State v. Kyle

• Citation: 225 S.W. 1012
• Decision Date: 01 December 1920
• Docket Number: No. 22220.,22220.
• Parties: STATE v. KYLE.
• Court: Missouri Supreme Court

225 S.W. 1012

STATE v. KYLE.

No. 22220.

Supreme Court of Missouri, Division No. 2.

December 1, 1920.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

H. W. Kyle was convicted of murder in the second degree. Motions for new trial and in arrest were overruled, and defendant appeals. Reversed and remanded for new trial.

On July 3, 1919, the prosecuting attorney of Pemiscot county, Mo., filed in the circuit court of said county a verified information, charging defendant with murder in the first degree, on account of the shooting of Jack Henning, deceased, on the _____ day of April, 1919, in the county and state aforesaid. The information is in the usual form. On July 21, 1919, defendant appeared in court, waived formal arraignment, and entered his plea of not guilty. The state elected to try defendant for murder in the second degree. On July 26, 1919, defendant was placed upon trial before a jury, and the latter returned into court the following verdict:

"We, the jury, find the defendant guilty as charged in the information, and assess his punishment at imprisonment in the penitentiary for ten years.

                "M. O. Hickerson, Foreman."
                

Defendant, in due time, filed motions for a new trial and in arrest of judgment, both of which were overruled and the cause duly appealed by him to this court.

The homicide occurred at Cottonwood Point, in the southern part of said county, in April, 1919.

The testimony of the state tended to prove the following facts:

Coroner Crowe testified that he held an inquest over the body of deceased, and that he found seven bullet holes in the body entering his back.

Nick Gurnow testified that he helped dress the body of deceased; that he found seven bullet holes in his body, three in the small of the back, one behind the left shoulder blade, one through the thick part of the hip, one through the back side of the muscle of left arm, and one through the skin of the throat, striking the chin, all the holes being small.

Jobbey Thompson corroborated the testimony of Gurnow.

Dr. P. C. Tipton testified that deceased lived at Cottonwood, in a houseboat on the old river bank; that about 5 p. m., on the clay of shooting, witness was about 100 yards from deceased when the first shot was fired; he heard no previous altercation; deceased was about 40 feet from defendant and farther down the river; defendant was standing with his gun up and deceased was falling; after the first shot, deceased said, "Oh, Lordy;" that appellant advanced a step and fired again, deceased at that time being down on his right elbow, with his back to appellant; that, just after the first shot, deceased seemed to fall on his back and turned over; that, after the third shot, deceased again said, "Oh, Lordy;" that deceased's wife came from the houseboat when the shooting was practically over, and at that time defendant was returning to the boat. She asked defendant if he shot her husband. He answered, "Yes," and walked on to the boat.

On cross-examination, witness testified that deceased was practically down on his right elbow when the rest of the shots were fired; that he seemed to be trying to get up with his elbow as a brace; that his body moved; that Mrs. Henning spoke to defendant, but witness did not know what she said; that defendant replied, "Well, I guess, Mrs. Henning, I may be that;" that deceased never straightened up after the first shot was fired into him.

Mrs. Henning, wife of deceased, testified: That in April, 1919, she lived at Cottonwood, Mo., in a houseboat. That, on the day he was killed her husband was engaged in sawing logs for firewood. That the shooting occurred about 4 or 5 o'clock p. m. That about 10 minutes before the affray, deceased went back to his sawing, and she went out to pick up some wood. That at this time their houseboat was 20 or 30 yards below where deceased was engaged in sawing wood. That she heard a shot, and the following words spoken by deceased: "Lord, have mercy ! Don't do that any more. You've done killed me." That she threw down the wood and ran towards deceased. That appellant kept advancing and shooting, the last shot being fired by the time she reached deceased. That the latter was lying almost on his face. That, after the first shot, she observed deceased lying on his elbow, while appellant was at his back shooting and stepping up. That when she reached deceased, defendant turned to leave and said to deceased:

"Lie there, you d____n son of a b____ h! I killed you because you wouldn't kill Finley and told on me."

That defendant then walked back to the boat and went towards home. That deceased had no weapon in his hand. That he had a cheap pocket knife in his pocket, closed. That there was no weapon on the ground. That, at the time of the shooting, deceased's pistol was pawned for a debt and had not been redeemed. Joe Finley, Lee Smith, and Jim Wattle helped carry deceased home. That she observed two bullets in his breast. That deceased said: "He shot me through and through. 7. am bound to die." That deceased lived about 1½ hours, and expressed no hope of recovery. That shortly before his death, deceased said to her:

"I am gone. Kiss me. I am going, darling. Kiss me, darling. I am going, because I can't come to you any more, but you can come to me, because I am going home."

That he called for a doctor to make him die easy, because he was bound to die. Monroe Robinson testified that he was at Dave Abbott's hay barn, about a quarter or half mile from where deceased was killed; that he heard six shots about 5:30 p. m.; that at the fourth shot he heard deceased say, "Oh, Lordy! don't kill me," or, "You've done killed me;" that he heard four such exclamations; that deceased was conscious when witness got there and realized that he was going to die.

Mrs. Monroe Robinson testified that while on the back porch of her home, a quarter or half mile from the difficulty, she heard two shots; then she heard deceased say, "Oh, Lordy! Don't, you have killed me;" that be begged like that until four shots were fired; that she went to the home of deceased; that the latter was in his right mind and realized that death was approaching. She testified that neither she nor her husband were on speaking terms with defendant.

John Finley testified that deceased's house was in the old schoolhouse yard; that the place of killing was between said house and the river.

Wm. Jobbey Thompson testified that defendant had carried a Winchester on his boat for about three months before the killing.

Mr. Howell testified that defendant, the next morning after the affray, said he had killed the damn son of a bitch.

Defendant's"Evidence.

Four of defendant's witnesses testified that deceased had a bad reputation for being a violent, dangerous, and turbulent man. Four of defendant's witnesses likewise testified that defendant's reputation for being a quiet, peaceable, and law-abiding citizen was good.

V. G. Hicks, son-in-law of defendant, testified that, about one month before the killing, he saw deceased and defendant on the latter's ferryboat; that deceased was then carrying a 12-inch policeman's club; that he saw deceased with this club several times.

Mr. Vickers testified that several times on the ferryboat, and on the bank near the ferry, he saw deceased carrying a leather policeman's billy; that on several occasions defendant would walk around deceased; that the latter would walk around defendant, bite his lips, and keep his hands in his pocket. Witness testified that, shortly before the killing, deceased, defendant, and witness were on the ferryboat; that defendant went to another part of the boat, and deceased said, "That's the bull _____ son of a bitch he'd ever seen," and said:

"Wouldn't fool with him much before he'd put him in the river and shoot his hide in a tan yard."

Josie Williams testified that, two or three days before the killing, deceased had a shotgun and was going towards his home.

Clark Albott testified that he was at deceased's house about 30 minutes after the difficulty, and saw a loaded double-barreled shotgun lying across a bed in the room.

Steve Pate testified that, on Wednesday before the difficulty, deceased tried to borrow a pump shotgun from him.

Andy Tate testified that, about three weeks before the trouble, he had a conversation with deceased; that the latter saw defendant on the ferryboat at that time, and said "it was about all he could do to keep off that son of a b____"; that, on another occasion, deceased told witness he met defendant on the levee, and the latter spoke to him, and he told "the son of a b____ not to speak to him again or he would kill him if he did."

Charlie Kyle testified: That, about one week and a half before the difficulty, he met deceased on the levee; defendant and Dial passed by. That deceased said:

"There goes a G____d d____n hound-legged son of a b____h. I told him down the levee awhile ago what I'd do for him. I am going to do it now."

That on another occasion, at Watson's store, deceased told witness he had given defendant a g____d d____n good rounding up down there; called him every kind of a G____d d____n bad name in the world that he could; called him every kind of a son of a b____h in the world. That appellant did not resent it, and said nothing. Kyle says he told defendant what deceased said about him.

Mr. Warren testified that, shortly before the affray, while he, deceased, and others were on the levee, defendant came riding by on his horse and spoke to the crowd, and deceased remarked to him:

"You God damn baldheaded son of a b____h! don't you speak to me. Your'e a worse thief than old man Dial. You got up there and swore a lie against me to beat me out of my board bill."

And defendant just rode on down. Shortly thereafter, he said to witness:

"I don't want to kill either one of them, as far as that is concerned, but I'm a man from the muscle. I want to take one by one hand and the other by...