State v. Mitchell

• Decision Date: 11 June 1923
• Docket Number: No. 24210.,24210.
• Citation: 252 S.W. 383
• Parties: STATE v. MITCHELL.
• Court: Missouri Supreme Court

252 S.W. 383

STATE v. MITCHELL.

No. 24210.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Harrison Mitchell was convicted of murder in the second degree, and appeals. Affirmed.

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

Statement.

RAILEY, C.

On April 5, 1922, there was filed in the office of the clerk of the circuit court of Texas county, Mo., an information by the prosecuting attorney, verified under his oath of office, in which he charged the defendants Harrison Mitchell and Earl Mitchell with murder in the second degree, in that they feloniously shot and killed Patrick C. King, in the county and state aforesaid, on November 30, 1921.

Said defendants were duly arraigned, and each entered a plea of not guilty. Thereafter said defendants asked for a severance which was granted, and the state elected to try Harrison Mitchell, who, being arraigned, entered his plea of not guilty. The case was tried before a jury, and on April 26, 1922, the jury returned into court the following verdict:

"We, the jury, find the defendant guilty a murder in the second degree, as charged in the information, and we assess his punishment in the state penitentiary for a term of ten years.

                                    "K. N. Salyer, Foreman."
                

The defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and thereafter, on April 27, 1922, the court rendered judgment, passed sentence upon appellant in conformity to the terms of said verdict, and thereafter granted him an appeal to this court.

The evidence, as shown by the record, is" substantially as follows:

Patrick C. King was shot and killed November 30, 1921, at the town of Edonvale in Texas county, Mo. At the time of his death he was the owner of a store in that town. The defendant was the constable of the township in which Edonvale is located. On the day of the killing one Norville Miller held a public sale of horses and other property on a lot in the rear of the deceased's store. Some of the persons attending the sale were intoxicated. There was considerable quarreling and some profane and indecent language used by some of the persons attending the sale. Late in the afternoon an altercation ensued between the defendant and the deceased. The defendant's brother, Carl Mitchell, and the deceased's cousin, John Haley, became involved in it. Defendant was shot and wounded and the deceased received three shots which proved fatal. The theory of the defense is that the defendant and his brother were trying to effect the arrest of the deceased for the commission of a misdemeanor, and that it became necessary in order to save the defendant from death or great bodily harm from his brother, Carl Mitchell, to kill the deceased. The state's contention is that the deceased had not committed an offense, that the defendant provoked the difficulty and shot the deceased.

The evidence for the state tended to prove that immediately prior to the shooting the deceased, his wife, and others were in his store, and that the deceased told them to leave the store as he intended to close it; that there had been several disturbances in the road or street in front of the store; and that he had several times attempted to get the disturbers to disperse. The deceased told his wife to take the baby, go outside and close the door, so that he could put away the money. Mrs. King took the baby and went out on the porch. She saw the defendant on the porch and naked him to keep the disturbers quiet or to order them away. He told her that he had no right to do so. The deceased came out and ordered the disturbers away. His wife started to lock the door and the deceased took the baby by one arm. She became frightened and grabbed the baby. The defendant seized her husband. Hex husband backed into the store while being held by the defendant, smiling, and saying: "Best leave me alone; I don't want to have any trouble with you." When the deceased and the defendant got to the middle of the store, the deceased attempted to get his pistol out of his pocket, and it fell to the floor. John Haley separated the men and picked up the pistol. The defendant asked for it, but Haley refused to give it to him. Haley's father told him to throw it down, which he did. An altercation then occurred between the defendant and Haley, after which the defendant went to the store door and commanded Willis Buckner and Carl Mitchell to help him arrest the deceased. The defendant told them to take him out dead or alive. The defendant then fired two shots at the deceased, and the deceased fired three at him. The last shot fired by the deceased hit the defendant. Then Carl Mitchell fired two shots at the deceased, both taking effect in his chest. Both of the Mitchells and the deceased were drinking. After they had gotten inside the store, the defendant said that he would arrest the deceased. He said something at the door about being a constable. The first shot that was fired was by defendant, and it hit the deceased.

The defendant's evidence was as follows: Deceased and his wife had a fight on the porch, slapped at one another. The defendant took the deceased's baby away from him and gave it to deceased's wife. He then told the deceased to consider himself under arrest. Deceased than pulled his pistol out of his front pocket, and the defendant grabbed him by his arms, and deceased pulled him into the store. John Haley separated the two and said to the defendant, "You can't arrest any one that has a damn bit of Haley blood in them." Haley picked up the deceased's gun which had fallen to the floor. The defendant then called for Willis Buckner and Carl Mitchell to help arrest Haley and the deceased. Haley drew deceased's pistol, and said, "I will shoot your G____ d____ brains out." Defendant seized Haley, and they scuffled until Haley passed the gun on the counter to the deceased. The deceased then immediately shot the defendant. While the defendant was scuffling with Haley, his brother Carl took his pistol from his pocket, and after the deceased had shot the defendant Carl Mitchell shot the deceased three times. The defendant testified that he did no shooting. His brother Carl admitted that he had done all the shooting and said that the defendant did not shoot; that defendant did not have a pistol; and that the only shots fired were those by the deceased and by Carl Mitchell.

In rebuttal the prosecution introduced evidence tending to prove that the defendant and his brother bore a bad reputation for truth and veracity and morality. The defendant introduced testimony tending to show that his and his brother's reputation for truth and veracity and morality were good.

Opinion.

The appellant has filed no brief in this court and we have accordingly read the transcript and proceedings herein carefully, to pass upon those questions presented for review, in the motions for a new trial and in arrest of judgment.

I. While the motion in arrest of judgment challenges the sufficiency of the information, we find, on examination of same, that it properly charges appellant with murder in the second degree, and is sufficient; as to both form and substance. State v. Wilson (Mo. Sup.) 231 S. W. 596, 599, and cases cited; State v. Taylor (Mo. Sup.) 190 S. W, loc. cit. 332; State v. Conley, 255 Mo. 196, 164 S. W. 196; State v. Clay, 201 Mo. loc. cit. 681, 100 S. W. 439; State v. Privitt, 175 Mo. 223, 224, 75 S. W. 457; State v. Schieller, 130 Mo. loc. cit. 515, 32 S. W. 976. The information charges murder in the second degree, by omitting therefrom "deliberation."

II. The demurrer to the evidence interposed by appellant, at the conclusion of the case, was properly overruled, as there was substantial evidence before the jury as to defendant's guilt. State v. Jackson, 283 Mo. loc. cit. 24, 222 S. W. loc. cit. 748, and cases cited.

III. In a transcript containing more than 400 pages of testimony, we have only found one Instance where a serious objection was overruled, and that relates to the statement of Carl Mitchell, made on the porch of deceased's place of business, a few minutes before the shooting. George Skid-more was examined in chief as a witness for appellant, and on cross-examination was asked if he heard some one ask Carl Mitchell to go home, and heard Carl say he wasn't going home; "that he was waiting for a gap to be laid down, and if there was he was going to jump into the middle of it." Over the objection of defendant, said witness answered in the affirmative. The objection made was to the effect that defendant was not present, but no evidence was offered to that effect. The further objection was made, that no concerted action had been shown between appellant and Carl Mitchell. The latter was...