State v. Moore
| Decision Date | 11 June 1930 |
| Docket Number | 29801 |
| Citation | 29 S.W.2d 148 |
| Parties | STATE v. MOORE |
| Court | Missouri Supreme Court |
Irwin & Bushman, of Jefferson City, for appellant.
Stratton Shartel, Atty. Gen., and A. M. Meyer, Asst. Atty. Gen., for the State.
An information filed in the circuit court of Morgan county charged the defendant, William B. Moore, with murder in the first degree in shooting and killing one John C. Keim, June 18, 1927. On a trial January 11, 1928, the defendant was found guilty of manslaughter, and his punishment assessed at ten years in the penitentiary. From a judgment upon that verdict he appealed.
The defendant was 41 years of age, a resident of Morgan county and engaged in the business of buying and selling ties and lumber products. He had some dealing with John C. Keim, the deceased, who was in possession of a certain tract of land near a place called Proctor's Store. Just the arrangement they had with each other is not shown. All evidence as to their contract was excluded by the court. It appears that one W. N. Chamberlain was operating a sawmill, sawed ties and other lumber on the tract of land of which Keim was in possession, and the defendant Moore hauled those away. Dispute arose between the defendant Moore and Keim about some slab lumber, which we presume is lumber left of a log after a tie is sawed out. The difficulty which resulted in the killing of Keim by the defendant, Moore, occurred June 18 1927. The two previously had difficulties with each other. Moore testified that on two occasions Keim had assaulted him one time with a club; on each occasion he had to run in order to get out of the way. The state introduced a number of witnesses who testified that threats were made by defendant Moore against the life of Keim. On the other hand, the defendant introduced a number of witnesses who testified that Keim on several occasions had threatened to kill Moore. Defendant also introduced witnesses who swore that Keim's reputation was bad; that he was quarrelsome and hard to get along with.
A pile of slab lumber was on the premises occupied by Keim. The defendant offered evidence to show that Mrs. Keim, wife of the deceased, complained of its presence and wanted it taken away because it harbored rats, but the evidence sufficiently shows that Keim objected to the entry of Moore upon his premises for the purpose of taking away the slab lumber, and that Moore was determined to take it away.
On the morning of June 18, 1927, Moore, with six wagons and teams and six men besides himself, drove to the Keim place for the purpose of hauling away the slab lumber. The defendant also had a revolver in his pocket. He explained that he took it with him that day because he had heard of threats which Keim had made against him. He said also that the pistol was in the pocket of his jumper when he put it on that morning, and it was by a sort of accident that he took it along.
It appears that in reaching the timber which the defendant desired to take away he had to pass through a gate or a gateway near Keim's house. The six teams drove up to the place, the defendant being with the front team. There was a pole across the space through which the defendant would have to drive. Chamberlain had informed Keim earlier that morning that Moore was coming for the timber. Keim wrote out a notice to keep out and affixed it somewhere to the pole, or the gatepost. When Moore arrived, Keim was just inside shoeing a mule. Moore, apparently without saying anything, took down the pole across the way by which he was to drive in, saw the warning paper, and started to read it. He testified that he did not read it; that he did not have time to read it. He had not more than removed the pole when Keim began to throw rocks at him. From description of those rocks they were about as large and as heavy as one could throw and do damage -- about the size of a baseball. Keim threw twice at Moore. That is the testimony of all witnesses who saw it. Moore dodged one of them or it missed him, and another one struck the gatepost behind which he dodged. Keim continued to advance and Moore drew his revolver and fired once, when, as the evidence indicates, Keim was about ten feet away. The bullet struck Keim in the eye and killed him instantly.
I. Appellant assigns error to the introduction of evidence offered by the state to impeach defendant's witness Chamberlain, who was the most important witness for the defendant. On cross-examination the state's attorney asked him if he had not said to Sheriff Otten and T. N. Morris, a few days before the homicide, in talking about threats between Moore and Keim, that many a time he had heard Moore threaten to kill Keim, and that he met Moore one day coming up the road for that purpose and persuaded him out of the notion, and urged him to settle through the courts. Chamberlain denied making such statement. Then the state in rebuttal produced Morris, who testified that Chamberlain did make such remarks in his presence. Sheriff Otten testified to the same thing. This was objected to on the ground that it was a cross-examination and impeachment of those witnesses on matters not material to the issues. The court admitted the evidence, not for the purpose of proving the fact that Moore had made such threats, but for the purpose only of impeaching the testimony of Chamberlain, and the jury was so instructed.
Appellant quotes from Cyc. the test as to whether matter is material,...
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