State v. Lindsey

• Decision Date: 25 May 1928
• Docket Number: No. 28717.,28717.
• Citation: 7 S.W.2d 253
• Parties: STATE v. LINDSEY.
• Court: Missouri Supreme Court

7 S.W.2d 253

STATE v. LINDSEY.

No. 28717.

Supreme Court of Missouri, Division No. 2.

May 25, 1928.

Appeal from Circuit Court, Buchanan County; William H. Utz, Judge.

Clarence Lindsey was convicted of second degree murder, and he appeals. Reversed and remanded.

John E. Heffley and Phil A. Slattery, both of St. Joseph, for appellant.

North T. Gentry, Atty. Gen., and J. D. Purteet, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The appellant was charged by information in the circuit court of Buchanan county with murder in the first degree for feloniously shooting and killing Charles Graves. He entered a plea of not guilty and on a trial to a jury on October 27, 1927, was found guilty of murder in the second degree, his punishment assessed at imprisonment in the penitentiary for a term of 16 years, and, after a motion for new trial was overruled, he was sentenced in accordance with the verdict and appealed.

Lindsey lived with his wife and two children in a boathouse located on the east bank of the Missouri river in a suburb of St. Joseph. He engaged in fishing and raised chickens and a few hogs. About a week before the homicide he took his sow to George Graves' male hog. George was a brother of Charles Graves, the deceased, and lived about a mile from Lindsey. About 2 p. m., on Sunday, July 17, 1927, George and Charles drove to Lindsey's boathouse in George's one-horse wagon and told Lindsey his sow was ready to be returned. They drank seven or eight bottles of home brew and visited until about 5:30 p. m., when the three drove to George's place in the wagon. After spending some time there and drinking more home brew, they put the sow in a crate, put the crate in the wagon, and started back to Lindsey's. George and Lindsey rode on the seat at the front of the wagon and Charles Graves rode on the crate. On the way Charles and Lindsey became engaged in an angry controversy, got out of the wagon, and had a fist fight, in which Lindsey was knocked down and sustained a cut on his cheek. They shook hands, got in the wagon, and continued to Lindsey's place. Lindsey climbed out of the wagon and went into the boathouse, saying he would return in a few minutes. George and Charles unloaded the sow into the hogpen, and, after waiting a little while, got into the wagon to drive away. Just then George Graves saw Lindsey standing back of the wagon. Lindsey said to Charles Graves: "You s_____ o_____ b_____, square yourself." Charles rose to his feet, and Lindsey fired two or three shots at him. Charles fell across George's knees, then between the wagon spring and the wheel. Lindsey threatened to shoot George Graves, but George begged him not to do so, and succeeded in getting away and calling the officers. The shooting occurred about 10 or 15 minutes after Lindsey got out of the wagon. The coroner arrived about 7 p. m., and found the body between the wagon spring and the wheel. There were three gunshot wounds on the body, one in the arm, one in the back, and the third, which was fatal, in the forehead. The bullet which penetrated the skull and passed through the brain was found to fit the 45 caliber revolver taken from the defendant on his arrest. There were three loaded and three empty cartridges in the revolver.

The defendant testified there was no fight on the return trip from George Graves' house; that the three of them unloaded the sow; that he went to the house, got money to pay his bill to George, and, as he came back around the corner of the...