State v. Jamerson

• Decision Date: 11 June 1923
• Docket Number: No. 24172.,24172.
• Citation: 252 S.W. 682
• Parties: STATE v. JAMERSON.
• Court: Missouri Supreme Court

252 S.W. 682

STATE v. JAMERSON.

No. 24172.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from Circuit Court, New Madrid County; J. G. Slate, Special Judge.

Sherrill Jamerson was convicted of murder in the first degree, and he appeals. Reversed and remanded for new trial.

Mayes & Gossom, of Caruthersville, C. S. Hale and J. Val Baker, both of Morehouse, and Gallivan & Finch, of New Madrid, for appellant.

Jesse W. Barrett, Atty. Gen., Harry O. Willson, Sp. Asst. Atty. Gen. (Ward & Reeves, of Caruthersville, of counsel), for the State.

Statement.

BAILEY, C.

A verified information was filed by the prosecuting attorney of Pemiscot county, Mo., in the circuit court of said county on November 14, 1921, in which defendant was charged with murder in the first degree, in that, on September 14, 1921, he feloniously killed L. H. Brannon in said county. Appellant applied for a continuance, which was refused, and he thereupon filed a motion to quash the information, which was withdrawn, and a plea in abatement was filed by him. Said plea was overruled, and on defendant's application the venue was changed, on account of alleged prejudice of the inhabitants of Pemiscot county against him. The cause was sent to the circuit court of New Madrid county, where a change of venue was taken by appellant against Judge McCarty, who called in Judge Slate to try the case on January 14, 1922. On said last-named date the cause came on for trial, and appellant again filed a plea in abatement, which was overruled. The state announced ready for trial, appellant waived formal arraignment, and entered a plea of not guilty. The jury failed to agree in the trial of said cause, and the latter was continued to February 27, 1922. On the lastnamed date appellant filed an application for a change of venue, on account of alleged prejudice of Judge Slate, who presided at the former trial. This application was overruled, the former plea in abatement refiled, and the latter overruled. The state announced ready for trial, but appellant refused to announce, or give any reason for his refusal. On the last trial of this case the jury returned a verdict as follows:

"March 3rd, 1922. We, the jury, find the defendant guilty of murder in the first degree as charged in the information and assess his punishment at imprisonment in the penitentiary for the term of his natural life.

                           "L. N. Higginbotham, Foreman."
                

The evidence on behalf of the state tends to prove that appellant was a log hauler, and lived with his family at Pascola, Pemiscot county, Mo. The deceased, L. H. Brannon, was a practicing physician at Hayti, in said county, and, was appellant's family physician. About 9 a. m. September 14, 1921, the deceased went into the barber shop of James Graves, on Fourth street, in Hayti aforesaid, where one Foster was working on the first chair in the shop, and one Marrs was seated in the first patron's chair on the opposite "side of the room from the row of barber chairs. A negro shine boy was also in the shop. Deceased took off his collar, tie, and hat and got into the first barber chair, after being handed a paper by Marrs. Deceased was laid back in the chair by Foster, the barber, and had his hands crossed on his breast, with the paper in one hand. The barber put a towel across the breast of deceased, who was lying in the chair fiat on his back, with his face almost straight up. About that time appellant came into the shop, spoke to Marrs for a short time, when Jim Graves, who was sitting in the fourth chair, exclaimed, "Look out; don't do that!" Appellant had drawn his pistol from his right pocket, and thereafter fired two shots into the left side of deceased, who rolled out of the barber's chair, and started running toward the back part of the shop. The deceased stumbled over one of the chairs, and as he ran appellant fired three shots at him with a loaded pistol. Deceased was taken to his office in Hayti, where he was examined by Dr. J. W. Johnson, who found him suffering from gunshot wounds, two in the left side and one in the back. One of the bullets had passed through the pleural cavity and both lungs, thereby producing an internal hemorrhage, which caused deceased's death on September 15, 1921, in a hospital at Memphis, Tenn., to which he had been taken for treatment.

The state's evidence fairly shows that deceased, when shot, was lying flat on his back In the barber's chair, with his head on the headrest of the chair, his face straight up, and made no move of any kind, as far as those in the barber shop discovered, with his hands or otherwise, nor did he make any voluntary move to arise from the chair while the shooting was going on. Aside from the exclamation made by Jim Graves, above mentioned, there was nothing said which indicated that a shooting was about to take place.

Appellant left the barber shop, went north several blocks to the railroad track, with his pistol in his right hand, and was overtaken by S. P. Oates, constable of Hayti township, to whom he surrendered and gave up his pistol. Oates testified, that defendant, when arrested, said:

"I knew that was you after me when you started from town. I had been watching you all morning, and knew how you were dressed."

Oates took appellant to Caruthersville, with one Pullam, and on the trip appellant said he had intended to shoot deceased on the evening before. Jim Graves, who testified at the preliminary hearing, died before the stenographer had an opportunity to transcribe her notes of the testimony, and have him sign the same, but his testimony was, over the objection of defendant, read to the jury, and this is one of the errors complained of at the trial. Ed Britton accompanied deceased to the hospital in Memphis, Tenn., and was with him practically all the time until he died. Deceased was rational while at the hospital, and stated, according to Britton's testimony, that he knew he (deceased) was going to die. Over the objection of defendant, which is complained of as error, Britton was permitted to testify as to alleged dying declarations, made in his presence, at said hospital by deceased, as follows:

"That I did not know Jamerson was in the shop until he had shot me. I did not know Jamerson was in town the day he shot me; was not thinking of such a thing was blackmailed, and I want you to tell my friends, and I want them to believe in me."

Over the objection of defendant the state was permitted to prove by Sid P. Cates, the constable of Hayti township, in said county, that deceased had been commissioned as a special police of Hayti, and had been sworn in by him (Oates). He testified that on the day of the shooting deceased had a pistol; that he (Oates) furnished deceased a scabbard for said pistol, and that on the morning of the shooting he helped deceased fasten the pistol on his left shoulder, under his shirt; that he had this pistol on when shot, and there were holes made in the scabbard by the shots of defendant.

The above testimony in regard to deceased's authority to carry a pistol was duly objected to, and the admission of same is assigned as error.

According to the testimony of Ed Britton, given in rebuttal, the defendant, while in deceased's office the day before the shooting said to him: "If you do not pay me $500 I am going to kill you. You have ruined my home. My wife and my daughter have told me about it." Deceased denied having made any such statement. Britton said appellant then stated to deceased: "I am in your office, Doc., but I will get you some time when you are not in your office."

Over the objection of defendant the state was permitted to prove by the unsigned statement of Jim Graves, transcribed by the stenographer from her notes taken at the preliminary trial, to the effect that, on the night before the shooting, appellant said he was in trouble, and it had to be settled; that he had been talking to deceased, and told him. it had to be settled; that if deceased would give him $500 it would be settled, but if he did not he (defendant) would kill him.

The testimony on behalf of appellant, tended to prove the following facts: That he was a married man, 42 years of age, and a log hauler in Pemiscot county, Mo.; that deceased was his family physician, and had been intimate with defendant's wife; that the latter and defendant's daughter, who witnessed some of the alleged intimacy, informed defendant of deceased's conduct, and told him that deceased had threatened to kill him; that deceased called defendant to his office the day before the shooting, and with a pistol in his hand threatened defendant's life; that appellant spent the night before the day of shooting at the home of a friend in Hayti, where he secured a pistol, which was loaded, and hunted for more shells, but could not find any. On the morning of the shooting appellant went into the barber shop of Jim Graves for a few minutes, and went out again; that he returned to the barber shop, without knowing that deceased was there, and, with his pipe in his mouth, was talking to Mr. Marrs, who was seated in the first patron's chair; that he did not know deceased was in the barber's chair; that he knocked the ashes out of his pipe against his foot, and, as be did so, deceased raised up his head, looked at appellant, and the latter heard some one shout, "Look out, Doc.!" that deceased raised up in the barber's chair, and started his right hand toward his bosom; that appellant jerked his gun out of his pocket and started to shooting as fast as he could pull the trigger; that he knew deceased had a gun, and he shot because he thought deceased was going to shoot him; that he intended to kill deceased when he fired at him.

Appellant put his reputation in issue, and there was conflicting evidence thereon.

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, judgment rendered, and the cause appealed by defendant to...