State v. Neal

• Citation: 300 S.W. 1073,318 Mo. 766
• Decision Date: 12 December 1927
• Docket Number: 28300
• Parties: The State v. L. H. Neal, Appellant
• Court: United States State Supreme Court of Missouri

300 S.W. 1073

318 Mo. 766

The State v. L. H. Neal, Appellant

No. 28300

Supreme Court of Missouri

December 12, 1927

Appeal from Wright Circuit Court; Hon. Cornelius H Skinker, Judge.

Affirmed.

Hiett Lamar & Covert for appellant.

(1) A man is not chargeable with malice when there is adequate provocation for his acts or when he is acting wildly or in hot blood. State v. Connor, 252 S.W. 720; State v. Gugin, 147 Mo. 39; 13 R. C. L. 786, par. 91. (2) This case should be reversed on account of the argument of special counsel for the State set out in the bill of exceptions, such argument being highly prejudicial to the defendant, made for the sole purpose of arousing the prejudice of the jury, with no competent testimony to warrant it. State v. Connor, 252 S.W. 271.

North T. Gentry, Attorney-General, and David P Janes, Assistant Attorney-General, for respondent.

(1) These assignments are too indefinite and general to warrant the consideration of this court. They fail to follow the well-defined rule laid down by Sec. 4079, R. S. 1919, Laws 1925, p. 198. State v. Standifer, 289 S.W. 857; State v. Murrell, 289 S.W. 859; State v. Vesper, 289 S.W. 862; State v. Hersh, 296 S.W. 435. (2) Defendant claims that a new trial should have been granted for the reason that new evidence had been discovered. This alleged evidence, as set forth in his motion for new trial and in the supporting affidavits, is to the effect that the rifle that was used by the defendant in this fight, and which is claimed by the State to have been held by him when he was shot by Fletcher, was not produced in evidence and that it would fail to show any marks by shots, thus lending color to defendant's claim that he was unarmed at the time he was being fired upon by Fletcher. This assignment of error is fatally defective for the reason that the affidavits as shown in the record do not allege that the evidence had come to the knowledge of the defendant since the trial; that it was not owing to want of due diligence that it did not come sooner; that it was so material that it would probably produce a different result; neither is there any affidavit on the part of the attorney. State v. Estes & Johnson, 209 Mo. 288; State v. Emmons, 285 Mo. 55.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

The Prosecuting Attorney of Wright County filed a verified information in the circuit court charging that defendant on June 11, 1926, made an assault with intent to kill, on purpose and of malice aforethought, on one Fletcher, by shooting at him with a certain rifle. The jury returned a verdict assessing the punishment at five years' imprisonment in the penitentiary. An appeal was taken from the judgment entered thereon.

The evidence for the State warrants the finding that defendant and William Fletcher resided in Astoria, Wright County, on June 11, 1926, and for some years prior thereto. Defendant ran a general store and was postmaster. Fletcher was the mail carrier. The distance between the store and Fletcher's home was about sixty feet. Two or three weeks prior to June 11, 1926, it seems that defendant had cursed Mrs. Fletcher, later pleading guilty to the charge and paying a fine. The store and the home were located at the intersection of public roads. Fletcher's house was a frame building of three rooms, constructed in the shape of a T, two of which faced south along the east-and-west road, and the third room joined the other two at the center. The yard was enclosed by a fence. A few days prior to June 11, 1926, while Fletcher was feeding his hogs, defendant came up with a Winchester, but said nothing. Later on the same evening while going down a lane, Fletcher met defendant, who cursed and called him opprobrious names. Fletcher refused to reply. At this time defendant had his Winchester rifle. Later the same evening he again met defendant, who continued cursing him. Defendant inquired if Fletcher felt game and stout that evening. Fletcher replied, "You are G d right I do." Defendant then wanted to know if Fletcher desired a match that evening, and Fletcher said that he would match him sometime if nothing else would do. Fletcher stated neither he nor defendant had a gun at that time. That night two shots were fired into his house, one coming from the direction of the mill and the other from the store. Fletcher stated that prior to June 11, 1926, he had never had a difficulty with Doc or Howard Neal, sons of defendant. Doc Neal married the niece of Fletcher and was about twenty-one years of age. Howard Neal was fourteen or fifteen years of age.

On the afternoon of June 11, 1926, about four o'clock, Doc Neal rode a pony at a fast clip up the road, and alighting, went to the field where Fletcher was plowing. He came up the road cursing, desiring to know the whereabouts of Fletcher, and upon seeing him came across the field cursing. Coming to Fletcher he wanted to know what he had against him, calling him a vile name. Fletcher was talking to Sam Wilson. Fletcher, who observed that Doc had been drinking, told him he had nothing against him. With his fist drawn back Doc finally struck at Fletcher, who warded off the blow, hitting him and knocking him down. The fight continued with similar results. Howard Neal, during the fight, came through the field hallooing to his brother to kill him. He had an open knife in his hand, with which he struck at Fletcher as he came up. Fletcher then turned and ran to the house, Doc and Howard following him. He reached the house thirty or forty steps before the boys, grabbed his single-barrel shotgun, loaded it and went to the kitchen door. His sister, Doc's mother-in-law, stood in the door with a baby in her arms, requesting Doc to go away, saying she desired no trouble and he had no business there. Doc cursed her, and threw a rock or clod of dirt, which struck the door facing. Fletcher then stepped around, told Doc to stay back, and that if he did not do so he would hurt him. Doc replied with a vile name, saying, "You are not game enough to shoot me." Fletcher then shot, killing Doc Neal, who died shortly thereafter. Howard Neal, who was in the yard, hied to his father's store about sixty feet away, and almost immediately they emerged together, each with a Winchester rifle, defendant saying, "Shoot his G d heart out." The boy, standing on the store porch, then commenced shooting into the house. Defendant then advanced a little beyond the gate into Fletcher's yard, threw up his gun to shoot at him while in the house, when Fletcher shot through the screen door, hitting defendant, who was standing in Fletcher's front yard. Defendant then retreated out of sight, defendant and Howard shooting into the house and keeping up the bombardment for about an hour. Surmising that Fletcher was killed, Howard advanced to the house and while peeping around the door was shot by Fletcher, dying the next day. It seems that Fletcher, during the bombardment, lay on the floor to escape harm. The bullets went through the walls and glass in the windows of the house, demolishing the mirror in the dresser and the face of the clock and piercing the tea kettle. It seems also that a bullet struck the lamp, spilling the oil on the dresser and setting it afire, damaging it and burning up clothing. The house also caught fire, but was extinguished after the bombardment. Howard Neal, in addition to using the rifle, operated a shotgun. After Howard was shot, the defendant continued shooting into the house for a great length of time. Such other facts as are pertinent will appear later.

I. Under our practice the question of error as to matters of exception must be preserved in a motion for a new trial. Therefore, in considering error, save as to matters found in the record proper, the motion is our guide. The instant motion contains seven assignments of error. The first two assignments complain of the admission of...