State v. Roberts

• Decision Date: 26 January 1920
• Docket Number: No. 20917.,20917.
• Citation: State v. Roberts, 280 Mo. 669, 217 S.W. 988 (Mo. 1920)
• Parties: STATE v. ROBERTS.
• Court: Missouri Supreme Court

217 S.W. 988

280 Mo. 669

STATE v. ROBERTS.

No. 20917.

Supreme Court of Missouri, in Banc.

January 26, 1920.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

William L. Roberts was convicted of murder in the second degree, and he appeals. Judgment reversed, and cause remanded.

Upon an information charging him with the crime of murder in the first degree, defendant was tried in the circuit court of Boone county, found guilty of murder in the second degree, and his punishment fixed at 20 years' imprisonment. Defendant has duly perfected an appeal.

The evidence may be summarized as follows:

William L. Roberts (hereinafter referred to as appellant), about 8 o'clock a. m., July 30, 1917, killed, by firing in rapid succession both barrels of a double-barreled shotgun, one William A. Ryland (hereinafter referred to as deceased).

Appellant and deceased for many years prior to and up to the time of the tragedy lived on adjoining farms as friendly neighbors.

Early on the morning of the homicide the deceased and one Charles Palmer, a colored farm hand, went down to a feed lot on deceased's farm for the purpose of feeding hogs and unloading some shelled corn. The feed lot was about one-half mile from deceased's farmhouse, and approximately one-eighth mile from defendant's farmhouse.

While deceased and his helper were unloading the shelled corn some of appellant's turkeys came over near the feed lot. At about the same time some of appellant's boys were seen by the deceased. The deceased thereupon told his helper to go over and tell appellant's boys to tell appellant that he (deceased) desired that the turkeys be kept out of the hog lot until he had finished fattening the hogs. The colored farm hand did as he was instructed, and the appellant's boys delivered the message to the appellant.

In a few minutes appellant went down to the hog lot. After some discussion concerning the turkeys, each called the other a liar, and deceased threw a neck yoke at appellant. Appellant hurriedly went away in the direction of his home, saying he would return shortly. He kept his promise, and in a few minutes returned with a double-barreled shotgun, and after more discussion, and while deceased was in the act of climbing the wire. fence, with an ax in his hand, appellant fired in rapid succession both barrels of the shotgun, inflicting the wounds from which the deceased shortly thereafter died.

The appellant and the colored farm hand are the only living witnesses to the tragedy. The farm hand testified for the state, and the appellant testified in his own behalf. There is some conflict in their testimony. The farm hand, testifying for the state, related the occurrence as follows:

"Well, he [appellant] came down, and he says, `What kind of word is that?' and he said to me, `I don't want you to be chumping my turkeys,' and I said, `Mr. Roberts, I would not hurt your turkeys; I just merely throwed a little stick along behind them to hurry them along;' and Mr. Ryland said, `I don't think he has been chumping your turkeys;' and he [appellant] said, `You are a liar!' * * * Mr. Ryland just reached down and picked up a neck yoke, and threw it at Mr. Roberts, and Mr. Roberts broke and run away from the fence then, and he [appellant] says, `I will be back in a few minutes.'"

Appellant went away in the direction of his house, and in a short time was seen return The deceased said to the witness, "Yonder comes Mr. Roberts back." The witness raised up and saw that appellant had a gun, and the witness said to deceased, "What in the world is he going to do?" and deceased said, "I guess he is going to mean business." That appellant came up within about 25 steps of deceased, and stopped between two trees, and, addressing deceased, said, "Now, you son of a bitch, if you want to get a neck yoke, get a neck yoke, and I will show you that I am game." Thereupon "Mr. Ryland picked up an old ax, and walked up kind of to the fence and said, `You're on my premises,' and he [deceased] kind of raised his foot up like he was going to step up on the wire [fence], and Mr. Roberts said, `I mean business,' and then, `Boom ! Boom !'" The deceased, fatally wounded, turned and walked a few feet and sat down on a plank. The appellant broke his gun for the purpose of removing the shells, and walked back towards his home.

Appellant, testifying in his own behalf, stated that he and deceased had been good friends for many years prior to this trouble, and that two or three times prior thereto the colored farm hand told appellant's children to keep the turkeys away, and that the children did their best to do so. The day before the tragedy appellant's daughter told him that she had seen the colored man clubbing the turkeys, "trying to kill them."

Early on the morning of the tragedy, appellant's boys came to him and told him that the colored man had just told them that deceased "did not want to catch them [the turkeys] on his side of the fence any more."

Appellant told his boys that he would go down and see the deceased, and that he didn't believe the word the colored man had sent, because the deceased had told appellant a few days before that "the turkeys weren't bothering to amount to anything, and that he wasn't kicking."

Appellant then went down to where the deceased and the colored man were at work, and, after exchanging friendly greetings, they talked several minutes about the crops and the weather and the scarcity of water.

Appellant then related what occurred as follows:

"Well, I said, `What about these turkeys; are they bothering you?' and he said, `Well, some, but not a great deal,' and I said, `Well, I didn't know; I have been away from home, and the boys have been getting some word, or I got some word, and I thought I had better come and see you—maybe they had been bothering;' and he said, `Well, I haven't sent no word or authorized any one to give you any word;' and I said, `Well, I will tell you what you had better do—you had better stop Charlie from meddling with your business then.' He said, `Charlie has not been meddling with my business;' and I said, `Yes, he has;' and he said, `You are a liar;' and I said, `Well, he just sent me word down there this morning that you said not to let the turkeys get over the fence;' and he said, `He never did no such a damned thing;' and I said, `Well, I know he did;' and I said, `Mr. Ryland, he was clubbing them turkeys, and I don't think you ought to let him club them, and the boys are working hard to keep them out, and they have been working hard, and it is so close;' and he said, `He has not been clubbing your God damned turkeys' and I said, `Mr. Ryland, my daughter saw Charlie clubbing those turkeys along about 9 o'clock in the morning;' and he said, `That is a God damned lie.' I said, `Well, you are a damned liar yourself,' and I said, `I know she ain't;' and he said, `I will kill you, you God damned son of a bitch'—and there was a neck yoke lying there at his feet, and he was a very quick man, and he reached for that neck yoke, and of course I had nothing to defend Myself with, and I was close to him, and when he come up with the neck yoke I jumped back from the fence some 4 or 5 feet, out of reach of him with the neck yoke, unless he would get over the fence. When he found he could not reach me with the neck yoke, he let loose, and it passed on over my head some 10 or 12 steps, out nearly to the edge of the bluff. Well, then I started for the house, and I went on to the house—went in a run. As I left, I told him I would be back."

The appellant then went to his house, procured a couple of shells and his double-barreled shotgun, and returned to within 12 steps of deceased, who was then standing near the wagon in the hog lot. The wire fence was between the two. Appellant was carrying the shotgun on his shoulder. What occurred thereafter is related by appellant as follows:

"Well, I told him, `Now, Mr. Ryland, I want you to tell me what you want me to do with these turkeys, and let's not have no more foolishness.' * * * He [deceased] said, `I am going to tell you this, you big son of a bitch, you are over on my side of the fence now, and you have got that gun, and, God damn you, you use it, and you use it quick, or I will get you, as sure as hell;' and he run out where the ax was laying out close to the edge of the pond and picked up the ax, and, when he turned around and faced me, I said, `Mr. Ryland, you missed me a minute ago—now make sure of this, if you come at me with that ax, I am going to use this gun just as sure as there is a God in heaven' and he says `God damn you, I ain't going to take a word off of you;' and he made a dive for the fence, and about a step or two before he got on the fence I said, `For God's sake, don't do it.'

"Q. Did he start to get over the fence? A. Yes, sir; he had one foot up in the fence and his left hand on the wire.

"Q. What, if anything, did he have in his right hand? A. Well, he had the ax in his right hand.

"Q. Do you know what kind of an ax this was? A. No, sir; I didn't know exactly what kind. I could just see it was an ax, and that was all.

"Q. What did you do when he got up on the fence? A. Well, I emptied the gun.

"Q. What did you shoot him for? A. Well, it was just this: I knew it would be only a few seconds until he would be on me with that ax, and I knew that it had come that one or the other of us had to go, and I shot him to save my own life."

After the shots were fired appellant saw deceased go towards the boxes, and appellant turned around and started to his home, and, after turning around, took the empty shells out of his gun.

On cross-examination appellant testified that deceased had told him that he always went armed, and for that reason appellant didn't want to argue with a man who was armed when he himself was unarmed, and for that reason he went home to get his gun and have it with him if he needed it; that he knew the longer...