State v. Parker

• Decision Date: 16 April 1964
• Docket Number: No. 8256,8256
• Citation: 378 S.W.2d 274
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Merle Eugene PARKER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 274

378 S.W.2d 274

STATE of Missouri, Plaintiff-Respondent, v. Merle Eugene PARKER, Defendant-Appellant.

No. 8256.

Springfield Court of Appeals, Missouri.

April 16, 1964.

Merle Eugene Parker, pro se.

Paul Boone, Pros. Atty., Gainesville, for plaintiff-respondent.

RUARK, Presiding Judge.

The appellant was charged by information, '(Based upon the affidavit of Kelley Sallee),' with common assault in that he did 'in a rude, and insolent manner, unlawfully touch and assault' the said Kelley Sallee. He was convicted by a jury in Ozark County; and, the jury being unable to agree upon a verdict, the court fixed his punishment at a fine of twenty-five dollars.

At about the time defendant's counsel filed his brief, the defendant discharged his counsel and requested permission to file his own brief and argue his own case. The request was granted, and the brief was filed. However, it is of little value to us. It is principally concerned with 'constitutional questions' none of which were raised in the first instance.

The occasion of this difficulty was a charivari (often spelled 'shivaree') held for a pair of newlyweds, Gene Billingsley and his bride, Judy (nee Farnsworth), at the small settlement or village of Thornfield in Ozark County. For the benefit of those who may not be familiar: the charivari (shivaree) is an ancient custom of serenading the bridal couple, which originated in France and was brought to this country in early times. In some localities it became a mock serenade for unpopular marriages and thus a disturbance. See Gilmore v. Fuller, 198 Ill. 130, 65 N.E. 84, 60 L.R.A. 286, and Higgins v. Minaghan, 78 Wis. 602, 47 N.W. 941, 11 L.R.A. 138. In the hill country of Missouri it became (and usually is) a combination of celebration and surprise party by the neighbors for the newlyweds. The surprise was usually announced by the banging on pans or plowshares and the blowing of horns, if available. Sometimes shotguns were fired. When the horse was still essential to our way of life, the surprise was often announced by the 'blowing of anvils.' ¹ Usually the bride and groom were (and sometimes still are) subjected to some good-natured hazing, after which refreshments are served. In this particular instance, the shivaree was held at the house of Judy Jones, a sister of the bridegroom, where the young couple were staying, at any rate on that night. This shivaree appears to have been an invitation affair; at least witnesses testified they were there 'by invitation.' A large crowd of neighbors and friends were present, a goodly number of them mature men with their families. The crowd included the relatives of the couple and also a group of younger people near the age of the newlyweds. Some mention is made of cake and coffee; on the whole we gather that the shivaree was a combination surprise party and celebration, roughly corresponding to a reception which concluded with 'dunking' the newlyweds in a nearby creek.

The settlement of Thornfield is close to, but not on, the state highway. A road leads off to the west, and this road is the main and only street of the settlement. The Jones house sits north of this road about one hundred fifty feet. Cars of the guests were parked on both sides of the road and in the space south of the house and north of the road.

The prosecuting witness, Kelley Sallee, is sheriff of Ozark County. On the evening in question he got a call from Thornfield; and, accompanied by his deputy, Taylor, he went to Thornfield to the home of the caller where he learned that people were setting off dynamite. The two officers went to investigate. They drove past where the cars were parked. They went down by the creek and sat a while and then drove around some. They heard dynamite go off. They drove north of Thornfield on a farm-to-market road about three miles but did not locate the dynamiters. They stopped at a church or schoolhouse and stayed for a while, and then drove back to Thornfield. It was then nine o'clock; the shivaree party was breaking up; the guests were commencing to leave.

The first incident: One Judy Jones (this is the second Judy Jones we have mentioned), a young married woman, had been parked north of the road. When the sheriff came along this time, Judy had backed out at an angle across the road with her car (as the sheriff described it) 'slaunchwise' across the road. The automobile lights were on and the engine was running. The sheriff drove his car up on the north side of the road and stopped in front of the Judy Jones car. He testified that he told Judy she had the road blocked and asked her to move her car. Judy testified that the sheriff drove up and told her he was giving her a ticket for blocking the road; that her husband interfered and said that if the sheriff would get his car out of the way they would go on home; and that the sheriff said 'we wasn't going anywhere.' Therefrom ensued a spirited argument between Judy and Sallee as to who was blocking whom. A crowd gathered around. Sallee testified the crowd vilified him and used vulgar and indecent language toward him. This is disputed by a number of witnesses who were present with their families, including a man standing nearby holding his two-year-old grandchild. Under the rule which we shall state, it is incumbent upon us to believe the prosecuting witness in spite of strong evidence to the contrary; but we here remark that we consider it to have been an unusual procedure if these people in this farming community, consisting of husbands, wives, children, and grandparents and grandchildren, engaged in any extensive use of vulgar and indecent language and, to quote Sallee, 'blackguarding' in the presence of each other. There is no doubt, however, that the gathering was incensed by what they considered, rightly or wrongly, the sheriff's treatment (or mistreatment as the onlookers obviously felt) of Judy Jones. The crowd gave, in the words of one witness, some 'utterance.' There were some 'catcalls' apparently from they younger members of the crowd. The sheriff said that he summoned three boys to appear in magistrate court for 'interfering.' We are not sure just what this interference was, but he said that he had trouble getting the ticket written because those persons 'just kept vilifying me all the time I was writing it--vilifying me, telling me I didn't have the authority to and things like that.' According to defendant's witnesses, the women and girls 'sang' to the sheriff. ² One of the songs was 'Kelley was a jolly good fellow' and another 'When the roll is called up yonder he'll be there.' (We suspect the words were changed somewhat.) Regardless of who did what, or who blocked whom, the sheriff got out his black notebook, laid it on the hood of his car, and wrote Judy a ticket. After that it appears (although it is not very clear in the evidence) that Sallee backed up 'just a little' and Judy drove out. It is not contended that defendant was present or had any part in the 'discussion' at the Judy Jones car concerning the blocking of the road; but the state went into this incident, the defendant willingly joined, and more record is taken up by this affair than by the actual occurrence which involved the alleged assault. Apparently the parties on both sides considered it important to establish who was right and who was wrong in the 'who blocked whom' affair.

The second incident: The sheriff drove off. Before he got 'half a quarter' he noticed his notebook was missing. The deputy said something about having seen it, or something, fly over the windshield. They turned around immediately and drove back to the scene of the recent argument (a number of the guests were still there), and the sheriff got out and commenced looking in the dark for the missing notebook. For some reason he was unable to find it. (This may have been the occasion when the women and girls 'sang' to him.) According to Sallee's testimony, he got back in the car and closed the door, and someone cried, 'He's having a flat, he's having a flat.' He opened the door and heard the air whizzing out. He went back and saw a knife sticking in the tire. He says, 'It made me mad.' The deputy says he was 'pretty mad,' 'awful mad.' According to the prosecuting witness, he said, 'Well, I can take care of the dirty son-of-a-bitch that stuck that knife in my tire.' According to a number of defense witnesses, the prosecuting witness said, 'I can whip the God damn son-of-a-bitch that done that.' The accompanying deputy said he didn't hear what Sallee said. According to Sallee, Gene Billingsley (the bridegroom) had been present at the first incident and was still present in the crowd and, 'he began to double up his fists and he came towards me and I went towards him then.' 'I don't believe I had a flashlight in my hand, I think I pulled up my blackjack out of my hip pocket, and just at that time there was about four different ones grabbed me.' He said two men grabbed him from behind but he never saw who they were; that the defendant 'Gene Parker grabbed me by the left arm and said, 'I'm making a citizen's arrest for you swearing in the crowd--or in public,' and Dick Wallace had me by the right arm.' He said he told Parker that the only man in the county who could arrest the sheriff was the coroner; and, 'after some persuasion,' they turned him loose and he went back to his car. The deputy didn't see just what happened. Some eight witnesses for defense testified concerning this affair. In the composite they say that Sallee went through the crowd swinging (but not striking at anyone) a multicelled flashlight. Gene Billingsley (who, according to defendant's evidence, had just come from the house with his bride after changing his wet clothes and having some cake and coffee) laughed at Sallee. Then Sallee started swinging at him with the flashlight; Billingsley had his arm up warding off the blows and was dodging. Sallee then pulled out his blackjack and started...