State v. Lamont

• Decision Date: 30 November 1915
• Docket Number: No. 18741.,18741.
• Citation: 180 S.W. 861
• Parties: STATE v. LAMONT.
• Court: Missouri Supreme Court

180 S.W. 861

STATE v. LAMONT.

No. 18741.

Supreme Court of Missouri, Division No. 2.

November 30, 1915.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Thomas H. Lamont was convicted of murder in the second degree, and he appeals. Affirmed.

On the 24th day of October, 1914, the prosecuting attorney of Jackson county filed in the criminal court his duly verified information, charging defendant with murder in the second degree. After formal arraignment and plea of not guilty a trial was had, which resulted in a verdict of guilty and assessment of punishment at a term of 10 years in the penitentiary. After ineffectual motions for new trial and in arrest judgment was entered in accordance with the verdict, from which defendant has appealed to this court.

The indictment is in approved form, and its sufficiency not challenged.

On the part of the state the evidence tends to prove that Thomas H. Lamont (the defendant) and his brother, Rafelle Lamont, were, on March 29, 1914, engaged in the bakery business at 548 Troost avenue in Kansas City. On the morning of the difficulty, and at about 8 o'clock, Rafelle Lamont, having finished his morning delivery of bread, and while engaged in unhitching his horse, observed a loose horse in a lot to the rear of the Lamont bakery. It appears that this horse was the property of one Joe Stacy, employer of deceased, Sanders, but was being eared for and kept by Sanders in a stable located on a lot within close proximity to the bakery. While it does not clearly appear, yet it seems that this horse was eating feed which belonged to the Lamonts, and that Rafelle Lamont, upon observing this, took a whip and began beating the horse, whereupon the deceased, who lived near the bakery, appeared, as he said, for the purpose of taking the horse back to his own premises, and requested Rafelle Lamont to discontinue the whipping. This was immediately followed by the use of considerable profanity on the part of both Rafelle Lamont and the deceased, and by Rafelle Lamont's threat that, "I will whip you like I do the horse." At this stage the defendant, who had been standing on the back porch of the bakery, observing the actions and conduct of both parties, went into the bakery, passed down the stairs and out through the basement, which was on a level with the yard in which the quarrel was taking place. By this time the deceased had caught his horse and was in the act of leading it away. Defendant, when within about 10 or 15 feet of deceased, asked, "What are you doing over here?" to which the deceased replied, "I came over here to catch that horse." Defendant then said, "What did you let him loose for?" whereupon deceased replied, "The boss said to let him loose." Defendant then said, "What for?" and, after being told by the deceased that, "You are always hollering," said, "You are a G_____ d_____ yellow dog son of a bitch." Upon uttering these words he picked up a brick, threw same, and struck deceased in the side, and immediately thereafter took from his pocket a 32-caliber revolver and shot the deceased once. The deceased ran a short distance and fell, and, after being carried to the hospital, died within a short time.

The evidence also discloses that shortly after the shooting had taken place a 32caliber revolver, with one empty chamber, was found underneath a counter in the Lamont bakery. After the shooting defendant disappeared and remained away for a period of 36 days.

The defendant offered evidence tending to prove that when Rafelle Lamont returned to the bakery on the morning of the trouble, he found the horse heretofore referred to in his rear yard, eating his horse feed. He says he merely pushed the horse away, and that the deceased, who was about 100 feet distant, began cursing, abusing, and threatening him, whereupon he became frightened and went into the bakery. The defendant, who had heard the quarreling and swearing, asked him the cause of the disturbance, and was told that the deceased had teen cursing and calling him "all kinds of tad names." Thereupon defendant went into the yard and, upon inquiring of deceased as to his reasons for abusing his brother, was himself violently cursed and threatened. His evidence discloses that at this juncture the deceased advanced towards him with a brick in each hand, all the time cursing and threatening him, and that he threw one brick, which did not hit defendant. Defendant then ran towards the bakery in an effort to avoid the deceased and the brick which deceased then had in his hand and was in the act of throwing; that, finding the entrance to the basement small, and believing that he was in great danger, he drew his revolver and fired one shot, which struck deceased in the side. The defendant testified that it was his custom to carry a revolver in his pocket when he went out to feed his horses or a morning, stating that his reason for this was that the neighborhood in which he resided was generally known as a tough district. He further testified, in explanation of his flight and absence after the shooting, that he was afraid the negroes in that community would attack him.

Defendant introduced several witnesses who testified to his good character and general reputation.

Willis H. Leavitt, of Kansas City, for appellant. John T. Barker, Atty. Gen., and S. P. Howell, Asst. Atty. Gen., for the State.

REVELLE, J. (after stating the facts as above).

I. Appellant's first insistence is that the judgment should not stand because of the poison and prejudice in which it was...