State v. Likens

• Decision Date: 20 May 1921
• Docket Number: No. 22622.,22622.
• Parties: STATE v. LIKENS.
• Court: Missouri Supreme Court

231 S.W. 578

STATE v. LIKENS.

No. 22622.

Supreme Court of Missouri, Division No. 2.

May 20, 1921.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

J. C. Likens was convicted of murder in the second degree, and he appeals. Affirmed.

I. V. McPherson, of Aurora, and W. B. Skinner, of Mt. Vernon, for appellant. Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

DAVID E. BLAIR, Judge.

Defendant was convicted in the Lawrence county circuit court of murder in the second degree, and sentenced on the verdict to imprisonment for 15 years in the state penitentiary, and has appealed.

The information charged murder in the first degree, but the state elected to try for second degree murder. Defendant killed one Fred Snyder on the 2d day of July, 1918, in Lawrence county. The wife of deceased was a sister of the defendant. Her father, Wheat Likens, lived with deceased and his wife at the time of the killing. The defendant had been living upon a nearby farm, containing about 200 acres owned by Wheat Likens. Because of arrears in rent he had shortly before been dispossessed by legal proceedings. The deceased had thereafter put in a crop of oats on a part of that farm.

Shortly before the killing the defendant had returned to the Likens place. Some of his cattle had gone into the oatfield of the deceased, and the controversy over this and over the previous dispossession of defendant was) largely the cause of the hard feelings between deceased and the defendant which led to the killing. Shortly before the killing the defendant discovered that his cattle had been driven out of the oatfield of the deceased, and he claimed that they had been abused and beaten. He became very angry, and talked with neighbors and others on the public highway, and made threats to kill the man responsible for beating his cattle. The day before the killing, and immediately after making these threats, he went to deceased's house, and asked for the deceased, who happened to be away at the time.

On the morning of the killing the deceased and his son Carl were plowing corn near the oatfield, when deceased discovered that a number of shocks of oats had been thrown down, and went to that part of the field and set up the shocks again. Early in the afternoon he left his team with Carl and started across toward the oatfield again, and after he had been gone a few moments Carl heard several shots. Climbing on top of his cultivator he raised himself to a sufficient height to be able to see over higher ground between, and saw defendant standing in the oatfield near a large sycamore tree, and saw smoke, apparently from the revolver shots. The defendant moved around aimlessly for a moment or two, and walked toward the road and turned back again, and, as Carl started in that direction, the defendant walked across the field and disappeared in the timber. The son found his father dead, lying face downward on the ground. It was discovered that there were three pistol bullet wounds in the back and one on the front of the body.

The defendant disappeared from the neighborhood immediately, and no one saw him after Carl Snyder watched him enter the timber, until in February, 1919, when he was arrested at his brother's home in Dade county, some 30 miles from the scene of the killing. The sheriff of Lawrence county and the sheriff of Greene county scoured the country, looking for the defendant, immediately after the killing, and until a late hour that night, but found no trace of him. On receipt of word that the defendant had been seen at his brother's home in Dade county, the officers watched that place one evening, and failed to locate the defendant. They returned early the next morning and concealed themselves in some brush and sprouts near the house, and finally the defendant appeared, followed by a dog, and started in their general direction, when they were discovered by the dog. The defendant approached their place of concealment, apparently to investigate the cause of the dog's excitement, and the officers commanded the defendant to throw up his hands. The defendant jumped, and immediately turned and started to run. One of the officers shot the defendant with a shotgun, and brought him to his knees. The officers captured him, and upon search found a revolver in his pocket.

At the trial the defendant testified that on the afternoon of the killing he had been down to get his mail at the mail box on the public road, and as he returned past the oatfield he saw the deceased setting up the oat shocks. His testimony in chief as to what transpired there was as follows:

"Q. Go ahead. Tell what took place over there. A. I walked on down the road, going towards home, and when I got down to pretty near even with him he was looking up that way and spoke, and I spoke to him. He says, `Come out this way, Charley.' I walked out to pretty close to where he was, and he said, `Somebody is tearing my oats down;' and I said, `Somebody has been beating my cattle up,' and he said, `I am not going to stand up with this any more; I will fix this with you;' and started towards me, and put his hand back in his hip pocket, and I pulled my gun and started shooting. He wheeled, and looked like he had started to get his gun ready. It seemed as if he was trying to do something, and I shot three more shots at him and he fell.

"Q. Why did you draw your gun and shoot him? A. Because I thought he was going to shoot me.

"Q. You did it to prevent that? To save yourself? A. Yes, sir."

Search of the scene immediately after the killing showed that deceased had no weapon whatever. All the articles that were found on his person were a watch, a small piece of tobacco, and an ordinary unopened pocketknife in the hip pocket of his overalls. No weapon or missile of any kind was found anywhere near where the deceased was lying.

The defendant explained his leaving the vicinity by stating that he started to go to one of the neighbors, and then happened to think if he remained in the neighborhood he might be the object of mob violence, and so left. He claimed to have been at his brother's in Dade county from that time until his arrest. He left his cattle without any provision for their care and attention. He did not deny having attempted to flee at the time the officers sought to arrest him, and made no explanation of his conduct at the time. He offered testimony tending to show that he sustained a good reputation as a quiet, peaceable, and lawabiding citizen.

Defendant's counsel has `filed no abstract of the testimony, and has favored us with no assignment of errors, brief, or argument. The points suggested for our consideration as alleged error by the motion for a new trial and the motion in arrest of judgment, are as follows:

(1) The admission of illegal and incompetent testimony offered by the state, and the exclusion of legal, competent, and material evidence offered by the defendant.

(2) Improper cross-examination of defendant on matters not testified to by him in chief.

(3) The giving by the court of illegal and improper instructions, and the refusal of the court to instruct on all the law of the case, particularly upon manslaughter in the fourth degree.

(4) The insufficiency of the evidence to support the judgment.

(5) The information fails to charge any crime under the laws and Constitution of this state, and is too vague, indefinite, and uncertain to inform the defendant of the accusation against him.

(6) That the verdict is not sufficient in form or substance to support the judgment.

We have carefully studied the transcript of the evidence, and have failed to find any testimony offered by the state and admitted over the objection of the defendant, or any evidence offered by the defendant and excluded by the court, where we regard the court's action as prejudicial to the substantial rights of the defendant. Numerous exceptions were saved by the defendant during the course of the trial to adverse rulings of the court, but we fall to find reversible error in such rulings in the light of the entire record. Our attention has not been specially directed to any particular testimony which was introduced by the state or excluded when offered by the defendant. No good purpose can be served by detailing the circumstances attending the various rulings appearing in the record.

Error Is claimed in permitting improper cross-examination. We note that defendant testified in chief in regard to a conversation...