State v. Neal
| Decision Date | 12 December 1927 |
| Docket Number | No. 28300.,28300. |
| Citation | 300 S.W. 1073 |
| Parties | STATE v. NEAL. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.
L. H. Neal was convicted of assault with intent to kill, and he appeals. Affirmed.
Hiett, Lamar & Covert, of Houston, for appellant.
North F. Gentry, Atty. Gen., and David P. Janes, Asst. Atty. Gen., for the State.
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 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 60 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 inclosed 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 some time, 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 21 years of age. Howard Neal was 14 or 15 years of age.
On the afternoon of June 11, 1926, about 4 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 Doe 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 30 or 40 steps before the boys, grabbed his single-barrel shotgun, loaded it, and went to the kitchen door. His sister, Doe's mother-in-law, stood in the door with a baby in her arms, requesting Doe 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. Doe 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 60 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 incompetent, irrelevant, and immaterial evidence and of the exclusion of competent, relevant, and material evidence. The third and fourth assignments charge the court erred in giving and refusing certain numbered or lettered instructions. The sixth and seventh assignments complain generally of the argument of counsel for the state to the jury without specification and of the failure of the court to instruct the...
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