State v. Maddox
| Decision Date | 17 November 1936 |
| Docket Number | No. 34716.,34716. |
| Court | Missouri Supreme Court |
| Parties | STATE v. MADDOX. |
Appeal from Circuit Court, Saline County; Charles Lyons, Judge.
Harry Maddox was convicted of second-degree murder, and he appeals.
Reversed and remanded for new trial.
A. Lamkin James and Louis J. Rasse, both of Marshall, for appellant.
Roy McKittrick, Atty. Gen., and Drake Watson, Asst. Atty. Gen., for the State.
In the circuit court of Saline county, Mo., the appellant was convicted of second-degree murder and his punishment assessed at twenty-five years' imprisonment in the state penitentiary. From that judgment and sentence he has duly appealed to this court.
The appellant is a white man, and the deceased, Lester Edward Thompson, was a negro. About 11:30 p. m., of July 22, 1934, the appellant and Abbott Cherry returned from Sedalia to Marshall, Mo. They got out of an automobile on the square in Marshall and started in a north-westerly direction to their respective homes. In going to their homes they went through a negro settlement. While proceeding through this settlement a dog darted out at appellant and he kicked it. At this point, Evon Campbell, a negro, who had been sitting in the yard, jumped up and started toward appellant and his companion and stated no one could kick his dog. After the negro and appellant called each other vile names, the negro went back into the yard and picked up a chair, and after some more cursing he put the chair down and picked up a Coco-Cola bottle (the appellant claims it was a gun) and marched behind the appellant and his companion for some distance calling them vile names. The negro returned to the house where the trouble started, and the appellant and his companion went to their respective homes.
After the appellant arrived at his home, he got his shotgun and returned to the vicinity where he had the difficulty in regard to the dog. He met the deceased and asked him who lived in the house where the dog incident occurred. The deceased stated, "I ain't telling you nothing," to which the appellant replied, "You damn niggers think you are smart." The deceased then cursed the appellant, and after some cursing and scuffling the appellant shot the deceased and from the wounds of the shot he died the next day. The appellant pleaded self-defense.
The appellant assigns as error the admission of the testimony of Marvin Hayes offered in rebuttal on behalf of the state. This witness testified that between 11:30 and 12 o'clock on the night of the fatal shooting he saw the appellant some distance from the scene of the tragedy and had a difficulty with the appellant. The witness stated that the appellant said, This incident happened prior to the time the appellant got into the difficulty with Evon Campbell in regard to the appellant kicking the dog. Witness Hayes went on to his home and was not present at the time the deceased was shot, neither was deceased present at the time of this incident.
The appellant contends that this testimony is not in rebuttal and should not have been introduced to rebut the appellant's testimony. We have carefully searched the record and agree that this testimony did not rebut the testimony of the appellant. It is a well-recognized principle that the order of proof is within the discretion of the trial court, and evidence admitted out of order is not reversible error unless it appears that the trial court abused its discretion. State v. Mason, 322 Mo. 194, 14 S.W.(2d) 611; State v. Weiss (Mo.Sup.) 219 S.W. 368. We are unable to say from the record that the trial court abused its discretion in admitting this testimony out of order, and therefore rule this contention against the appellant.
The appellant next contends that the admission of this testimony was prejudicial error because the difficulty with the witness Hayes was prior to the altercation that the appellant had with the deceased, and had no connection whatever with the fatal shooting of the deceased. Witness Hayes was not present when the deceased was shot about an hour later.
In the case of State v. Palmer, 281 Mo. 525, 220...
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State v. Hermann
...inadmissible altercations between a defendant and a third person, such as State v. Palmer, 281 Mo. 525, 220 S.W. 680, and State v. Maddox, 339 Mo. 840, 98 S.W.2d 535. One of these two incidents, of which complaint is made, was that defendant came running toward Cecil, when he cut across the......
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State v. Brotherton, 43418
...and ejector. Defendant's contention is that these exhibits were not connected with the crime nor with defendant, citing State v. Maddox, 339 Mo. 840, 98 S.W.2d 535; State v. Darling, 202 Mo. 150, 100 S.W. 631; State v. Swain, 68 Mo. 605. These cases did not involve exhibits and are not in p......
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State v. Hagerman
...prejudicially err in excluding her version and description of that event. State v. Conway, 348 Mo. 580, 154 S.W.2d 128; State v. Maddox, 339 Mo. 840, 98 S.W.2d 535; State v. Stallings, 334 Mo. 1, 64 S.W.2d 643; State v. Nelson, 166 Mo. 191, 65 S.W. 749. It is urged that the court erred in n......