State v. Hutchison

• Citation: 186 S.W. 1000
• Decision Date: 31 May 1916
• Docket Number: No. 19355.,19355.
• Parties: STATE v. HUTCHISON.
• Court: United States State Supreme Court of Missouri

186 S.W. 1000

STATE v. HUTCHISON.

No. 19355.

Supreme Court of Missouri, Division No. 2.

May 31, 1916.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Walter R. Hutchison was convicted of second degree murder, and from the judgment of conviction and an order denying new trial, he appeals. Affirmed.

This is a prosecution by information for first degree murder. The trial resulted in a verdict of guilty of second degree murder, and the assessment of punishment at imprisonment in the penitentiary for a term of ten years.

According to the state's evidence the defendant was, at the time of the difficulty, an unmarried man, and resided on a farm near the home of the deceased's father-in-law. Deceased was married, but living apart from his wife, she making her home with her parents and doing certain work for the defendant. For about two months prior to the homicide the deceased had been engaged as a farm laborer on a farm close to that of the defendant. The country surrounding the residences of the respective parties was swampy, and at certain seasons the only means by which their nearest town could be reached was by boats; and it appears that upon one or two occasions the wife of the deceased accompanied the defendant alone on one of his boats to this town, some 15 miles distant.

Immediately prior to the difficulty the deceased and his wife had been negotiating with a view to resuming their marital relations, and defendant had advised the wife that, in his opinion, such would be "a bad move." On November 21st the deceased had visited his wife and children at the home of her father, and in the evening was returning to his place of employment, and while passing the field of the defendant he encountered him, and there the shooting occurred.

The state's evidence does not clearly disclose just what took place prior to the shooting, but it is apparent that both parties were heavily armed. The defendant admitted the killing, but attempted to justify his act upon the ground of self-defense. Soon after the shooting the deceased appeared at a clubhouse near by and there received medical attention. One physician testified that the deceased had been shot twice, one discharge entering the body from the front, and one from the back; while another physician stated that, in his opinion, both shots entered the body from the rear. Death occurred about five days after the difficulty.

On the part of the defendant one or more witnesses testified that before the death of the deceased he stated that the defendant "was too quick for him and beat him to it." The defendant's evidence also tended to show that the defendant was a peaceable, quiet, orderly and law-abiding citizen, and that the deceased had on numerous former occasions made threats to take his life. The defendant himself testified that while he was feeding his hogs the deceased approached him and, when within about 15 or 20 feet, took his gun from his shoulder and told him to throw up his hands; that he (defendant) at that time had a gun with him, and, when this demand was made, he wheeled around and pulled the trigger of his gun without taking aim; that, after the first shot, the deceased wheeled, but still held to his gun, and that he then shot a second time.

J. L. Fort, of Dexter, for appellant. John T. Barker, Atty. Gen., and Shrader P. Howell, Asst. Atty. Gen., for the State.

REVELLE, J. (after stating the facts as above).

I. Complaint No. 1 is that the record does not show that the jury which tried and convicted the defendant was sworn to try the cause and a true verdict render. The record recites:

"Now comes the state by prosecuting attorney and the defendant herein in person as well as by his respective counsel, and having made the respective challenges herein, they announce ready for trial and this cause is submitted to a jury of twelve good and lawful men of the body of the county, duly summoned and qualified on voir dire examination and selected to sit in the trial hereof namely: (omitting names of twelve jurors) who are duly sworn to try the issues joined herein and the trial hereof proceeds."

This record entry is clearly distinguishable from that in the case of State v. Duff, 253 Mo. 415, 161 S. W. 683, and is sufficient. State v. Duncan, 237 Mo. loc. cit. 202, 140 S. W. 882; State v. Mitchell, 199 Mo. 105, 97 S. W. 561, 8 Ann. Cas. 749.

II. The alleged error in the instruction on first degree murder need not be noticed, since there was no conviction on that charge. A defendant will not...