State v. Lloyd
| Decision Date | 05 June 1924 |
| Docket Number | No. 25332.,25332. |
| Parties | STATE v. LLOYD. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.
George Lloyd was convicted of murder in the second degree, and he appeals. Affirmed.
Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.
Statement.
Appellant, George Lloyd, was charged in an information filed in the circuit court of Stoddard county, Mo., on the 28th day of August, 1922, with the crime of murder in the first degree, in that on July . 23rd, 1922, he shot and killed one Bill Baker. Upon a trial had in said court on September 23, 1922, the jurors were unable to agree upon a verdict and were thereupon discharged. A second trial was had on March 15, 1923, and the jury found defendant guilty of murder in the second degree as charged in the information, and assessed his punishment at imprisonment in the penitentiary for a term of 12 years. Motions for a yew trial and in arrest of judgment were filed and overruled. Judgment was rendered, defendant sentenced in conformity to said verdict, and an appeal was granted him to this court.
State's Evidence.—The testimony as set out in respondent's brief is substantially correct and tends to show the following facts: That George Morris, on the morning of July 23, 1922. visited the home of defendant, George Lloyd, in Stoddard county, Mo.; that about nine o'clock a. m. on said day, the deceased, Bill Baker, and one Jim Baker came to the home of defendant and, upon invitation of the latter, Jim Baker came on the porch and sat down, while Bill Baker stood near the side of the steps leading to the porch, with one foot on the steps; that dedefendant stood in the doorway, which opened onto the porch; that within a minute or two after the Bakers arrived at defendant's home, Zene Finley and Jess Jordan rode up to a point in front of defendant's home; that greetings were exchanged, and defendant asked the two Bakers about a pistol which came into their possession, whereupon Bill Baker informed defendant that he (Bill Baker) had sold it to a man at the threshing machine; that defendant asked, "What are you going to do about it?" and Bill Baker said. Why, are you going to make us get it?" and the defendant answered,"I am going to have my pistol," whereon Bill Baker said. "By G-d, let's see you make us get it"; that defendant then said "You s____ o____ b____ get out of my yard and stay out, I've told you two or three times to stay out and you are going to do it"; that Jim and Bill Baker then walked out of the yard to the gate; that after leaving the yard Bill Baker said, "I don't think I am any more of a s____ o____ b____ than you are." and with a motion of his hand brushed back his hair, where-upon the defendant reached for his gun, which was On the inside of the door, but which was usually kept in another room, and shot Dill Baker; that after firing the gun, defendant replaced it, and walked around the house; that deceased was removed from the road, placed in a bed at the home of defendant, The deceased was shot through the lower abdomen, through the pelvis, in the upper part of the thigh, and died as a result of these wounds.
Defendant's Evidence.—The evidence in behalf of defendant tended to prove that deceased, on one occasion, stated he was carrying a gun for defendant; that on one occasion deceased said he had been ordered to keep away from the home of defendant, but he was not afraid of defendant and was going back whenever he got ready; that deceased stated before he was killed that he was going to have the defendant's daughter or would kill the defendant; that when the Bakers arrived at the home of defendant the latter ordered them out of the yard and, as deceased turned to leave the yard, he put his hand in his pocket on a gun, and started toward defendant; that the latter took his own gun and, as deceased was approaching, shot him to keep deceased from shooting him; that defendant always kept his gun behind the door-facing, except when there were children around; that immediately after the shooting, all the visitors left, except two girls and one May; that defendant walked out, picked up the deceased, carried him into the yard, laid him in the shade on the edge of the porch, and as they picked him up, he felt a gun in deceased's pocket, took it out and showed it to the girls; that defendant took his gun, emptied the shells from it, and placed the gun in his dresser; that defendant knew the deceased to be a dangerous man; that one Robert Thomas arrived at defendant's home about one hour after the killing, and found a revolver in the top dresser drawer; that he took possession of same with two or three other guns; that there were some shells in the dresser drawer where the pistol was found; that defendant's reputation for being a peaceable, law-abiding citizen was good; that his reputation for truth and veracity was also good.
State's Rebuttal.—The evidence of the state tended to show that one Jordan saw deceased change clothing before going to the home of defendant, and he did not see a revolver in possession of deceased; that Mrs. Jenkins assisted in carrying deceased into the home of defendant, and did not see a pistol about his person.
The defendant then offered evidence tending to prove that after the first trial of this cause Mary Jenkins stated that she had seen a pistol in deceased's pocket at or about the time of the killing.
The instructions, rulings of the court, etc., will be considered in the opinion.
As the appellant is here without any brief, we will examine the motions for a new trial and in arrest of judgment to determine whether he has had a fair trial.
I. The information herein contains all the necessary averments required to properly charge the crime of murder in the first degree. It likewise fully informed defendant as to the charge he was required to meet. Sections 3230 and 3232, R. S. 1919; State v. Laxson (Mo. Sup.) 220 S. W. loc. cit. 886; State v. Taylor (Mo. Sup.) 190 S. W. loc. cit. 332; State v. Conley, 255 Mo. loc. cit. 194, 164 S. W. 193; State v. Clay, 201 Mo. loc. cit. 686, 100 S. W. 439; State v. Privitt, 175 Mo. 207, 75 S. W. 457; State v. Rice, 149 Mo. loc. cit. 466, 51 S. W. 78; State v. Kindred, 148 Mo. loc. cit. 279, 280, 49 S. W. 845.
II. The motion in arrest charges that the verdict is insufficient to support the judgment. It reads as follows:
This contention is without merit and overruled.
III. The court is charged with error in refusing to grant defendant a continuance of the cause.
It appears from the record that the jury was impaneled and defendant announced ready for trial 24 hours before the application for a continuance was filed, and took chances on getting his witness. The court thereupon declined to stop the trial and overruled the application for a continuance. After examining the application, we are satisfied the court committed no error in overruling same, especially as the testimony of the absent witness was simply cumulative, as to the alleged threats of deceased, and as to whether the latter had a pistol when he left home the morning of the...
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