State v. Lassieur

• Citation: 242 S.W. 900
• Decision Date: 08 June 1922
• Docket Number: No. 23395.,23395.
• Parties: STATE v. LASSIEUR.
• Court: United States State Supreme Court of Missouri

242 S.W. 900

STATE v. LASSIEUR.

No. 23395.

Supreme Court of Missouri, Division No. 2.

June 8, 1922.

Motion for Rehearing Overruled June 19, 1922.

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

Charles Lassieur was convicted of murder in the second degree, and he appeals. Affirmed.

On the 2d day of July, 1921, defendant shot and fatally wounded one Ed Holcomb in Dunklin county. Holcomb died on the 29th of the same month. For this act defendant was charged by information with murder in the first degree, and upon a trial was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of 15 years. The usual motions were filed and overruled, and from the judgment and sentence he has appealed. His plea was self-defense.

The evidence showed that appellant and the deceased were neighbors, and that appellant lived from a quarter to one-half mile north of the deceased, and on the same side of a road running north and south. There had been some family differences of a nature not made clear in the record, and there was testimony pro and con of threats made by the deceased and the appellant against each other, involving the purpose of the one to take the life of the other.

On the evening of the fatal shooting, a daughter of deceased had gone to appellant's house, apparently for the purpose of having an interview with appellant's daughter, and the two had gone a short distance north of the house, on the above-mentioned road, to hold their conversation. The deceased followed his daughter up the road, until be came to a point on the road directly in front of appellant's house, which stood on the west side of the road, with its front toward the east. Appellant was standing in his yard, a short distance from the road where the deceased was. The testimony differs as to what occurred.

On the part of the state, it was shown that, as deceased came up in front of appellant's house, appellant addressed abusive language to him and accused the deceased of having come up to cause trouble; that the deceased replied in the negative, simply saying that he had come up for his daughter; that the appellant thereupon ordered him away, and, as the deceased turned to start south on the road, appellant shot him in the back with a pistol, the ball striking the spinal column and passing clear through the body, making its exit about two inches below the nipple of the left breast; that, as deceased fell, appellant said, "I told you to get out from here, you _______," but finally said, after deceased had told him he would leave as soon as a wagon could be procured to haul him away, "I hate it now, Ed." There was further testimony on the part of the state to the effect that appellant remained in his yard with his pistol in his hand from the time he had shot Holcomb until a wagon had been brought to removed the deceased to his own house, and that he threatened the wife of the deceased, who had come to administer to her husband while lying in the road. No weapons were found on the person of the deceased.

On the part of the defense, there was testimony to the effect that the deceased approached appellant's house menacingly, and, after some challenging remark to the appellant, drew a revolver and attempted to shoot appellant, but that his pistol only snapped or missed fire, whereupon appellant drew his own pistol from his pocket and fired the fatal shot, and that the deceased, as he fell, dropped his revolver. Appellant's wife, at his direction, picked it up and kept it until the trial, when same was offered in evidence. Appellant never examined said revolver, and his wife made no disclosure of her possession until at the preliminary hearing of her husband. The jury apparently did not believe the evidence of the defense, and it was its duty to pass on the weight of the evidence. State v. Affronti (Mo. Sup.) 238 S. W. 106. Appellant complains of manifold errors in the trial, which, with pertinent facts, will be discussed in the course of the opinion.

Hall & Billings, of Kennett, for appellant.

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

REEVES, C. (after stating the facts as above.

1. Two days before the begin; sing of the trial, the prosecuting attorney, with leave of court, indorsed the names of two additional witnesses on the information. Appellant's counsel strenuously objected upon the ground that the intervening time was insufficient to enable him to prepare to meet the testimony of such added witnesses, and moved for a continuance, but was overruled. He complains that this was error. We have repeatedly held that, under section 3889, R. S. 1919, witnesses other than those indorsed on the indictment or information may be called and examined on behalf of the state, and particularly is that true where the names of the witnesses were not improperly withheld, and worked no surprise or disadvantage to the defendant, as in this case. State v. Julin (Mo. Sup.) 235 S. W. 818; State v. Barrington, 198 Mo. 23, 95 S. W. 235; State v. Myers, 198 Mo. 225, 94 S. W. 242; State v. Jeffries, 210 Mo. 302, loc. cit. 324, 109 S. W. 614, 14 Ann. Cas. 524; State v. Jackson (Mo. Sup.) 186 S. W. 990; State v. Ivy (Mo. Sup.) 192 S. W. 733; State v. Webb (Mo. Sup.) 205 S. W. 187.

2. The complaint that the court restricted appellant's counsel in the voir dire examination of the jurors is wholly without merit. The court gave appellant's counsel great latitude in the examination of the jurors, but properly insisted that questions pertaining to appellant's plea of self-defense should be correctly framed. Appellant's attorneys were afforded every opportunity to elicit such information as would enable them to make their challenges for cause, as well as to aid in their peremptory challenges.

3. After the case was set for trial, appellant sought a continuance, as above stated, on the grounds that he had not had an opportunity to prepare his case, and that he needed more time to meet the testimony of the witnesses whose names were indorsed by consent of the court on the information. His application was overruled, and he complains. We have carefully examined the affidavit filed by him, under section 3997, R. S. 1919. This affidavit does not meet the requirement of the statute, and is vague and indefinite as to any witnesses whose presence he might need. It is within the sound discretion of the trial court as to whether a continuance shall be granted. State v. Yeager (Mo. Sup.) 209 S. W. 883; State v. Lewkowitz, 265 Mo. 613, 178 S. W. 58; State v. Richardson, 194 Mo. 326, loc. cit. 336, 92 S. W. 649.

We do not find that the trial court abused its discretion, as appellant was not only afforded every opportunity to procure the attendance of his witnesses but offered testimony in contravention of the testimony of the state on each and every issue, and at no time indicated embarrassment on account of absent witnesses.

4. Appellant makes numerous assignments of error with respect to the admission of testimony. One complaint is to the effect that the court permitted Dr. Drace to testily as to communications made to him by witness Janie Lassieur. State's counsel elicited from this witness that s...