State v. Jones

Decision Date03 December 1923
Docket NumberNo. 24926.,24926.
Citation256 S.W. 787
PartiesSTATE v. JONES
CourtMissouri Supreme Court

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

John W. Jones was convicted of murder in the second degree, and he appeals. Affirmed.

B. A. McKay, of Caruthersville, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

HIGBEE, C.

The defendant was convicted of murder in the second degree for killing his son-in-law, George Mathenia, and was sentenced to the penitentiary for a term of 10 years, from which he has appealed.

The homicide occurred at the residence of James Shaffer, a farmer and neighbor of the defendant, on the evening of September 21, 1921. The deceased and his wife had separated., Mrs. Mathenia had gone to live with her father, and deceased was living with James Leake. After the separation, Mrs. Mathenia gave birth to a child in August, 1921. Leake and Mathenia were in Caruthersville on the evening of September 21, and employed Phil Coppage to take them home in an automobile. Shaffer's residence was on their route, and on arriving there they found that a picnic was in progress. Mathenia went into Shaffer's house, carrying a pasteboard box. He found his wife and her mother there, sitting on a bed; the mother holding his baby. He did not at the time see the defendant, who was sitting behind the stove.

J. W. McAllister, a witness for the state, testified:

That he was at Shaffer's on the night of the homicide; that he saw Mathenia come in the house with a little paper box in his hand; that there was some conversation with Mrs. Jones that witness did not hear; that Mathenia then walked to the stove, laid the box on it, and, addressing the defendant, said, "Uncle John, I have got a cap and blanket;" that Mathenia had not any more than said that until Mr. Zones sprang from his chair and shot him twice. When Jones grabbed his gun, he said, "George, damn you, I have told you enough what to do." Mathenia ran out the front door. Jones shot at him again. The last witness saw of Mathenia he was running. Witness went out. Jones said to witness, "There lays Jim Leake." (The defendant had also shot and killed Leake after leaving the house, as will appear later on.)

"Mr. McKay (attorney for defendant): I object to that, being wholly immaterial; don't prove any issue in this lawsuit.

"By the Court: Sustain the objection.

"Q. What did you do then? A. Well, after I stayed there a little bit, a examined Mr. Leake.

"Mr. McKay: object, and move that his answer be stricken out, and the jury be instructed to disregard it, for the reason it doesn't tend to prove anything in this law suit.

"By the Court: I will Overrule that objection, but you can't go any farther.

"Mr. McKay: Exception."

Witness then stated he went down where Mathenia was lying on a bridge, a distance of 45 or 50 yards.

Mrs. Carrie McAllister, a witness for the state, testified:

"Q. What did he [Mathenia] do when he came in the house? A. Well, he came in the door, and walked right to the stove, and sat the box up between the metal piece and the pipe, a little box he had in his hand.

"Q. What did he do? Where did he go then? A. Then he turns and walks over to Mrs. Jones, and says to Mrs. Jones; he speaks to her, I won't say he said, "Good evening," or what he said; then he places his hands on his knees this way (indicating)—said: `Mrs. Jones, let me have the boy;' and she said, `I will take care of the boy myself,' just that crabby; and he said, `Well, Mrs. Jones, I have a coat, cap, and some blankets for the boy; you care for me giving them to him?' and she said, `You will have to see the rest of them;' and he said, 'Who all will I have to see?' and she says, `You will have to see the old man over there' (witness standing up).

"Q. Just sit down; what did he do then, when she said he would have to see the old man —who was she talking about? A. Talking about Mr. Jones, I suppose.

"Q. Where was Mr. Jones at that time? A. Sitting over behind the stove; the heating stove was between them.

"Q. Then what did Mr. Mathenia do, when she told him he would have to see the old man? A. He turned right around, and walked over to Mr. Jones, and placed his right shoulder on the stove and his left hand, just loose this way (indicating); and he says, `Uncle John, I have a coat, cap, and some blankets for the boy; you care for me giving them to him?' and Mr. Jones started, raising up out of his chair— Mr. Jones had on a blue jumper. Mr. Jones started raising out of his chair, and he put his right hand in his pocket, just that way (indicating)—in his inside Pocket and he started— He says, `George;' he says, `God damn you, I have told you enough;' and so Mr. Mathenia said, `Also, Uncle John, I have heard that you said that I couldn't see the boy.' They were both talking at the same time, you know, and Mr. Jones just did this, you know, when he said this, `George, God damn you, I have told you enough;' and then he just reached kind of over the stove, and bang! bang! and shot him twice.

"Q. Tell this jury what George Mathenia was doing with his hands at the time this man reached over the stove and shot him twice. A. He wasn't doing nothing, only had his arm placed on the stove that way (indicating), and his left hand just that way (indicating); just loose, like I have got mine now."

Witness stated that Mathenia had no gun that she could see; that she saw his hands, and that he did not put them in his pockets; that defendant got up when Mathenia walked over to the stove, which was between him and the defendant; that defendant fired twice, and then said, "God damn you, get out of here;" that Mathenia started out the door; that defendant followed, and fired a third shot, which she thought hit Mathenia in the back. "Q. Did you see what Jones did after he got on the outside of the house? A. Yes; he shot Mr. Leake." The court sustained an objection to the answer, and directed the jury not to consider it. The evidence shows that Mathenia ran down the road about 50 yards and fell down at a bridge. The first two shots struck Mathenia in the breast, one a little above and the other a little below the heart, and passed through his body. The wounds were fatal, Mathenia dying 60 days thereafter. Deceased was in his shirt sleeves. Several witnesses followed deceased to the bridge and found no weapon on his body.

Willie Rogers, a witness for the state, testified:

He was in the road when Leaks, Coppage, and Mathenia drove up, and Mathenia went in the house; that in a little while he heard two shots before Mathenia got out of the house; heard five shots altogether; saw the flash of the third shot from the door somewhere; Mathenia was then in the yard, running; that he "hollered, `oh, Lordy !' or something `nother; that Jones had shot him"; that defendant came out behind Mathenia; that Mathenia went down the road to that little bridge, and fell down there.

"Q. What did Jones do after he got out in the yard? A. That's when the shooting taken place with Mr. Leake.

"Q. How many shots did he fire there?

"Mr. McKay: They know that the court has been ruling against that.

"By the Court: Sustain the objection.

"Mr. McKay: I'll let them prove everything they want to.

"Q. What happened there?

"By the Court: I told you this morning 1 was going to sustain that.

"Mr. McKay: Yes, sir; but they have got it to the jury.

"By the Court: I don't know what they are going to do.

"Mr. Ward (special counsel for the state): Just proving the facts in this case.

"By the Court: That isn't in this case.

"Mr. Ward: have three decisions of the Supreme Court (interrupted)

"By the Court: I don't care if you have got seven; I am ruling on this case.

"Q. Tell what you saw then. A. I saw the flash of two shots when he shot Leake.

"Q. Then what did he do? A. He came out in the road."

On cross-examination, witness stated:

He heard Mathenia say when he ran out of the house, "Oh, Lordy!" and "Jones shot me!" "Q. Did you hear anybody say anything who was standing out about the stand? (a refreshment booth). A. I heard Mr. Leake holler— ask what they were doing in there, and `Cut that out!'

"Q. Did you notice what he (Leake) was doing with his right (interrupted)— A. No, sir; not right at that time.

"Q. Just a moment later. (Objection by the state sustained.)

"Q. Did you see him Leake] draw a gun? A. No, sir; I did not see him draw no gun.

"Mr. McKay (out of hearing of the jury): Defendant now offers to show by the witness Rogers that, just after the defendant came out of the house, Leake was standing up by the fence, and, just instantly before the defendant shot Lake, Leake drew a pistol from his bosom, and excepts to the court's refusal to permit us to show it.

"By the Court: The court said the Leake matter, as the court views it, is an entirely different proposition, and you have both at times objected to it, getting it, and it looks like to the court, like you both now and then try to get it in. The court is still sustaining objections on both sides.

"Mr. McKay: I am going into it, your honor, because your honor permitted the state to show by one witness that the defendant killed Leake.

"By the Court: It is true that an answer was `wormed in,' but on your request, as I recall it, I ordered that all stricken from the record, and the jury to disregard it; if I didn't, I will order that all now stricken from the record, and the jury will disregard anything about the Leake matter.

"Mr. McKay: Exception."

Other witnesses to the homicide testified for the state, but the foregoing is sufficient to present the questions raised by the appellant. A number of witnesses for the defense testified that the general reputation of the defendant for peace and quiet was good, and that the general reputation of the deceased as a violent, dangerous, and turbulent man was bad. No rebutting evidence was offered by the state as to the...

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