State v. McAfee
| Decision Date | 24 November 1908 |
| Citation | 214 Mo. 284,113 S.W. 1092 |
| Parties | STATE v. McAFEE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Wayne County; Joseph J. Williams, Judge.
Charles McAfee was convicted of murder in second degree, and he appeals. Affirmed.
O. L. Munger and W. B. Kennedy, for appellant. Herbert S. Hadley, Atty. Gen., and F. G. Ferris, Asst. Atty. Gen., for the State.
On the 25th day of January, 1908, the prosecuting attorney of Wayne county filed an information in the circuit court of said county, charging the defendant with murder in the first degree for the killing of one J. M. Boatwright, with a loaded pistol, at said county, on the 4th day of July, 1907. He was tried upon said charge on the 19th day of February, 1908, and convicted of murder in the second degree, the verdict of the jury fixing his punishment "at ten years in the penitentiary." On the same day the defendant filed motions for a new trial and in arrest of judgment, which were overruled by the court. Thereafter, on the 22d day of February, 1908, the defendant and his counsel being present, the court, in view of the informality in the verdict respecting the punishment, changed its terms so as to read "at imprisonment in the penitentiary for the term of ten years." The court thereupon rendered its judgment and passed sentence upon the defendant, from which judgment the defendant appeals.
The testimony discloses that on July 4, 1907, there was a picnic at Mill Springs, Wayne county, Mo., which was attended by a large crowd of people. Defendant was early in town that morning, and between 9 and 10 o'clock in the forenoon he appeared at a store in Mill Springs and traded his watch for a revolver. The deceased, J. M. Boatwright, was seen on the picnic grounds that forenoon, apparently somewhat under the influence of liquor, and was making inquiries for defendant, whom he said he wanted to whip. Boatwright was a short man, weighing about 165 pounds, and the defendant was about the same weight, but taller. About 1 o'clock in the afternoon, as defendant was leaning against a lemonade stand in the picnic grounds, Boatwright walked up to him and placed his hand on his shoulder. Some words passed between them, and then both men moved out of the crowd and into the open. There is some divergence in the testimony respecting the words which passed between the two men, and the epithets applied by each to the other, while at the lemonade stand and up to the time the fatal shot was fired. According to witness Elmer E. Boggs, who was within 10 feet of the parties at the time, he saw both come out of the crowd, each man with his hand on the other's shoulder, and heard Boatwright say to defendant that he would "go out of the crowd with him or any other son of a bitch." The defendant said, "Do I understand you to call me a son of a bitch?" Boatwright made no answer, but told defendant to take his hand out of his hip pocket and he would fight him fair. He then proceeded to take off his vest, and while in the act of doing so he was shot by the defendant with a pistol which he drew out of his right hip pocket. After the shot was fired Boatwright fell forward and grabbed at the pistol, and then fell on his back and died. This witness also testified that neither man appeared excited, but cool and self-possessed, and that at the time the fatal shot was fired they were two or three feet apart. Judge Creecy testified that he was within 10 or 15 feet of the men when the trouble commenced. He saw Boatwright motion to defendant, and heard him say: "Come out of the crowd, you damn son of a bitch; I can whip you." Defendant seemed angry, but not excited, and said, "Don't call me that any more." Boatwright then said, "I'll call you anything I want to." The defendant put his hand into his hip pocket, and Boatwright commenced pulling off his vest, saying, "I'll whip you any way, with your hand in there," and applied another ugly epithet to the defendant. Immediately the defendant fired, and Boatwright said, "You have killed me," whereat the defendant said, "If I ain't, G___d d___n you, I can do it." As soon as Boatwright was down, the defendant drew his pistol on him again with both hands, at which time witness Creecy stepped up to the defendant, and said, To this defendant replied, "You stand back and keep your hands off of him or I'll put one in you." Several other witnesses for the state testified much to...
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