State v. Mahan
| Decision Date | 31 December 1924 |
| Docket Number | 25676 |
| Parties | STATE v. MAHAN |
| Court | Missouri Supreme Court |
Chas Jackson, of Mountain Grove, and Green, Green & Green, of West Plain, for appellant.
Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty Gen., for the State.
WALKER, J., absent.
In the circuit court of Ozark county the appellant was found guilty of felonious assault. The jury failing to agree on the punishment, the court thereupon fixed the punishment at two years' imprisonment in the state penitentiary.
Mahan was charged with shooting at one William Melton, July 21 1923, with intent to kill said Melton. On that day Mahan was at Gainesville, in Ozark county, as was also Melton; nothing occurred between them at that time. Melton, on horseback, started home. Afterwards the defendant, Mahan, started in the same direction in a Ford automobile, in company with a young woman named Nettie Silvey, who said she was the defendant's sweetheart. The defendant started to take her home, and it was necessary to go near the home of Melton. A short distance from the village of Romance Mahan overtook Melton, drove past him a distance of about 50 yards, then stopped, turned his car out of the road and got out. This was near Melton's home. According to Melton's story he rode by where Mahan stood by his car and Mahan accosted him, saying that he wanted to talk to him; that there was something wrong. Mahan appeared either angry or intoxicated. Melton replied that he would have nothing to say to the defendant. Defendant, with an oath and calling Melton a vile name, stooped over as if to pick up a rock. Melton had passed the car some 20 steps, and was riding towards his home. Defendant, seeming unable to find a stone to throw at Melton, returned to his car and Nettie Silvey handed him a revolver which he leveled at Melton, who, instead of putting his horse to a gallop and getting away, adopted another plan. He said to Mahan: 'Shoot, you s -- o -- a b -- , shoot!' and began to yell for his gun. His wife and daughter were on his porch 60 yards away. He said his purpose was to 'rattle' the defendant, apparently thinking his defiance would afford him better security than a precipitate retreat. The defendant shot five times at Melton with his automatic, two or three of the shots hitting the mare which Melton was riding. Defendant then returned to his car and drove away, and Melton went home. The wife and daughter of Melton, who were on his porch when Mahan returned to his car for his gun, set up a scream instead of getting a gun, evidently creating considerable confusion. Melton and the two women swore that, while he had a shotgun, it was not in sight, but was somewhere in the house and the women did not know where it was. Melton was a justice of the peace at the time, and had caused some feeling against himself on the part of Mahan because of an alleged visit he had made to the neighborhood of Mahan's home for the purpose of hunting a still.
The defendant was a young man, 28 years of age, unmarried. He and Nettie Silvey described the incident in this way: After passing Melton on the road Mahan got out of his car to look at a tire which he thought was flat. As Melton passed him he simply said, 'Hello,' and when Melton got a little further by he commenced to call to his folks on the porch to get his shotgun. The defendant then asked Melton to wait, that he wanted to speak to him. Melton went on, cursed the defendant, told him he would not talk to him and started in a lope, still yelling for his gun. Defendant then got his revolver which was handed him by Miss Silvey, and fired five shots. He saw Melton was getting pretty close to his gun; that his daughter had come out on the porch with it. Defendant claimed that he did not shoot at Melton to hit him, but to keep him from getting his gun; that he had three loads left in his pistol after firing five shots and he could have continued shooting if he wished. He went home and immediately afterwards went to Gainesville and gave himself up to the sheriff. On cross-examination the defendant admitted that Melton had made no demonstration or attempt to assault him, but said Melton was trying to get his gun.
Defendant offered evidence to show that Melton had previously threatened him; introduced three witnesses who swore that Melton had a bad reputation for being 'fussy and quarrelsome.' On cross-examination those witnesses would not say he was 'turbulent,' or 'dangerous,' but that he 'just fit around some.'
In rebuttal the state introduced three witnesses to show that Melton's reputation as a law-abiding citizen was good. Melton himself, being recalled in rebuttal, stated he had never made any threats against the defendant, and that there was never any feeling between them prior to this trouble. On this evidence the defendant was found guilty as stated, and he appealed.
I. Error is assigned to the action of the court in permitting Aud Rose, the sheriff, to testify to a conversation he had with Melton relative to locating a still in the neighborhood of defendant's home. If this was error it was invited by the defendant. Melton was asked on cross-examination by the defendant's attorney if he had not been over in the neighborhood around Mahan's place two or three nights. The sheriff was offered as a witness by the defendant, and was asked if he had had a conversation with Melton in which Melton told him he had been in Mahan's neighborhood one or two nights. On cross-examination the sheriff explained that he called Melton out of his field at the time of the...
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