State v. Little
| Decision Date | 07 March 1921 |
| Docket Number | No. 22555.,22555. |
| Citation | 228 S.W. 793 |
| Parties | STATE v. LITTLE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Harrison County; L. B. Woods, Judge.
Jesse Little was convicted of assault to kill, and he appeals. Affirmed.
On February 13, 1918, the prosecuting attorney of Harrison county, Mo., filed in the circuit court of said county a verified information, which, without caption, signature, etc., reads as follows:
"Gilbert Barlow, prosecuting attorney within and for the county of Harrison and state of Missouri, on his oath of office informs the court that Jesse Little, on or about the 7th day of November, 1917, at the said county of Harrison and state aforesaid, did then and there unlawfully, feloniously and willfully make an assault on one Floyd Arney with a deadly weapon, to wit, a shotgun, loaded with gunpowder and leaden balls, which he, the said Jesse Little, then and there had and held, which said shotgun was then and there a dangerous and deadly weapon, with the intent him, the said Floyd Arney, unlawfully, feloniously and willfully to kill and do great bodily harm; against the peace and dignity of the state."
Defendant was arrested, waived a preliminary examination, was admitted to bail, was arraigned, entered a plea of not guilty, and his trial commenced before a jury on October 24, 1919. On the next day, the jury returned into court the following verdict:
"We, the jury, find the defendant guilty as charged in the information in this cause, and assess his punishment at two years (2 yrs.) in the penitentiary."
On and prior to November 6 and 7, 1917, the prosecuting witness, Floyd Arney, owned a farm of about 80 acres, in Fox Creek township, Harrison county, Mo., lying on the west side of a north and south highway in said township. Arney's house was located on said land and he lived there with his wife and child. His house was about one-eighth of a mile from said highway. Defendant, on above dates, lived south of Arney's on the east side of said highway. On the east side of Arney's land, there was a large plank gate, which opened onto the highway aforesaid, and through which Arney had to pass in going upon said highway. Immediately east of this gate, and on the west side of the highway where the shooting occurred, the ground was a little higher than it was on either side of said gate. On the east side of the highway from Arney's gate, there was a gap in the wire fence through which defendant passed in getting water for his stock. The gate and gap were about 50 feet apart.
Defendant's evidence tends to show that prior to the shooting, there was a ditch dug along the east side of the highway to drain the same, and that there was a ditch on the west side of the highway constructed for the same purpose, but it only extended to the strip of ground lying adjacent to and immediately east of Arney's gate.
It appears from the evidence that Andrew Jackson De Priest was the regular road overseer, but was engaged elsewhere, and Frank Neff was serving as road overseer for above highway. He was also trustee, under township organization. On November 3, 1917, Frank Neff, with defendant, Arney, and others were working on this highway. He was called in rebuttal by the state, and testified substantially that he was the road boss, under De Priest; that he was working said road on November 6, 1917, with defendant and others; that at the conclusion of work on that day defendant was settled with and the work was then completed; that the men did not work under him on the following day. He testified In regard to the conclusion of the work on November 6, 1917, as follows:
" (Italics ours.)
It appears from the evidence that on the morning of November 6, 1917, defendant, with the scraper, while Arney was at some other place on the highway, made a small ditch about three or four inches deep and some distance in width, across this "bench" or strip of land immediately east of Arney's gate. After dinner of the same day, defendant and Arney met, and got into a controversy over the act of defendant in making the ditch east of Arney's gate. The quarrel terminated in a partial fight in which they both fell after clinching, with Arney on top. Defendant says Arney hit him once while he was down; that they both got up and separated. Defendant claims he was authorized to dig this ditch in front of Arney's gate, by Frank Neff, on November 6, 1917. Neff says that after defendant dug the above ditch, he first authorized Arney to fill it up, but afterward withdrew his consent and told him if he did so it would be on his own responsibility. Neff testified, however, that when he countermanded the above permit, Arney had the ditch in front of his gate pretty well filled up. He further testified that he did not direct defendant to dig the ditch in front of Arney's gate.
(Italics ours.)
Defendant testified that when he and Arney had the fight or scuffle on November 6, 1917, the latter asked defendant why he made the ditch in front of his gate, and defendant told him the road needed the dirt; that Arney then said he would fill it up, and defendant informed him that if he did that he (defendant) would scrape it out again.
While matters stood as above indicated, at the close of November 6, 1917, Arney having refilled the ditch in front of his gate, the defendant — without authority, according to the testimony of Neff — on the morning of November 7, 1917, hitched his team to the sled, put on the scraper, laid a 20-gauge shotgun on his sled, and' started down to open the ditch again in front of Arney's gate. He took with him two shells, loaded with No. 6 shot. He drove down to and through the wire gap, across the road from the Arney gate, left the gun and sled there, hitched onto the scraper, and went to scraping in front of Arney's gate. Arney and his wife discovered what was going on, and started down to the Arney gate. He took a spade with him.
Defendant testified that when Arney got to the gate with his spade, he told Arney not to come into the road; that Arney unlatched the gate and was coming onto the road; that he (defendant) went over to and through the wire gap, got his gun, came back, and, in the meantime, Mrs. Arney had come into the road; that he then told Arney to go back inside the gate, and he did so, but Mrs. Arney stayed in the road; that he (defendant) took hold of the scraper and the lines and went to scraping, or was going to do so, when Arney stepped in front of the team and took hold of the bits; that he then tried to start the horses up, while Arney was using very profane language against him; that Arney had the spade in his hand while he was within three feet of defendant; that Arley made no motion with the spade to strike him; that after he got the gun, he put the lines over his shoulders, took the gun in one hand, and went on scraping, until Mrs. Arney got in front of the team; that he told her to get out of the way, slapped the team with the lines, and attempted to drive the team over her if she did not get out of the way. Defendant says Arney then started west rapidly, while his wife remained there in the road in front of the horses. He then testified In chief as follows:
Defendant did not let any one know he was going to open the ditch in front of Arney's gate that morning.
On cross-examination, defendant testified that Arney, while inside the gate, started towards his house and said something to his wife, but she did not move, but stayed right there; that he took the gun and walked five or six feet away from the scraper, near but north of the gatepost; that at the time he fired at Arney, his wife was south of defendant in the road; that she came rapidly to where he was; that she saw him walking north with the gun. He further testified:
(Italics ours.)
While Mrs. Arney was in the road, she asked defendant what authority he had for scraping the ditch out in front of their gate, and he said Frank Neff authorized him to do so.
Arney says he was from 50 to 75 feet away, with his back to defendant, going towards his home, when he was shot.
Dr. Sellers testified that about 88 shot entered Arney's body that he was able to...
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