State v. Majors

• Decision Date: 18 February 1922
• Docket Number: No. 23025.,23025.
• Citation: 237 S.W. 486
• Parties: STATE v. MAJORS.
• Court: Missouri Supreme Court

237 S.W. 486

STATE v. MAJORS.

No. 23025.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Ray Majors, alias Harry Cassidy, was convicted of murder in the first degree, and appeals. Reversed and remanded for new trial.

Convicted of murder in the first degree, defendant appeals. By indictment of a grand jury, returned December 10, 1919, he was charged with the murder of Frank Gardner in the early morning of September 5, 1919. He complains: First, that the indictment was not certified as a true bill by the foreman of the grand jury, and was therefore vulnerable upon his motion in arrest of judgment; and, second, that the court erred in refusing to give the jury, at his request, the following instructions:

"(B) The court instructs the jury that if you find and believe from the evidence that the shot that killed Frank Gardner was not fired by the defendant, or by some one with whom he was acting in concert, if any, then you must find the defendant not guilty. (Refused.)

"(C) The court instructs the jury that if you find and believe from the evidence in this case that Frank Gardner was killed by a shot fired from a revolver by one Richard Wade, or if you are unable to determine from the evidence beyond a reasonable doubt that said shot was not fired by said Richard Wade, then you must find the defendant not guilty, unless you further find and believe from the evidence beyond a reasonable doubt that the defendant acted in concert with the said Wade to do an unlawful act, and that the death of the said Frank Gardner happened and was occasioned by the doing or attempting to do such unlawful act, if any. (Refused.)"

Appellant offered no testimony. The evidence on the part of the state, among other things, tended to show that appellant, his brother Walter Majors, and one Edward C. Adams, about 2 o'clock a. m. of the night of the homicide, went to certain rooms used for gambling purposes on the third floor of a building, known as the Schutte Building at 1209 Grand avenue, Kansas City, Mo.; that said Schutte Building fronts west; that said rooms were on the south side of said building, and consisted of an anteroom and two others called the cardroom and barroom, respectively; that there was a door opening from the anteroom into the cardroom on the east and that from the cardroom there was a double-door entrance on the east into the barroom, and that from the barroom there was an exit into a toilet and thence into the hall. When appellant and his companions arrived there were several card players and gamblers engaged in games at two card tables in the cardroom and two or three persons in the room not thus engaged, including one Richard Wade, who was sitting against the east wall or the partition, separating the cardroom from the barroom. There was a doorkeeper or lookout by the name of Judd, who ordinarily remained in the anteroom, and was on duty at the time. Appellant and his brother entered the cardroom through the anteroom unannounced, and passed to a position between the two card tables and stopped, standing, whereupon the said Wade drew a revolver, covered appellant and his brother, commanded them not to move, and still covering them, passed to the door, opening from the anteroom, and closed and locked same, and then with his revolver still drawn backed eastwardly toward the double doors opening into the barroom. These doors were open, and as he reached the doorway he was commanded by Adams, one of the companions of appellant, who apparently had entered the barroom by way of the toilet, to hold up his hands, whereupon Wade and Adams engaged in a pistol duel. This occurred in the barroom. Wade took a position on the north side of said room, about 15 feet east of the west wall near the end of the bar, which extended along the north side. Adams took a position in the southwest corner of said room near a pool table. Wade fired in a southwesterly direction at Adams, and Adams fired northeasterly at Wade. Both crouched and used such protection as the bar and the pool table would afford them. The deceased was sitting at the card table on the south side of the cardroom, somewhat west of the direction of the shots fired by Wade at Adams.

There was testimony that during this fight Adams backed through the double door from the barroom into the cardroom firing eastwardly at Wade. While the fight was in progress the card players and other occupants of the cardroom sought protection in various ways—they remained seated, stood, attempted to get out of the room, or took refuge under the tables as prompted by instinct. It appears that the deceased remained sitting or standing at the card table on the south side of the cardroom and about the time the melee was over received a fatal wound, the ball penetrating his left forearm and side between the lower rib and hip bone.

There was testimony that shots were fired from the anteroom and various witnesses said that they saw a revolver protruding through a crack in the door leading to the anteroom and fired toward the deceased, whose left side was exposed to that direction.

Wade testified that he heard scuffling in the anteroom immediately after appellant and his brother had come into the cardroom, and that he saw some one in the anteroom attempting to draw a revolver, and that it was this circumstance that caused him to cover appellant and his brother with his revolver and close and lock the anteroom door, and that the person who attempted thus to draw his revolver was some one other than the appellant and his brother. There was testimony that appellant had opened the door leading to the anteroom from the Cardroom, after it had been locked by witness Wade, but the testimony was not clear as to the time.

There was some testimony from which it might be inferred that appellant was in the anteroom about the time of the shooting from that quarter, and at the time deceased was hit. There was other testimony justifying the inference that appellant did not leave the cardroom, but, on the contrary, remained there, and aided Adams in...