State v. Pearson

• Decision Date: 19 March 1925
• Docket Number: 26045
• Citation: State v. Pearson, 270 S.W. 347 (Mo. 1925)
• Parties: STATE v. PEARSON
• Court: Missouri Supreme Court

270 S.W. 347

STATE v. PEARSON

No. 26045

Supreme Court of Missouri, Second Division

March 19, 1925

Mayes & Gossom and Ward, Reeves & Oliver, all of Carruthersville, for appellant.

Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty Gen., for the State.

OPINION

Statement.

RAILEY, C.

On November 6, 1923, the prosecuting attorney of Pemiscot county, Mo., filed in the circuit court of said county a verified information, charging that Bill Pearson and Henry Pearson were guilty of murder in the first degree in having feloniously, etc., shot and killed Allen Taylor in said county on or about October 14, 1923. A severance was granted and the state elected to try defendant, Henry Pearson, first. The latter waived arraignment and entered a plea of not guilty. The state waived the charge of murder in the first degree and elected to try defendant for murder in the second degree.

The case was tried before a jury, and on December 1, 1923, the following verdict was returned:

'We the jury, find the defendant guilty of murder in the second degree and assess his punishment at imprisonment in the penitentiary for a term of ten years.

'J F. McArthur, Foreman.'

On December 5, 1923, defendant filed a motion for a new trial, and on the 19th of said month filed a motion in arrest of judgment. Both motions were overruled, and thereafter on said December 19, 1923, judgment was rendered and sentence pronounced on defendant in conformity to the verdict of the jury. Thereafter an appeal was duly allowed defendant to this court.

The statement made by counsel for appellant is argumentative in form, and does not comply with rule 15 of this court. We think counsel for the state have made a fair statement of the general facts in the case, as follows:

The evidence on the part of the state was, briefly, as follows:

About 8:30 o'clock in the morning of Sunday, October 14, 1923, appellant was on the porch of the house of his son, Bill Pearson, in Pemiscot county, Mo. With him was one Lummie Anglin, a neighbor, who had just come up when the deceased, Allen Taylor, approached a gate in front of the house. Taylor called out, 'Hey, Will, come out here and I will pay you for your cotton picking.' Appellant answered, 'What did you do with the Hunter part of the rent?' and started out toward deceased. Bill Pearson went out through the gate and was on the outside when he fired two shots into deceased from a 45 Colt automatic. Deceased fell across a small ditch, his feet to the fence. He had his pocketbook in his left hand and nothing in his right. He was on the ground when the appellant went toward him through the gate. Appellant had a 32-caliber revolver and fired once into deceased. The last shot was less noisy than the two first. At the time of the shooting, the two Pearsons were within four feet of each other and six feet of deceased. Deceased had no weapons. A common pocketknife with one blade open appeared to fall from deceased's right hip pocket when the body was rolled over for examination by the coroner's jury. Deceased retained the open pocketbook clutched in his hand after death. He also had in his left hand a paper deposit slip showing one-fourth the amount of cotton he had taken on the Hunter account. Some small change was found near the body.

There were three wounds in the body, two larger than the other. All the bullets passed through the body. One wound was in the left side under the first rib, one through the right side of the neck, and the smaller one on the right side of the head.

The two pistols, the deposit slip, the bloody clothing worn by the deceased, and the purse were admitted in evidence.

After the shooting, appellant went to one Ambrose Stewart, a deputy sheriff, and surrendered. Stewart returned with him to the scene of the shooting where an inquest was in progress and where Stewart arrested Bill Pearson. He advised appellant, who was called to testify at the inquest, not to testify; but appellant answered that he wanted to testify and told Stewart to have the acting coroner call him to the stand. Appellant himself, on the stand in the trial of the case, admitted Stewart had advised him not to testify. Appellant testified at the inquest as follows:

'A. Well, he said Taylor walked up to the gate and asked him, wanted to pay Bill, and he asked him what he done with his part of the Hunter rent, and he said Taylor said, 'Old man, you ain't got a G -- d -- thing to do with that,' and throwed his hand to his right hip pocket; said he pulled a 45 and shot him twice and pulled the little gun and shot him once; he didn't say whether he hit him or not.

'Q. But he said he shot him? A. Yes, sir; said he shot him.'

On his way to surrender after the shooting, appellant told a neighbor, one Harvey Cheshire, that he had killed deceased.

The evidence offered by appellant was as follows:

Appellant is a man of about 60 years of age. At the time of the shooting he was living with one John Standfield, a farmer living near the home of Bill Pearson, the son. He bore a good reputation as a peaceful, quiet, and law-abiding citizen. Deceased's reputation was bad as being fussy, quarrelsome, and dangerous. He had previously served a term for murder.

Threats to the effect 'I'll kill the d -- s -- of a b -- ' had been made by deceased and against appellant to Tom Darnell, Bill Pearson, Mrs. Bill Pearson, John Standfield, and to appellant shortly prior to the killing. The trouble arose over the distribution of proceeds from a joint rental of land owned by one Hunter. The threat made to Bill Pearson was the only one communicated to appellant.

James Standfield testified that deceased came to his house early the morning of the killing. He opened a gate with his left hand, holding his right in his pocket. Something that might have been an open knife was in his pocket. Deceased asked for appellant and then left in the direction of the Bill Pearson home, after paying Standfield for some cotton picking done for him by Standfield's boy.

When deceased reached Bill Pearson's, appellant and Lummie Anglin were standing in the front yard, and Bill Pearson and his family were having breakfast in the house. Deceased called, 'Will, come out and I will pay you the balance of the cotton picking.' Appellant asked, 'What did you do with my part of the proceeds off the Hunter land?' By this time, appellant and Bill Pearson had approached deceased, and were within about six feet of where he stood. Appellant was in the lead. Deceased answered, 'None of your d -- business.' He had his pocketbook in his left hand, and as he replied he put his right hand into his pocket and said, 'You d -- old son of a b -- : I will kill you.' Both appellant and Bill Pearson then shot, appellant because he was afraid he would be killed by deceased, and Bill Pearson because he feared deceased would kill his father. Neither saw deceased draw any knife, but shot as he reached into his pocket. Deceased had never shown them the deposit slip on account of the Hunter land crop.

Such other matters as may be deemed important will be considered in the opinion.

Opinion.

I. Appellant contends that --

'The court erred in permitting the state, after the jury was drawn, to indorse on the information 13 new witnesses, and in overruling defendant's affidavit of surprise and motion to continue.'

During the oral argument in this court, which took a wide range, some matters were discussed dehors the record, but we will endeavor to consider this question as presented in the record proper and bill of exceptions.

It is conceded throughout the record that Allen Taylor was killed on October 14, 1923, in Pemiscot county, Mo. The defendant was arrested on the date last mentioned and committed to jail. On October 20, 1923, after hearing the evidence, F. J. Secoy, a justice of the peace, bound the defendant over to appear to the first day of the next term of the circuit court of said county to commence on November 19, 1923. The information herein was filed November 6, 1923. On November 20, 1923, both the state and defendant announced ready for trial. Appellant waived arraignment, entered a plea of not guilty, and the court ordered a special venire of 50 men returnable Wednesday morning, November 28, 1923, to which time the case was continued. On the date last mentioned, the parties to the action, and the special jury, were before the court ready to proceed with the trial of the cause. The prosecuting attorney, at this time, asked permission of the court to indorse on the information the names of 13 new witnesses. Over the objection of defendant, the court complied with respondent's request, and permitted said new names to be indorsed on the information. Thereupon the defendant filed an affidavit of surprise, asked for a continuance, and alleged that he could not safely proceed with the trial of the cause without an opportunity to meet the proposed new testimony. So far as the record discloses, the prosecuting attorney made no statement to the court as to why these names were not indorsed sooner. The facts relating to the matter were peculiarly within his knowledge, and, in common fairness, the court should have been informed as to why these indorsements had not been made before the parties announced ready and a jury summoned.

It is assumed by respondent in its brief that the duty devolved upon defendant to show that the prosecuting attorney purposely refrained from indorsing said names sooner. On the facts presented in this record, such contention does not appeal to us as being sound. The motive which actuated the prosecuting attorney in making the indorsement at that time instead of an earlier date, as required by section 3889, R. S. 1919, was peculiarly within his...