State v. Nevils

• Decision Date: 10 June 1932
• Docket Number: No. 31786.,31786.
• Citation: 51 S.W.2d 47
• Parties: THE STATE v. JAMES NEVILS, Appellant.
• Court: Missouri Supreme Court

51 S.W.2d 47

THE STATE v. JAMES NEVILS, Appellant.

No. 31786.

Supreme Court of Missouri, Division 2.

June 10, 1932.

Appeal from Oregon Circuit Court. — Hon. E.M. Dearing, Judge.

AFFIRMED.

E.P. Dorris, Homer Rinehart and C.H. Jackson for appellant.

The defendant claims that Instruction 2 was improper, but since defendant was not convicted of murder in the second degree, the defendant may be in no position to complain; and defendant submits that Instruction 3 is erroneous and not warranted in this case, and fails to properly instruct the jury. State v. Malone, 39 S.W. (2d) 786. Instruction 5, given in behalf of the State, was error in that it was a direct comment on the evidence. Said instruction informs that the defendant was, on the 26th day of September, 1930, the duly appointed and acting constable of Willow Springs township, in Howell County, Missouri, and on said day he had in his possession a warrant issued by a justice of the peace of Texas County, and that said warrant was indorsed by a Justice of the Peace of Howell County, and that such warrant authorized the defendant to arrest one Charles Coburn, if found in Howell County, and to use all force that may be necessary to arrest said party, even to the taking of the life of said Coburn. Then said statement of facts and evidence is followed by the word, "however." Then said instruction states that before the defendant would be authorized by said warrant to shoot into the automobile of Bus Bolerjack, it was the duty of the defendant to exercise the care and caution which would be exercised by a reasonably careful and prudent man under similar circumstances to ascertain whether the man in and driving said automobile was Coburn, and if the jury believe from the evidence beyond a reasonable doubt that the defendant did not exercise such care and caution and did carelessly and recklessly, without making an investigation which would have been made by a careful and prudent man under similar circumstances, did carelessly and recklessly shoot into said automobile with a forty-five calibre automatic pistol, and did wound and kill said Bus Bolerjack, then the jury should convict the defendant of manslaughter. This instruction is erroneous and prejudicial to the rights of the defendant. State v. Melton, 33 S.W. (2d) 894; State v. Millin, 300 S.W. 694; State v. Baublits, 27 S.W. (2d) 16. The court permitted error in permitting witness J.L. Broyles to testify as to a general conversation with defendant the day before the shooting, said conversation being about stopping automobiles and the position of officers and what he would do. His testimony was prejudicial and erroneously admitted. State v. Todd, 194 Mo. 377. The court erred in not excusing jurors Sherrel and Fry for the reason that they stated in their voir dire examination that they had formed expressed opinions upon the guilt or innocence of defendant. Sec. 3671, R.S. 1929; State v. Foley, 144 Mo. 601; State v. Culler, 82 Mo. 623; State v. Hultz, 106 Mo. 41.

Stratton Shartel, Attorney-General, and Silas E. Garner, Special Assistant Attorney-General, for respondent.

Defendant attacks Instruction 5 averring that the instruction attempts to submit the issue of manslaughter to the jury on the theory of culpable negligence and in so doing failed to properly define culpable negligence, in that the element of carelessness and recklessness incompatible with a proper regard for human life is left out. We think there is no merit in the contention. Sec. 3983, R.S. 1929; State v. Mull, 318 Mo. 647, 300 S.W. 511; State v. Millin, 300 S.W. 694.

FITZSIMMONS, C.

Defendant appeals from a verdict and sentence of the Circuit Court of Oregon County, Missouri, finding him guilty of manslaughter and fixing his punishment at five years in the penitentiary. He was charged with murder in the second degree by information filed in the Circuit Court of Howell County. But appellant took a change of venue, and when the case was called for trial in Oregon County, he disqualified the regular judge of the circuit. Honorable E.M. DEARING was then called from another circuit to preside at the trial.

At the time of the offense, September 26, 1930, appellant was constable of Willow Springs township in Howell County, and he was on the outskirts of Mountain View, in that county, looking for a man named Coburn for whom a warrant charging a felony had been issued in Texas County. The man killed was Bus Bolerjack, who, about eight o'clock in the evening of September 26, 1930, was driving his two-door Chevrolet sedan from Mountain View to his home at Cabool, in Texas County. Bolerjack had with him his wife, Ruth Bolerjack, and his cousin, Edna James. That afternoon they had attended the funeral of Bolerjack's grandmother in Mountain View. With appellant, at the time of the shooting, were Mel Vollmer, a deputy constable at Cabool, and W.H. Booker, a city marshal of Cabool. These Texas County officers had brought with them the warrant for the arrest of Coburn, had it duly endorsed by a Howell County justice of the peace and had enlisted the aid of appellant and other Howell County officers in the search for Coburn.

United States Highway No. 60 skirts Mountain View, but what is called the old highway runs into the town, and, near its outer edge, the two roads meet. At the small angle junction was a filling station, and there the three officers, appellant, Constable Nevils of Willow Springs, and Deputy Constable Vollmer and City Marshal Booker, both of Cabool, parked their car. They planned to stop automobiles coming out of Mountain View and to search for Coburn, the accused. He was supposed to be riding in a Ford coupe. They had scarcely stopped their car when they saw the headlights of another car coming out of Mountain View along the old road toward Highway 60. This later proved to be Bolerjack's Chevrolet coach. Vollmer and Booker, testifying for the State, stated that they remained in their car until after the shooting, and that appellant Nevils got out, carrying a searchlight in his left hand and his 45 calibre automatic Colt's pistol in his right hand. Appellant admitted that he left the automobile, carrying the searchlight and pistol, and walked into the old highway to halt the on-coming car. But he also testified that Vollmer and Booker stepped from their car and took their stand upon higher ground near the apex of the angular junction of the highways.

Mrs. Bolerjack and Mrs. James were in the back seat of the Chevrolet coach which Bus Bolerjack was driving. They testified that as the car approached U.S. Highway 60, along the old road, a man stepped into the road, in the path of the car, flashed a light and almost at the same moment began shooting. He fired four or five shots. One pierced the radiator, another the right-hand door, a third the right rear window frame and fourth struck the hub of the right rear wheel. The man with the pistol was so close that Bolerjack swerved the car to avoid hitting him. The women thought that they were about to be held up and they hid their rings in their shoes. Bolerjack stopped his car and appellant Nevils, whom the women identified as the man in the road who had done the shooting, opened the left-hand door near Bolerjack, the driver, and ordered the inmates to stick up their hands. They did not obey and appellant said: "I said stick 'em up. I guess you will stop the next time any one tries to stop you." Vollmer and Booker then approached the car. They identified the Bolerjacks and Mrs. James, whom they knew from Cabool, and informed appellant that he had stopped the wrong persons. Appellant then ordered the Bolerjacks to drive on. But Bus Bolerjack fell fainting in his seat in the car and was carried back to the home of his father in Mountain View. He had a bullet wound in his right side near the hip. The course of the bullet was through the bowels to a lodging place near the left hip. Bolerjack died from the wound at a hospital in Springfield, Missouri, on October 2, 1930, six days after the shooting. The bullet was found upon postmortem examination and was described by State's witnesses as of 45 calibre. Sheriff C.R. Kelley, of Howell County, testified that, a day or two after the shooting, appellant, when questioned by the prosecuting attorney, stated that he and not Vollmer or Brooks, did the shooting. Other witnesses testified that appellant made a like admission on the night of the shooting at the home of Bolerjack's father.

Appellant, on his own behalf, testified that he stepped into the road and displayed the flash light when Bolerjack's car was distant a quarter mile. He also testified that, when Bolerjack's car came within hearing distance of him, he yelled to the occupants: "Halt that car. You are under arrest." The car then increased its speed and made a sudden drive for him and he had to jump aside. Appellant admitted that he fired four shots but he stated that these were directed at the tire casings at the rear of the car. He also testified that about eight shots in all were fired and that while he was firing, other shots came from the high ground where Vollmer and Brooks were standing. They denied that they did any shooting or that they left their car until after the firing had ceased. Other witnesses, on behalf of appellant, testified that they had examined the scene of the tragedy and the bullet hole in the right front door of Bolerjack's car. The course of the bullet from without to within the car ranged downward, and, in their opinion, the shot could not have been fired from the place where appellant was said to have been standing. But it could have been fired from the higher land where Vollmer and Brooks were said to have been. Four recovered bullets were exhibited. Witnesses for the State testified that all these were from a 45 calibre pistol such as appellant had used. Witnesses for appellant testified that two of the bullets had been fired from a weapon of smaller...