State v. Page

• Decision Date: 07 July 1939
• Docket Number: No. 36415.,36415.
• Citation: 130 S.W.2d 520
• Parties: STATE v. PAGE.
• Court: Missouri Supreme Court

130 S.W.2d 520

STATE v. PAGE.

No. 36415.

Supreme Court of Missouri, Division No. 2.

July 7, 1939.

Appeal from Circuit Court, Howard County; Aubrey R. Hammett, Judge.

Bud Page was convicted for first-degree murder, and he appeals.

Affirmed.

Jasper Thompson and Lionel Davis, both of Fayette, for appellant.

Roy McKittrick, Atty. Gen., and Tyre W. Burton, Asst. Atty. Gen., for the State.

LEEDY, Judge.

The appellant, Bud Page, was tried in the Howard circuit court under an information charging him with murder in the first degree, in having shot and killed Thomas Petty. The jury returned a verdict finding him guilty of that offense, and assessing his punishment at life imprisonment; and from the judgment and sentence in accordance therewith, he has appealed as a poor person. The sole question preserved for review by the motion for a new trial is a challenge of the sufficiency of the evidence. Appellant admitted the homicide, and sought to justify it as in self-defense. The evidence is charged to be insufficient to support a conviction of first degree murder in that there was no evidence of deliberation. It is the theory of the state that appellant killed deceased for the purpose of getting his money.

Both parties to the homicidal event were negro youths — deceased being sixteen years of age at the time of his death on December 23, 1937, and appellant, according to his testimony, reached that age on January 17, 1938. They were employed by Ollie Ennis as hands on his dairy farm near Fayette. The deceased had been so employed for a period of a year. It appears that he brought appellant home with him one night about two weeks before the tragedy, and the next day Ennis gave the latter employment. The two boys roomed in the basement of the Ennis home directly beneath a bedroom and the sitting room, and the construction was such that a conversation between persons in the basement was audible in the rooms above.

Witness Lucy Wayland, a colored woman, lived in Fayette and conducted a restaurant in her home. Deceased and appellant frequented her place, and were there on Sunday preceding the killing. At that time appellant gave her two dollars for which she was to order a hat for him. She testified that he had other money — "He had two $5.00 bills, and so far as I could see, he had some ones." The boys were also at Lucy's the night before the killing, at which time appellant borrowed thirty-five cents from deceased with which he bought whiskey. On that occasion he also borrowed a dime from deceased's brother to buy a sandwich. The several persons at Lucy's place on the occasions mentioned testified that the relations between the two boys appeared to be friendly. The deceased, who saved his money, kept a coin bank in his trunk, and a wallet or billfold in his room.

Appellant appeared at the residence of some friends (Cordell and Jesse Broaddus) sometime during the morning on which the killing occurred — the approximate time is not shown by the record — when he told the persons just mentioned and another associate, one Stapleton, that he had killed Petty, and, accompanied by them, he walked down the railroad track to town and to Lucy Wayland's. The testimony of these witnesses touching appellant's statement and his subsequent conduct is as follows:

Cordell Broaddus:

"When he called me out he told me he had shot Tom Petty and I didn't believe it and he kept on laughing, and I said, `Why don't you quit that joking?' And while we were walking down the railroad track — he had on a pretty nice pair of overshoes — and he said, `When I get up to Mrs. Wayland's he would give me those overshoes, and after we got up there he did give them to me.

"Q. And what did the defendant say on the way to town? A. Nothing. I asked him about it and he wouldn't tell me for a good, long while; and he told me they had a little spat up at the house — he said Tom whipped him.

"Q. How was that — you said he had a spat at Mr. Ennis' house? A. Yes, sir; he said he had a spat.

"Mr. Davis. He said Tom whipped him, didn't he? A. Yes, sir.

"Q. All right — he whipped him at Ennis' house? A. Yes, sir.

"Q. And what else did Bud say then after that? A. He said he got angry and then he went to the barn and killed him. * * * After we got up there [at Lucy Wayland's] he sent Jesse to the store for a package of cigarettes and he got the cigarettes and all his change back and then he bought a sandwich and bottle of pop and I think she said he owed her 20 cents and he paid her in pennies — I saw 15 or 20 pennies in his hands."

Jesse Broaddus:

"When he got to my house he knocked on the door and mother went to the door and said, `Won't you come in, Bud?' And he said `No, I haven't got time.' And he said, `Is Jesse here?' And my mother told him `Yes.' He said, `Tell him to come here, I want to see him.'

"Q. That is what the defendant said? A. Yes, sir; and so I went out there and said, `Won't you come in, Bud?' He said, `No, I haven't time.' And he said, `Jesse, if I tell you something will you tell it?' I said, `No.' And so he told me `I killed Tom Petty this morning.' I said, `No, you didn't, you are kidding.' I didn't think he had. And he said, `Come on and go to town with me.' And we went to town. And as we went to town on the railroad track we talked about it, and Bud told me, `Me and Tom had a spat up at the house this morning and I shot him.'

"Q. Where did he say he shot him at? A. Down at the barn. * * *

"Q. When you got over there tell what he did, if anything? A. Well, while we were over there [at Lucy Wayland's] he bought a rabbit sandwich and a bottle of soda and a bar of candy.

"Q. Did he pay for it? A. Yes, sir.

"Q. How did he pay for it? A. Well, I don't know exactly — I think it was some change.

"Q. Did you see him with any money that morning? A. Yes, sir, I seen him with ten or fifteen pennies.

"Q. Where did he have them at? A. He had them in his hands in the front room.

"Q. Did he pay for anything else at that time? A. Yes, sir, I think he told her he wanted to pay his bills off.

"Q. Did you hear him say how much it was? A. No, sir."

George Edward Stapleton:

"A. He came there [at Cordell Broaddus'] and when he came to the house he called Cordell out and he shut the door and told us about shooting Tommy and we told him he was `Jonahing.'

"Q. Tell what Bud Page told you when he came to the house. A. He came and called for Cordell and he told us he had killed Tommy Petty and we thought he was kidding and he said he killed him `this morning,' and after he told that we asked what he killed Tommy for and he said they got into a spat at the house and Tommy whipped him and he got angry and went down to the barn and [Note: The bill of exceptions shows this sentence to be incomplete.]

"Q. And where did you go? A. We went up town to Mrs. Wayland's and set there and talked and Bud bought a bottle of soda and a rabbit sandwich and a candy bar from Mrs. Wayland and he gave her ten or fifteen pennies and then he asked her how much he owed and she said fifteen or twenty — I am not sure, and he gave her a quarter.

"Q. What was the defendant's attitude at that time — did he seem in good spirits? A. Yes, he seemed like he always did — in good humor.

"Q. Did he say anything in your presence about turning himself over to the law? A. Yes, sir, about one o'clock he said, `I guess I will go up and turn myself in.'

"Q. How long did you stay there at Lucy's? A. We stayed there until about ten minutes of one.

"Q. And the defendant was still there when you left? A. Yes, sir."

There was no evidence tending to show appellant had any cuts or bruises on his face or body after the homicide.

Mrs. Ennis testified that on the morning in question the boys were talking and laughing in the basement until they went to the barn between 9:00 and 9:30. About 10:30 she heard someone go in the basement, and she called "Tom," and no one answered, and then she called "Bud," and appellant answered. She asked if they had fed the stock, and he said, "No, we are going right away" and left. Mr. Ennis heard no unusual noise or loud conversation in the basement on the morning in question. His testimony was to the effect that everything in the basement was quiet, as usual. The deceased's body was found in one of the barns about 5:00 P. M., under conditions presently to be noticed. It was then discovered that the stock had not been fed, the fodder which had been brought up, being still on the wagon.

About four o'clock on the afternoon in question appellant's uncle heard of the killing, and sought out the appellant, and inquired if he had killed Tom Petty, to which appellant replied that he had. Whereupon the uncle caused appellant to be taken to the county jail and locked up. The uncle accompanied the sheriff and his deputy and the undertaker to the Ennis house, where they arrived at about five o'clock P. M. The physical surroundings at the barn are not entirely clear from the record, but it appears that there were bales of straw stacked between the hay stored in the barn and the manger, or where the cows and calves were kept. The deceased's body was found on top of two such bales of straw. The straw was about four bales high. He was found lying on his left side with his knees doubled up with both hands up in his face. He was wearing leather mittens — one on each hand — with fingered gloves underneath. These were removed by the undertaker. There was some testimony to the effect that there was room enough on top of these bales of straw for a man to stand up, but Mr. Ennis testified that the distance from the roof to the top of the straw was a distance of about thirty-two inches. The gunshot wound was described as being "just a hole about the size of a man's fist in the center of the top of the head." It was shown that when the body was lifted the brain fell out. Deceased was unarmed. A search was made, but no weapon of any kind found on his body or at the scene of...