State v. Keller

• Decision Date: 26 February 1926
• Docket Number: No. 26860.,26860.
• Citation: 281 S.W. 960
• Parties: STATE v. KELLER.
• Court: Missouri Supreme Court

281 S.W. 960

STATE v. KELLER.

No. 26860.

Supreme Court of Missouri, Division No. 2.

Opinion filed February 26, 1926.

Motion for Rehearing Overruled March 20, 1926.

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

H. C. Keller was convicted of murder in the second degree, and he appeals. Affirmed.

See, also, 263 S. W. 171, 304 Mo. 63.

W. R. Hall, of Kennett, and W. E. Glenn, of Campbell (Alexander & Coffer, of Cape Girardeau, of counsel), for appellant.

North T. Gentry, Atty. Gen. (C. E. Curtis, of Jefferson City, of counsel), for the State.

WALKER, P. J.

In January, 1923, the defendant was charged by information in the circuit court of Dunklin county with murder in the first degree in having shot and killed Marvin Dalton. Defendant entered a plea of not guilty, was tried to a jury, and on the 1st day of March, 1923, he was found guilty, and his punishment assessed at 12 years' imprisonment in the penitentiary. He appealed from this finding, and the case was heard in this court at the April term, 1924, the record showing that the defendant had not been given the required time for the filing of a motion for a new trial; that judgment was rendered on the verdict of the jury before the filing of said motion; and that defendant had not been afforded the right of allocution. Upon its being shown on an application for a diminution of the record that the transcript did not correctly state the order of procedure in the trial court, the case was reversed and remanded, with directions to have the defendant arraigned for allocution and judgment as provided by section 4057, R. S. 1919, and to certify to this court the correct record entries in regard to the time of the filing of the motion for a new trial and the entry of judgment.

The ruling in this case, under the facts as construed by the majority, is not without precedent. State v. Taylor (Mo. Sup.) 256 S. W. loc. cit. 1062. Upon the case being remanded, it was found by the court and made a part of the record that the motion for a new trial had been filed before the entry of the judgment, and, upon the defendant being granted an allocution, judgment was entered against him in accordance with the verdict, and a transcript of these proceedings was certified to this court, and the record perfected as directed. Upon it appearing that the clerk of the Dunklin circuit court had not certified to the correctness of the transcript, counsel for defendant asked and was granted permission to have the transcript forwarded to the clerk of the Douglas circuit court that a certification of its verity might be officially made by him. This was done and the original transcript was certified to by the clerk under the order of the trial court, and returned to this court, and at the January call of the October term, 1925, the case was heard and submitted.

The Facts. — On the afternoon of September 2, 1922, Marvin Dalton, the deceased, was standing on the street of Campbell, a village in Dunklin county, in conversation with several persons. Upon leaving the others he started up the street in a westerly direction. The defendant was crossing the street, and approaching the deceased he pulled a revolver and shot the latter in the breast. Just before the shot was fired the deceased was heard to say, "Now, what about it?" but he made no demonstration. Defendant and the deceased then grappled and a scuffle ensued to secure possession of the revolver, in which the defendant several times struck the deceased in the face. Finally, the deceased got possession of the revolver and fired a shot, which went wild. He then collapsed and, falling to the ground, died in a few moments. Two or three weeks prior to the shooting a witness, while at the defendant's house, was shown a target by the latter, who said he had told his wife that if "Mr. Dalton," the deceased, "said anything out of the way, I'll fix him right there," pointing to the target.

The defendant's testimony was that it had several times been communicated to him by others that the deceased had a year or more before the killing threatened the defendant; that the deceased had assaulted him, when or under what circumstances it is not disclosed; that on the day of the homicide defendant met the deceased, who was coming towards him, and, when the deceased was near him, he said, "Here's where we will settle our troubles," and kept advancing, his left hand extended towards defendant and his right hand by his side; that defendant then took a couple of steps backwards and fired; that after the first shot deceased grappled with him. His reason for shooting deceased was that he was afraid that deceased would kill him or do him great bodily harm; that he had heard people say that deceased was a turbulent, quarrelsome, and dangerous man. Defendant denied having shown a target at which he shot, or of having made threats against deceased.

After the defendant had rested, the state offered testimony tending to prove that, a few days prior to the killing, defendant, in speaking to a constable about being arrested, said: "I can't help it; a fellow can't take everything." On cross-examination the defendant admitted that this statement was made in reference to the deceased. That at one time when deceased and defendant met at a gravel pit deceased denied ever threatening to take the life of defendant and defendant admitted during the conversation that he had threatened to take the life of deceased. That one of defendant's witnesses, who had testified to threats made by deceased against defendant, had said that he never had heard either one say anything against the other; that deceased's reputation in the neighborhood in which he lived was that of a peaceable, law-abiding, quiet citizen.

[1] I. Delivery of Jury List. — Defendant contends that the trial court erred in not giving him a list of the jury panel 24 hours before the trial. It is difficult to determine from the indefinite and confusing manner in which the transcript is made up whether that portion in regard to this contention is a part of the record proper or if it was attempted to be incorporated in the bill of exceptions. It might well be held that it is not in the bill of exceptions. This is a case, however, involving the defendant's liberty for a long term of years, and whatever latitude is permissible under our statute and rules of procedure should be extended in the consideration of this case.

The following occurred in regard to this contention when the case was called for trial:

"Mr. Hall (counsel for defendant): I object to turning the list in until 5 o'clock this evening, because it was not turned over to me by the state until 5 o'clock yesterday evening.

"The Court: The list of 40 jurors was turned over to you yesterday at 5 minutes to 12. Your objection is overruled."

[2-4] The bill of exceptions does not show the exact time when the trial began. The trial court ruled, despite counsel's contention, that the list was delivered to him at 5 minutes of 12 o'clock on the preceding day. The presumption that always obtains in regard to the regularity of the proceedings of a court of general jurisdiction, in the absence of any showing to the contrary, may here be invoked in support of the court's ruling, especially where, as in this case, the court affirmatively denied the statement of counsel as to when he received the list. Other than the declaration of the counsel for the defendant, there is nothing to show that the list was not timely delivered. Unless the record affirmatively shows that there is some foundation for the contention, it will not be sustained. Furthermore, the defendant, after the overruling of this contention, voluntarily went to trial, and, for this reason, he will not in this regard be heard to complain. State v. Lamont (Mo. Sup.) 180 S. W. 861.

[5] II. No Timely Objections to Errors. — It...