State v. Roberts

• Decision Date: 08 June 1922
• Docket Number: No. 23324.,23324.
• Citation: 242 S.W. 669,294 Mo. 284
• Parties: STATE v. ROBERTS.
• Court: Missouri Supreme Court

242 S.W. 669

294 Mo. 284

STATE v. ROBERTS.

No. 23324.

Supreme Court of Missouri, Division No. 2.

June 8, 1922.

Appeal from Circuit Court, Callaway County; E. S. Gantt, Judge.

William L. Roberts was convicted of murder in the second degree, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Special Asst. Atty. Gen., for the State.

HIGBEE, P. J.

On September 17, 1917, the prosecuting attorney of Boone county filed an information, charging the defendant with murder in the first degree for having shot and killed William A. Ryland on July 30, 1917. There was a trial and conviction, which was reversed on appeal, and the cause remanded for a new trial. State v. Roberts, 280 Mo. 669, 217 S. W. 988. On November 15, 1920, the cause again went to trial before a jury, resulting in a verdict of guilty of murder in the second degree and assessing the punishment at imprisonment in the penitentiary for a term of 25 years.

The only living eyewitnesses of the homicide are the appellant and one Charles Palmer, an elderly colored man, employed by the deceased as a farm hand. Roberts and Ryland, the deceased, owned and lived on adjoining farms, situated about three miles southwest of Sturgeon, in Boone county. On the morning of the unfortunate tragedy, Ryland and Palmer were unloading some corn from a wagon into a box at a pond on Ryland's farm. The pond was inclosed with hog-wire fence 4 feet high. Palmer was in the wagon while Ryland was in the inclosure. They noticed Roberts' turkeys a short distance from the pond, and saw two of the defendant's sons, apparently looking for them. Palmer testified, in substance:

Ryland told me to go and tell them to tell their father to keep the turkeys out until he got his hogs out. (Ryland was then feeding about 100 hogs.) I told the boys, "Mr. Ryland says for you to tell your Pa to try to keep the turkeys out till he can get the hogs out of here." I helped drive the turkeys to their premises.

Soon after that Ryland saw Roberts coming from his house, which was about 40 rods from the pond. After a few words of greeting, Roberts said to witness, "I don't want you to be chunking my turkeys." Palmer denied this, saying, "I merely threw a little club behind them to keep them going." Ryland said, "I don't think Charley has been chunking your turkeys," and Mr. Roberts said, "You are a liar." Ryland, who was in the inclosure, picked up a neck yoke and threw it over the fence at Roberts, who started running away from the fence as soon as Ryland got the neck yoke. It fell 8 or 10 feet behind Roberts, who went rapidly towards his house, saying, "I will be back in a few minutes." In a little while, Roberts returned carrying a shotgun. He walked to within 20 or 25 steps (or 8 or 10 steps, as defendant testified) of the deceased, saying: "Now you s____ of a b____, if you think you are a man, get your neck yoke, and I'll show you that I am a man." Ryland, still inside the fence, picked up an ax and said to defendant, "You are on my premises." To which defendant replied: "I know I am. I will show you I am a man." Ryland went to the fence, put one hand on a post and one foot on a wire, as if to get over the fence, when Roberts fired both barrels of the shotgun in quick succession, both shots taking effect in Ryland's breast, arms, and legs. Roberts cramped his gun, threw out the shells, and went off towards his house without saying a word. Ryland took a few steps, sat down, and expired without uttering a word. Palmer went to Ryland's house and returned at once with Mrs. Ryland. Reuben Barnes, the undertaker, testified that he found 115 shot wounds distributed over the front part of `Ryland's body. There were 4 or 5 in the left leg above the knee, all running upward; 3 in the right hand which ranged upward. There were 3 or 4 wounds over the heart. Five or 6 shot had penetrated the arteries, out of which the embalming fluid ran when he put pressure on to force the fluid into the body. It was shown by Mrs. Ryland and others that Ryland and Roberts had always been on friendly terms.

The defendant testified that he had known deceased for 30 years, and had never had any trouble with him, and had seen him almost daily for several years. That at the time of this trouble, he owned a small flock of turkeys, which had been feeding on deceased's premises, and would get away from his children occasionally. He had received no word from deceased about the turkeys until the morning of this trouble. He had sent two of his small boys out a few minutes before to look after the turkeys, and in a short time they came back, and told defendant they had seen deceased's farm hand (Charley Palmer), and he had told them to tell defendant that they did not want to catch the turkeys on that side of the fence any more. Defendant had seen deceased a day or two before, and nothing was said about the turkeys at that time, so defendant decided to go and see Mr. Ryland, the deceased, himself, and went right up the ravine to where he was at the pond. Charley Palmer was also there at the time. They discussed the crops and the weather for a short time, when defendant asked Mr. Ryland if his turkeys had been bothering him much, to which he said they had been bothering him some. Defendant told him that he did not know about it, as he had been working away from home, and that he had been advised by his boys that deceased had sent him word that the turkeys were bothering him, whereupon deceased stated that he did not send him any word, nor had he asked anybody to send him any word. Defendant then said to deceased that he had better stop Charley Palmer from meddling with his business, whereupon deceased stated that he had not been meddling with it and called defendant a damned liar, said. that Palmer had not been clubbing his damned old turkeys, and reached down and picked up a neck yoke and started to strike defendant with, it, when defendant jumped back, whereupon deceased threw the neckyoke toward him and over his head; that when deceased picked up the neck yoke he exclaimed: "I will kill you, G____d damn you!" Deceased said nothing else, and der Pendant started off up the hill to his house, saying he would be back, and went to the house and got an old shotgun he had there, and went back down to the pond. He stopped 10 or 12 steps from deceased, and said to him: "Now, Mr. Ryland, I want you to tell me what you want me to do about those turkeys; let's not have any more of that foolishness." Whereupon deceased picked up an ax and exclaimed: "I want to give you to understand you are on my land and you have got that gun and you use it, and do it G____d damn quick or I will get you." Defendant then told deceased that he had aimed at him a minute ago with the neck yoke, "and if you come at me with that ax, I will use this gun as sure as there is a God in heaven." Whereupon deceased made for the fence, and defendant brought the gun up, Pulled back both hammers and fired both barrels. At this time deceased had one foot on the fence, the ax in his left hand, and his right hand on a post. Defendant discharged the barrels in rapid succession, and fired to save his life. He then went home, put the gun down, rang up central and asked them to send a doctor out there. He then hooked up to his buggy, drove to Sturgeon, and had his brother call the sheriff at Columbia, and told him he was ready to surrender.

The defendant had known deceased for 25 or 30 years, and had lived in the community with him for 8 or 10 years, and knew that deceased had a bad reputation for being a quarrelsome, turbulent, and dangerous man.

On cross-examination, the defendant testified that—

In the conversation with Ryland they both got mad; that Ryland threw the neck yoke at him, and that made him mad. "I started home mad—I went home, and got my gun, and went back down there, and I wanted to settle the trouble while it was new and before it got any older, without any further trouble if I could. We had always got along, and I knew his disposition, and I thought it was better to settle it while it was new than to wait until we met in the middle of the road and he would jump on me. Q. After you got away from him, and he made no attempt to pursue you, why didn't you say, Mr. Ryland, we have always been friends and neighbors and let's settle this without any feeling'? A. Well, I knew he was armed, and I didn't propose to stand and take everything. I saw nothing that morning to indicate that he was armed, but I didn't know but what he was. * * * I went back with that gun with the intention of using it if I had to. * * * I knew that he was a dangerous and turbulent man. I didn't think there would be any shooting when I went back there. took the gun to protect myself if I had to, but I didn't think we would have any further trouble. * * * I had seen this pistol of Ryland's several times. I had seen him with more than one. * * * My gun was an old one; it had hammers; one barrel was what they call half choke, and the other was open. I loaded my gun while I was there in the house. * * * I knew Ryland usually had a pistol. Q. You went to the house to get your gun because you knew Ryland was a dangerous, turbulent man, and if you went down there again there was liable to be some shooting? A. Well, I said I — I have answered it I thought a time or two. I have told you why I took the gun. I didn't know there would be any shooting; I didn't know there would not be any shooting. Q. But if there was any appearance of shooting, you wanted to be prepared to do your part? A. Well, wanted to take care of myself; yes, sir. * * * I knew he had taken his gun to the road to shoot a fellow, and there happened to be another man with him, and that was all, he told me, that kept him from shooting him. It was a friend of Mr. Ryland's with him."

It was shown by 10 or 12 witnesses that the reputation of defendant in the comniunity for being a peaceable, quiet, law-abiding...