to deceased.

It appears from the State's evidence that defendant fired two shots in quick succession, after which, almost instantly, deceased's shotgun was discharged, the charge striking the ground to the side of and rather close to defendant's feet, but not hitting him. It does not appear whether the shotgun was discharged purposely or unintentionally, though it would seem that deceased must have had his hand about the lock and probably his finger on the trigger when the shooting began. From defendant's testimony it could be inferred that the shotgun was discharged intentionally. Following that shot there were two or three more shots from defendant's pistol, but it is difficult to tell the precise time, with reference to other occurrences about to be related, at which they were fired.

Deceased received two wounds, from the effects of one or both of which he died the next morning. We gather from the evidence that either might have proved mortal. The State's theory is and its evidence tends to show, that they were inflicted by the first two shots that, according to the State's evidence, were fired before the shotgun was discharged. While the wounds proved to be mortal they did not immediately incapacitate deceased. Immediately after the discharge of the shotgun he struck defendant over the head with it, knocking him down, sprang upon him and was beating him with his fists until pulled off by bystanders. There were more than two shots fired from defendant's pistol. Whether all of them, or only two, were fired before defendant was struck and knocked down as above stated, is difficult to tell from the evidence, nor do we think it...