State v. Marlin

Decision Date04 March 1924
Docket NumberNo. 25210.,25210.
PartiesSTATE v. MARLIN.
CourtMissouri Supreme Court

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Buck Marlin was convicted of manslaughter, and he appeals. Reversed and remanded.

Seth V. Conrad and J. E. Haymes, both of Marshfield, for appellant.

Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.

WALKER, J.

The defendant was charged by information in the circuit court of Webster county with murder in the first degree. Upon a trial to a jury he was convicted of manslaughter and sentenced to nine years imprisonment in the penitentiary. From this judgment he appeals.

Several young men, including the defendant and the deceased, were playing poker in the building of a lighting plant in Seymour, Webster county, on the night of September 28, 1922. After the game had continued until about midnight, when it appear the parties were more or less under the influence of liquor, a heated controversy arose, occasioned by some one having charged the deceased with cheating during the game. The evident disturbance caused by this quarrel resulted in the manager of the lighting plant ordering the young men out of the building. After proceeding a short distance they separated, one Denny and the deceased going in one direction, and the others, except the defendant, in another. The latter lingered in the rear. While they were still within hearing distance of each other one Wommack, according to the defendant's testimony, upon seeing the defendant coming, said to the deceased, "There comes the s____ ______ ____ _______; go at him ! I'm with you." (The making of this statement is denied by Wommack.) Thereupon the deceased threw down his cap, and as he took off his sweater said, "Don't hit me until I get my sweater off." He then pulled out his pocket knife. Denny, who accompanied the deceased when they separated from the others of the party, says he proceeded on his way, and after he had gone some distance he heard a shot fired. Later he was overtaken by the defendant, and Denny asked him if he hit that fellow. Defendant said he had; that he didn't know where he had hit him, but he thought that he shot pretty low. To which he added:

"I may have to look through the bars over that, but I would do the same thing if it was to do over, a fellow coming at me with a knife."

Defendant also said that after the shooting he had gone for a doctor, who refused to comply with his request to accompany him to where the body of the deceased was lying, and that the defendant then "went back, and found the deceased still kicking." After this statement, Denny and the defendant walked along together for a half mile or more, and then separated. Probably immediately before this conversation with Denny and after the killing—the evidence not being clear on this subject—the defendant went to a hotel where his father was stopping, and informed him of the trouble, and requested him to go and get the constable. The defendant did not accompany his father, but was told to go away, but to keep his father informed as to his whereabouts. The father and the constable went to the lighting plant, near which they found the body of the deceased. A sweater and a cap were lying near the body. The constable went away for the purpose of impaneling a coroner's jury. In about half an hour he returned to the place where the body of the deceased was lying, and found the deceased's knife within a few feet of the body. The coroner found a gunshot wound about two inches above the heart of the deceased, and a bullet in the right side between the fifth and sixth ribs.

Defendant's account of the killing is that, when Wommack made the remark heretofore testified to by defendant, the deceased first picked up some rocks, and later, upon pulling off his sweater, took out his knife; that defendant asked the deceased not to bother him, whereupon...

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