State v. McPhearson

• Decision Date: 21 March 1936
• Docket Number: No. 34672.,34672.
• Citation: 92 S.W.2d 129
• Parties: STATE v. McPHEARSON.
• Court: Missouri Supreme Court

92 S.W.2d 129

STATE v. McPHEARSON.

No. 34672.

Supreme Court of Missouri, Division No. 2.

March 21, 1936.

Appeal from Circuit Court, Pemiscot County; James V. Billings, Special Judge.

William McPhearson was convicted of murder in the second degree, and he appeals.

Affirmed.

McKay & Peal, of Caruthersville, for appellant.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.

WESTHUES, Commissioner.

Appellant was charged, by an information filed in the circuit court of Pemiscot county, Mo., with the crime of murder in the first degree for shooting one Lum Mills. Upon a trial he was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of fifty years. From the sentence imposed he appealed.

The sufficiency of the evidence to sustain a conviction was not questioned. The evidence introduced revealed the following state of facts: The deceased, Lum Mills, lived near Bragg City, where he made a livelihood by fishing in and about the drainage ditches. He was shot and instantly killed by one Elmer Driscoll, on Saturday, May 12, 1934. Driscoll testified that appellant had hired him to commit the murder. About two weeks prior to the shooting the deceased had found appellant and deceased's wife about a mile from his house near a drainage ditch, under suspicious circumstances. Deceased compelled appellant, at the point of a shotgun, to go to appellant's home and pay deceased $25 in cash, and exacted a promise from him to give deceased a pair of mules, a set of harness, and some corn. Driscoll testified that thereafter appellant asked him to go with appellant as a witness, stating that he was going to kill deceased. On two different nights Driscoll accompanied appellant to the drainage ditches where deceased was in the habit of fishing at night. On each occasion appellant is alleged to have carried a rifle with which he intended to kill Mills. Driscoll testified that when appellant failed to find Mills on the second journey, he informed Driscoll that he (Driscoll) would have to do the job, for which he would receive a pair of good mules, two hundred bushels of corn, and the privilege of farming forty acres of land. Appellant is alleged to have obtained a pistol for Driscoll and also to have hired a man to work in the place of Driscoll until the murder was committed. This occurred on Monday preceding Saturday, the date of the homicide. On Friday Driscoll went to the home of Mills on the pretense of buying fish. Driscoll did buy 50 cents worth of fish and upon invitation of Mills stayed for dinner. During this visit Driscoll obtained information of where Mills could be located on Saturday. On the next morning Driscoll approached Mills and shot him six times, killing him instantly. All the shots that struck Mills entered the back of the body. No evidence was introduced which would indicate that any ill feeling existed between Driscoll and Mills. Driscoll testified that he had always been on friendly terms with deceased. The only reasons assigned for committing this gruesome crime were that appellant had hired him to do it and also had threatened him with death if he did not carry out the agreement. The state also introduced evidence showing that Driscoll related in detail, in the presence of appellant, the killing and the two visits made by appellant and Driscoll to the drainage ditches for the purpose of shooting the deceased; that thereafter appellant admitted that Driscoll was telling the truth, but denied that he had hired Driscoll. Appellant admitted the difficulty with the deceased, as above detailed. The state offered evidence which corroborated the evidence of Driscoll and which pointed to appellant's guilt.

Appellant has not favored us with a brief. We will dispose of the assignments of error in the motion for new trial which raise questions for our review. Appellant assigned as error the action of the trial court in permitting the prosecuting attorney to amend the information. The record discloses that this amendment was made prior to the time the jury was sworn. Section 3564, R.S.Mo.1929, Mo.St.Ann. § 3564, p. 3169, authorizes the amending of an information, both in form and substance, prior to the time that the jury is sworn.

Appellant next complains because the trial court refused to disqualify the sheriff, as requested by appellant. The trial court heard evidence on this question, and the only showing made was that the sheriff was a material witness in the case. This of itself would not disqualify the sheriff from selecting a jury. Appellant did not testify that the sheriff was prejudiced against him. He did testify that the sheriff had advised him to plead guilty, but that did not prove that the sheriff was prejudiced against appellant or bore any ill will towards him. The trial court did not abuse its discretion when it denied appellant's request. State v. Stewart, 274 Mo. 649, loc.cit. 656, 204 S.W. 10.

In three separate assignments of error appellant urges that the trial court erred in not excusing three jurors who were challenged by appellant on the ground that they had formed an opinion. The evidence heard with reference to the qualification of these jurors disclosed that each had formed an opinion which was based on rumors they had heard and a general discussion of the case. Each testified that it was just a casual opinion that he had formed which he could and would disregard if selected as a juror to try appellant. It was not shown that any of these jurors had expressed an opinion with reference to the case. We do not deem a sufficient showing to have been made which would have compelled the trial court to sustain the challenges made.

Appellant next...