State v. Privett

• Decision Date: 07 July 1939
• Docket Number: 36503
• Parties: The State v. Robert Privett, Appellant
• Court: Missouri Supreme Court

130 S.W.2d 575

344 Mo. 1020

The State v. Robert Privett, Appellant

No. 36503

Supreme Court of Missouri

July 7, 1939

Appeal from Pemiscot Circuit Court; Hon. L. H. Schult Judge.

Reversed and remanded.

Corbett & Peal for appellant.

(1) The verdict of the jury is not supported by any substantial evidence, either direct or circumstantial, in that, there was no proof that Robert Privett gave to N. C. Teroy any mortal wound, which caused his death. All the evidence insofar as it affected the defendant, Robert Privett, as having given to N C. Teroy a mortal wound by having made an assault on him with a club was circumstantial. No person or witness in the case ever saw any wound inflicted on N. C. Teroy by Robert Privett, and the first time any wounds were discovered on the person of N. C. Teroy was after he had been struck by the Gillam automobile, a mile and a quarter from the place of the altercation between N. C. Teroy and Robert Privett. And every fact and circumstance in the case shows conclusively that wounds inflicted upon the head and person of N. C. Teroy were inflicted by the Gillam automobile. No blood was found along the course N. C. Teroy traveled when he left the place of the altercation with Robert Privett to the point of the impact of the Gillam car with N. C. Teroy's body. It was not sufficient under this charge of murder for the State to prove merely that Robert Privett made a felonious assault upon N. C. Teroy, but it was incumbent upon the State to further prove that, in making the assault, Robert Privett gave to N. C. Teroy mortal wounds, from which he died. It was necessary in the information to charge, not only the felonious assault, but also a felonious wounding, and that the wounds were mortal wounds which caused the death of N. C. Teroy. State v. Sides, 64 Mo. 383; State v. Hagan, 164 Mo. 654; State v. Robertson, 178 Mo. 496; Kelly's Criminal Law (3 Ed.), sec. 484, p. 430. It is necessary to prove that the deceased actually died of the injury inflicted upon him by the defendant, within a year and a day after he received the injury, and where the evidence shows that his death was not caused by the wounds inflicted by defendant, but from some other cause, the person who inflicted the wounds cannot be convicted of murder. Kelly's Criminal Law (3 Ed.), sec. 473, p. 416. It is not sufficient for the State to prove the death of the deceased, and that the deceased came to his death by violent means, but it is incumbent upon the State to prove the criminal agency of the defendant in connection therewith beyond a reasonable doubt. State v. Bass, 251 Mo. 126; State v. Crabtree, 170 Mo. 650; State v. Dickson, 78 Mo. 447; Wharton on Homicide (3 Ed.), sec. 587; State v. Joy, 285 S.W. 489; State v. Francis, 199 Mo. 671; State v. Gordon, 199 Mo. 561; State v. Nesenhener, 164 Mo. 461. Under the defendant's plea of not guilty, the State was required to prove at the trial every fact and circumstance stated in the information, which is material and necessary to constitute the offense charged. Kelly's Criminal Law (3 Ed.), p. 197; State v. Hyde, 234 Mo. 200; Underhill's Criminal Evidence (4 Ed.), sec. 575, p. 1143; State v. Wingo, 66 Mo. 181. (2) The court erred in excluding the offered testimony of the witnesses, Claude Parnell and Mrs. Claude Parnell, which was to the effect that they saw N. C. Teroy, the deceased, within a few minutes after the altercation of defendant with N. C. Teroy, and that at the time there were no wounds upon the head or face of N. C. Teroy and which evidence together with the other evidence in the case would have shown conclusively that N. C. Teroy came to his death by being struck by an automobile, and not by injuries inflicted on him by Robert Privett. Underhill's Criminal Evidence (4 Ed.), secs. 554, 567, 569, 570, pp. 1083, 1129, 1135, 1136; State v. Moxley, 102 Mo. 385; State v. Martin, 124 Mo. 514; State v. Hudspeth, 159 Mo. 178.

Roy McKittrick, Attorney General, and Tyre W. Burton, Assistant Attorney General, for respondent.

(1) It was a question of fact for the jury whether the wound inflicted by the appellant on Teroy was a mortal wound. State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A. L. R. 1135, sec. 20; State v. Frazier, 98 S.W.2d 713, 339 Mo. 966. (2) The court did not err in excluding the evidence of the witness, Parnell. State v. Burgess, 193 S.W. 824. (3) Instructions should be considered together and not separately. State v. Nasello, 325 Mo. 442, 30 S.W.2d 139. (4) The court did not err in admitting evidence concerning the injunction order against Skinner's night club. 16 C. J., p. 884, sec. 2217; State v. Mitchell, 339 Mo. 228, 96 S.W.2d 342; State v. Stevens, 220 S.W. 844, 281 Mo. 647.

OPINION

Ellison, P.J.

The appellant was convicted of first degree murder in the Circuit Court of Pemiscot County and sentenced to life imprisonment in the penitentiary for killing N. C. Teroy by beating him on the head with a wooden club. The principal assignments of error in his brief complain that the evidence was insufficient to support the verdict; and of the erroneous exclusion of testimony. As the judgment must be reversed and the cause remanded for the latter reason, only such other assignments will be discussed as probably would recur on a new trial.

The alleged homicide occurred on the night of May 22, 1938, at Skinner's night club on Highway 84 about six miles west of Hayti in Pemiscot County. The deceased Teroy, who was more or less of a stranger in the community, and a man named Crow engaged in a fight. They were separated by Skinner, the appellant Privett and other bystanders. Privett worked on Skinner's farm and also served on occasions as a "bouncer" at the night club. A young man named Ring, who had a beer bottle in his hand, made a hostile demonstration against Teroy, and the latter shoved him back. The appellant interfered saying "You can't do that, that is my neighbor's boy." Some of the testimony is that Crow opened his pocket knife. Appellant picked up a wooden club about three feet long and two and a half inches thick, with some stubs of cut-off branches projecting from it two or three inches, saying "Let's get him," or "Let's get him, gang, lets kill the s of b ." This referred to Teroy, who fled around the outside and toward the back of the night club with appellant and a crowd of other men in pursuit.

There was a wire fence on the south and west sides of the building. Teroy ran first into the south fence and then into and through the west fence and down the road. One witness named Taylor said he saw appellant strike Teroy with a club and that the blow sounded as if it struck flesh, and then when Teroy had reached the fence the appellant hit him two more times. Other witnesses said the blows sounded like hitting a mule or a mattress with a club. The witness Taylor said he could not be sure what part of Teroy's body was struck by the club because it was dark, but he couldn't say it was not the head. Parts of the witness's testimony at the preliminary trial were read on cross and re-direct examination in which he said the blows must have struck deceased below the neck because he would have been unable to run away as he did if they had landed on his head.

George Manning said he saw appellant strike Teroy two or three times, and heard him cry out, "oh," "oh." However, on crossexamination the witness admitted he didn't see the blows struck but concluded they were from hearing the sound of them on Teroy's body and his cries. Other witnesses heard the blows and a number of them declared that appellant immediately afterward stated he had hit the deceased three times. One witness quoted him as saying he broke the club over some guy's head, and another that he hit Teroy three times on the head. There is an abundance of testimony that appellant said he had struck the deceased. In fact he admitted it on direct examination at the trial, explaining he made the statement because the crowd was in an uproar about Teroy, and that what he really did was to strike the house with his club and not the deceased at all.

Teroy fled from the scene of the affray by a circuitous route and got back on Highway 84. He proceeded west along that road for about a mile and a half to a point where he was run down by an automobile driven by Luther Gillam. According to the testimony of Gillam and his companion, the car was going 20 to 30 miles per hour at the moment of the collision, and the outside curved part of the right front fender struck Teroy a glancing blow on the thigh and knocked him sideways off of the concrete pavement onto the dirt shoulder of the highway. This part of the road was covered with grass and weeds, and there were no rocks, gravel or hard objects there. The collision made a dent or depression in the fender six or eight inches long. Gillam took Teroy to Hayti where he was examined by Dr. A. G. Shirley. The doctor made a hasty examination, found he was seriously injured, and ordered him taken to a hospital in Blytheville, Arkansas. Gillam drove him there, and he died the next afternoon. Appellant's first defense is that he did not hit Teroy with a club, or at all, and in this he is corroborated by several other witnesses. But in view of the strong testimony to the contrary, his main contention is that Teroy was fatally injured in the collision with Gillam's automobile, and that there is no substantial evidence showing his death was caused by the blows from the club. We shall review the evidence briefly with an eye to that question.

To begin with, the injuries Teroy received were described by both doctors as follows: Dr. Shirley said there was a large bruised laceration across his forehead with a hole nearly large enough for him to get his finger in, probably penetrating...