State v. Littler

• Decision Date: 31 May 1916
• Docket Number: No. 19386.,19386.
• Citation: 186 S.W. 1045
• Parties: STATE v. LITTLER.
• Court: Missouri Supreme Court

186 S.W. 1045

STATE v. LITTLER.

No. 19386.

Supreme Court of Missouri, Division No. 2.

May 31, 1916.

Appeal from Circuit Court, Chariton County; Nat M. Shelton, Judge.

B. F. Littler was convicted of assault with intent to kill, and he appeals. Reversed and remanded.

Defendant was charged with an assault with intent to kill. He was convicted and sentenced to four years in the penitentiary. About the 7th of August, 1914, defendant put two pistols in his pockets, and, with an automatic shotgun in his hands, called at his father's gate in order to get the father to go with him to see Arthur Walters in regard to some report about defendant's sister. Defendant's father and mother, his brother Edmond, and Mrs. Burnett, were sitting in the yard near the gate. Defendant asked his father three or four times whether he would go with him (defendant) to see Walters, getting louder and nearer to his father at each repetition of the question. To every request the father answered, "No." After the last answer the gun was discharged, shooting the father in the elbow, causing the loss of the arm. There followed a struggle between the two brothers for the possession of the gun, in which the brother got the gun and struck the defendant over the head with it, causing a considerable superficial wound.

The state's evidence shows that defendant then asked his mother if it was not an accident, and that she answered: "No, Bennie; no."

The mother testified for defendant that the gun was under defendant's arm when it went off, and that immediately thereafter defendant said it was an accident, and that he repeated it often, saying that he was sorry. She further stated that defendant and his father were on good terms at the time of the shooting. On cross-examination she testified that defendant and his father on several occasions had "ugly rows."

The father testified that the gun went off just after defendant went through the fence, and that the gun was under defendant's arm at the time. He stated that he would not have been hit had he not turned round just at that time. He further testified that his wife said, "Bennie, you have shot your Pa's arm off," and that defendant said: "I didn't aim to do it, Ma; don't let them take it off."

Defendant testified as follows:

"Q. Now, I will get you to tell the jury if you intended to shoot your father that day? A. I did not. Q. Do you know how that gun came to be discharged? A. When I came up to my father's, I asked him to go with me to Pedee to adjust a matter, some talk that had been made about the family, and he refused, and I says, `Pa. you must go.' I says, `You will have to go.' I says, `I don't want to stand for any such talk as this,' or something like that, I couldn't remember just the words that I did say, and he said, `No,' that he wouldn't go. I was out in the lot, and I just climbed through the fence. He was standing at the anvil, and I just had the gun hanging on my arm, and I climbed under the wire and over the plank, and when I started to get through the fence I had to take the gun up this way (indicating) in my hand to keep it from catching on the plank, and I climbed through and took four or five steps toward my father so I could talk to him without these other parties hearing what I had to say, and when I got up close to him the gun was discharged, and that is all I am able to say. It kicked back and broke my finger. I had the gun in this position under my arm, and I just took hold of it with this hand to get through the fence; I never changed the position. I suppose I touched the trigger or it would not have gone off. I had it this way, and it wouldn't broke my finger without I had my finger on the guard. I have no recollection of touching the trigger. I don't know how it came to be discharged. It is what is called a safety gun, an automatic shotgun, a magazine gun. I don't know how many shells it had in it. If one shell is discharged, it will continue to fire if you hold the trigger down. My hand was caught in the guard, and of course, the gun kicked back and broke my finger. Q. Had you any ill will for your father at that time? A. No, sir; not a thing in the world between us that I know of."

There was a motion filed by defendant to quash the information on the ground that the defendant had not been accorded a preliminary examination in accordance with the act of March 17, 1913 (Laws 1913, p. 224), which enacted a new section in lieu of section 5056, R. S. 1909. The evidence was clear that the defendant had waived his right to such preliminary examination, and the motion was overruled.

Among the instructions given for the state were the following:

"First. If, upon consideration of all the testimony in the case, in the light of the court's instructions, you find and believe from the evidence, beyond a reasonable doubt, that at the county of Chariton and state of Missouri, on or about the 7th day of August, 1914, the defendant made an assault upon T. J. Littler with a shotgun and did shoot and wound the said T. J. Littler with said shotgun, and that he did so willfully, on purpose, and with malice aforethought, with the intent to kill the said T. J. Littler or do him great bodily harm, you will find the defendant guilty of an assault with intent to kill, as charged in the information, and assess his punishment to imprisonment in the penitentiary for a term not less than two nor more than...