State v. McCarver

Decision Date06 March 1906
Citation92 S.W. 684,194 Mo. 717
PartiesSTATE v. McCARVER.
CourtMissouri Supreme Court

On a prosecution for murder, it appeared that deceased, at the time of the killing, was accompanied by his uncle, and there was evidence tending to show a conversation between them before the killing showing a design against defendant. The court instructed that defendant, if he had reasonable cause to apprehend a design on the part of deceased to take his life, and that to avert such danger he shot, he should be acquitted on the ground of self-defense, and in another instruction stated that any threats made by either the deceased or his uncle against defendant should be considered in arriving at a verdict. Held, that the instructions were not erroneous on the theory that they did not embrace the right of defendant to defend against both deceased and his uncle.

9. SAME—MURDER IN THE FIRST DEGREE.

On a prosecution for murder, the court instructed that if defendant shot deceased, and at the time or before the shot was fired defendant had formed the willful, premeditated, and deliberate design or purpose to take the life of deceased, and that the shot was fired in furtherance of the purpose and without any justifiable cause or legal excuse, defendant should be found guilty of murder in the first degree. Held, that the instruction properly presented the law.

Appeal from Circuit Court, St. Francois County; Samuel Davis, Special Judge.

O. P. McCarver was convicted of murder in the first degree, and he appeals. Affirmed.

W. S. Anthony, J. A. Abernathy, and Jasper N. Burks, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, P. J.

On November 16, 1903, O. P. McCarver was indicted by the grand jury of St. Francois county for murder in the first degree for having, at said county, on the 14th day of November, 1903, shot and killed with a pistol, one Harry Lett. Thereafter, at the August term, 1904, of said court, defendant was put upon his trial before the court and jury, found guilty of the offense charged, and his punishment assessed at death. Defendant's motions for new trial and in arrest having been overruled, he appeals.

After defendant's arraignment and his plea of not guilty were entered of record, he made application for a change of venue of said cause on account of the prejudice of the judge of the St. Francois county circuit court against him. The application was sustained, and Hon. Samuel Davis, judge of the Fifteenth circuit, was called in by the judge of the St. Francois circuit court to try the case. After a panel of 40 men had been qualified to sit as jurors upon the trial of the cause, the court discharged them all on account of alleged misconduct of which he became satisfied. At the same term, however, another panel of 40 qualified jurors were summoned, from which 12 were selected to act as jurors upon the trial of the case, which was then entered upon. The result was a mistrial. Defendant was again put upon his trial at the August term, 1904, of said court and, as before stated, found guilty of murder in the first degree as charged in the indictment. The homicide was committed at Farmington, in a saloon of which Bentley & Ryan were proprietors, about 10 o'clock on Saturday evening, November 14, 1903. Until a short time prior to the shooting, deceased had been employed in said saloon. Defendant, at the time of the difficulty, was the proprietor of another saloon in said town. A few minutes before the shooting occurred, deceased came into the saloon with a pitcher of water which he set down behind the bar. The saloon faced south, and the bar, which was 20 feet long, was on the east side. At the end of the bar was an ice chest, and behind that was the side or east door. After the deceased had put the pitcher of water behind the bar, he walked around the bar and out the front door. After he went out defendant said, "Harry (meaning deceased) is a good boy, but he has a brother that is a God damn son of a bitch." After walking a short distance on the street deceased met his uncle Leo Lett, and invited him to go and take a cigar with him. Deceased and his uncle then turned and walked back to the Bentley & Ryan saloon, deceased having been absent about 10 minutes. Leo Lett and deceased walked in the front door, passed by defendant and his friends, and on to the extreme other end of the bar, and deceased called for and purchased a cigar for himself and one for his uncle. Defendant then invited all present to take a drink with him; some did so, but deceased and his uncle declined with thanks the uncle saying that he had just had a cigar with Harry. Defendant said, "You think you are too damn good to drink with me." Defendant made the remark again, and added thereto, "Harry, you are a God damn son of a bitch." Deceased replied, "I am no more of a son of a bitch than you are." Defendant then applied a vile epithet to deceased which is too vulgar to be reproduced. To which deceased retorted, "Same to you." At the time of using these words defendant stepped up towards deceased, drew his pistol, and shot deceased in the neck. Deceased had turned and was then facing defendant, with a lighted cigar in his hand, and his left elbow leaning on the bar. The state's evidence differed as to the position of his right hand, some of the witnesses saying that the cigar was in his right hand, and others saying that his right hand was hanging down by his side. Deceased and defendant were 10 or 12 feet apart, and facing each other. Just prior to the firing of the pistol, deceased's uncle (Leo Lett) stepped up and said to deceased, "Harry, let's go home, don't have any trouble." Some of the witnesses testified that after the shooting, defendant walked out the front door and said, "I don't allow no man to call me a * * * (repeating the same epithet applied by him to deceased) without I kill him." As soon as the shot was fired, deceased fell to the floor, and the bartender and Duke Powell took off his coat and overcoat, and placed him on a cot. While examining these coats, and while taking off his pants, no weapons of any kind were found on deceased. A physician, Dr. Fleming, was called who, after making an examination of deceased's wound in the saloon, had him taken to the Baptist Sanitarium, where he died the next day (Sunday) at five p. m. as a result of this gunshot wound.

The defendant's evidence tended to prove that defendant and deceased were both drinking at Bentley & Ryan's saloon, and that deceased left the saloon after bringing a pitcher of water, and was gone perhaps half an hour. That George Gordon heard deceased and Leo Lett talking out in front of the saloon, at which time deceased asked Leo if he got it, and Leo replied. "Yes, and a damn good one too." Deceased then asked his uncle to stand behind him, and they would go in, and he would do the rest. That deceased pointed out defendant through the glass window and said, "He is in there, setting them up." That at that time defendant and several others were standing at the bar near the front end of the saloon. Another witness, Jesse Biggs, who claimed to hear this conversation, said that deceased asked Leo if he got that pistol, to which Leo replied, "Yes, and a damn good one too." Deceased then said "There he is in the saloon; he is pretty drunk now, and now will be our time to get him." That deceased and his uncle walked by the other persons standing at the bar, called for, and lighted their cigars. Defendant then told the bartender to give them a drink, but the bartender shook his head. That defendant again invited them to drink, but Leo Lett declined, saying, "I have just had a cigar with Harry." That deceased said, "No, God damn you, I am not going to drink with you, you have been acting a God damn fool around here all night." That Leo Lett tried to slip a pistol into the right hand of deceased at that time, and Arthur Bodell called out, "Look, Pink (defendant), Lett has got a gun." Defendant fired one shot, and Leo Lett ran behind the ice chest with a pistol in his right hand. That at the time of the shooting, deceased was standing with a cigar in his left hand, his...

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    • United States
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    ...by the existence or the establishment of a criminal court within any county composing a part or all of his circuit. State v. McCarver, 194 Mo. 717, 92 S. W. 684; State v. Gordon, 196 Mo. 185, 95 S. W. 420. In the former case, on pages 736 and 737 of 194 Mo., page 689 of 92 S. W., Judge Burg......
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