State v. Johnson

• Decision Date: 25 May 1928
• Docket Number: 28670
• Citation: 6 S.W.2d 898
• Parties: STATE v. JOHNSON et ux
• Court: Missouri Supreme Court

6 S.W.2d 898

STATE v. JOHNSON et ux

No. 28670

Supreme Court of Missouri, Second Division

May 25, 1928

J. M Massengill, of New Madrid, for appellants.

North T. Gentry, Atty. Gen., and H. O. Harrawood, Sp. Asst. Atty Gen., for the State.

OPINION

HIGBEE, C.

Appellants husband and wife, have appealed from a conviction of murder in the second degree in the New Madrid county circuit court. Johnson's punishment was assessed at 25 years in the penitentiary, Mrs. Johnson's at ten years, and they were sentenced accordingly.

Jenus, or Jene, Johnson, is the stepson of the deceased, James Fagan. The Fagans, Johnsons, and a third family lived in a onestory building in Morehouse, Mo. Each family occupied its own separate apartment. For some time prior to the killing there seems to have been considerable ill feeling between Fagan and Jenus Johnson, due to a disputed item of indebtedness which Fagan claimed Johnson owed him in connection with the purchase of a Ford truck. From the testimony we find that Fagan repeatedly had threatened to kill Johnson if the latter attempted to use the truck without settling the bill. Advances by Johnson looking to an adjustment of the matter evidently accomplished nothing.

On the day of the homicide, June 7, 1927, the truck was standing immediately back of the house in which the families lived. Johnson was preparing to drive it to a neighboring town to dispose of a load of junk. He had tightened the bearings of the motor so that the truck was hard to start. At one time during the day it appears that Fagan had driven Johnson away from the truck, and a little later had driven Mrs. Johnson away.

Mrs. Fagan, wife of the deceased and mother of the defendant, Jenus Johnson, testified that immediately before the killing she saw the two defendants leave their part of the house and go to the back yard where the truck was standing. Mrs. Johnson had her hands under her apron. In a few minutes Mrs. Fagan heard pistol shots, and ran to the scene. When she arrived there, her husband was toppling over, and the two defendants were backing away, Johnson with a revolver in his hand and Mrs. Johnson holding a butcher knife. Fagan fell and died immediately without making a statement.

The two defendants left the scene of the homicide, crossed the street, and went to a public garage in which an automobile owned by them was kept in storage. Shortly thereafter they were found sitting in their automobile. They were arrested and lodged in jail.

After being placed in jail, Johnson told a witness to get his revolver out of the automobile. This was done. The revolver was identified as the property of Johnson. Later the city marshall who made the arrest found a butcher knife under a seat cushion in the car. Whether or not it is the knife which was used in the affray is not shown.

The defendants were the only eye witnesses to the killing. Both testified. Their version of the affair is that, when they went into the back yard, Johnson seated himself in the truck while his wife stood by a rear wheel. Fagan came up, ordered them away, and slapped Mrs. Johnson, knocking her down. She thereupon called to her husband for help. Johnson got out of the truck and told Fagan not to strike his wife any more. At this juncture Fagan turned upon Johnson and told him he was going to kill him, starting to draw a revolver from his pocket, whereupon Mrs. Johnson seized a butcher knife, kept in the rear of the truck and used for cutting tire patches, and threw it at Fagan, cutting him in the back, and Johnson drew a revolver and shot Fagan in the chest. It was this wound which proved fatal. The wound in the back was superficial.

Immediately after leaving the scene of the killing, the two defendants were met by Arthur Johnson, a brother of Jenus Johnson. Arthur asked him whom he had shot, and Jenus replied that 'Jim run out in my way,' referring to the deceased. When Arthur reached the scene of the affray, Fagan was lying on the ground with his revolver lying by his hand. This was Fagan's revolver according to the witness.

There was an abundance of testimony to the effect that Fagan had threatened Johnson's life. One witness testified that thirty minutes before the killing Fagan displayed his revolver and said he was going to use it. The defendant Johnson testified to similar threats made directly to him by Fagan, and there was other testimony of threats which, so far as the record shows, were not communicated to the defendants. Many witnesses testified that the general reputation of both defendants as to being peaceable and law-abiding citizens was good.

Defendants were charged with first degree murder.

By its instructions the court told the jury they must find the defendants guilty of murder in one of the degrees or acquit them on the ground of self-defense, thus excluding from their consideration any lower degree of homicide. This is assigned as error.

No instructions were requested by the appellants and no exceptions were taken to the failure of the trial court to instruct on manslaughter. The point is first presented in the motion for new trial.

Appellants contend that, since the evidence for the defendants shows that Fagan slapped Mrs. Johnson...