State v. Mitchell

• Decision Date: 05 June 1924
• Docket Number: 25261
• Citation: 262 S.W. 717
• Parties: STATE v. MITCHELL
• Court: Missouri Supreme Court

262 S.W. 717

STATE v. MITCHELL

No. 25261

Supreme Court of Missouri, Second Division

June 5, 1924

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen for the State.

OPINION

Statement.

RAILEY C.

By an information filed in the circuit court of Texas county, Mo on April 5, 1922, the appellant, Carl Mitchell, and his brother, Harrison Mitchell, were jointly charged with murder in the second degree, in that they shot and killed one Patrick C. King in Texas county aforesaid. After the granting of a severance, the appellant herein was awarded a change of venue, and said cause tried in Phelps county, Mo., before a jury. On June 27, 1923, the following verdict was returned:

'We, the jury, find the defendant guilty of murder in the second degree, as charged in the information, and assess his punishment at imprisonment in the state penitentiary for a term of twenty years.

'John Fleming, Foreman.'

Appellant, in due time, filed motions for a new trial and in arrest of judgment, both of which were overruled. Thereafter, on June 27, 1923, the court passed sentence, pronounced judgment upon appellant in conformity with the terms of said verdict, and granted him an appeal to this court.

Upon examination of the record we find that the statement of facts prepared by Assistant Attorney General Davis is substantially correct, and hereby adopt the same, as follows:

'On November 30, 1921, Pat C. King was shot and killed in his store and post office building at Edanville, in Texas county, Mo. On the day that he was killed Norvil Miller, of that town, held a public sale of horses and other personal property on a vacant lot just to the rear of King's store. A large number of the men attending the sale became intoxicated during the day, several quarrels ensued, and there was much profanity and obscenity near the store. According to the state's evidence, deceased and his wife tried to get the defendant's brother, Harrison Mitchell, who was constable of Boone township, in Texas county, to stop the peace disturbances. He told them that he was without authority to do so. At one time the deceased tried to get those participating in the quarrels to move away from the post office. Defendant, Carl Mitchell, thereupon replied that they would go clear off in the bottom if he would. At another time when some one attempted to get the defendant to go home he stated that he intended to stay, and if there was a gap laid down he intended to jump into it.

'In the late afternoon the deceased ordered the persons in the store to vacate, as he intended to close it. All left the store, including King's wife, who carried her small baby. She attempted to lock the front door to the store while holding the baby in one arm. Her husband took the baby. It cried, and she told him to let her have it, as he was huting it. Harrison Mitchell then seized the deceased by the collar, and pushed him backwards into the store. Some of the witnesses testified that Mitchell told deceased at that time that he was constable, and to consider himself under arrest. Others said that no such words were spoken. When the two men had gotten well within the store building the deceased attempted to remove his pistol from his pocket, and in so doing it fell to the floor. John Haley separated the two men and picked up the pistol. Harrison Mitchell then seized Haley by the throat, told him to consider himself under arrest, and to give up the pistol. Haley refused to do so, and threw the pistol in the direction of the place from which he had obtained it. Defendant and his brother then walked out of the store, but immediately returned, accompanied by Willie Buckner. Harrison Mitchell then said that he was going to take deceased out dead or alive. Deceased at that time was behind one of the counters in the store, and he told Mitchell not to come behind the counter. They then both drew their pistols and shot at each other, Mithcell shooting first. Defendant later fired one or two shots. Three bullets penetrated the body of the deceased, any one of which alone would have produced death. He died within a few minutes after being shot.

'Defendant testified that he saw his brother and deceased scuffling into the store, and that his brother then came to the door, and said to him and to Bill Buckner, 'Come in here and help put Pat King and John Haley under arrest.' Harrison then tried to take the pistol away from John Haley, but Haley threw it to the deceased. Deceased picked up the pistol and began shooting at Harrison Mitchell. After he shot twice defenda...