State v. Rodgers
| Decision Date | 11 March 1937 |
| Docket Number | No. 35139.,35139. |
| Citation | 102 S.W.2d 566 |
| Parties | STATE v. RODGERS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Francois County; Taylor Smith, Judge.
Henry Rodgers was convicted of murder in the second degree, and he appeals.
Affirmed.
Louis J. Reidel and J. A. Gochenour, both of St. Louis, for appellant.
Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for the State.
In the circuit court of St. Francois county, Mo., the appellant was convicted of murder in the second degree and his punishment assessed at twenty-five years in the state penitentiary.
The appellant was charged with killing Earl Jenkerson. At the time of the alleged crime, the appellant occupied the upper story and the deceased the lower story of a house located in Bonne Terre, Mo. On June 6, 1935, a difficulty arose between the deceased and the appellant. The appellant called the deceased vile names and invited him out into the yard to fight. The deceased refused the challenge on the ground the appellant had too much help, but stated he would take "one at a time," but he would not "take on an army." On the following day, after the deceased returned from his work at the mine, he went to the woodshed about 20 feet from the house to prepare some wood, and while there the appellant went to the hydrant to get some water. The hydrant was within a few feet of the wood shed. There was testimony that one of the two stated, "We just as well settle it now," and with the uttering of these words the appellant and the deceased started to fight. Other parties in the immediate neighborhood rushed into the yard and a general melee ensued. During the course of the fight, the deceased staggered out of the crowd and started to fall and was assisted to a reclining position on the ground by a person in the crowd, where he died. There was testimony that he died from a wound in the neck which was a little over two inches in depth and that penetrated the brain covering and into the medulla. The wound could have been caused with an ice pick.
The defendant stated to the arresting officer, "Les, I had to do it," also, "I did it with an ice pick." The defendant testified that he stabbed the deceased with an ice pick. He pleaded self-defense. Other pertinent facts will be stated in the course of this opinion.
I. In his brief, the appellant complains of the rulings of the trial court in the admission of evidence offered on behalf of the state.
First, the appellant challenges the evidence offered of the difficulty between him and the deceased on June 6, 1935. This testimony is to the effect that the appellant called the deceased vile names and invited him into the yard to fight. To which invitation the deceased stated "he could not fight an army, and he was by himself," but "he would take on one at a time." The appellant then told the deceased that he would get him anyway. We are of the opinion that this evidence is admissible. Previous threats and bellicose attitude of the parties are admissible to show who was the aggressor. State v. Shawley, 334 Mo. 352, 67 S.W.(2d) 74; State v. Bowenkamp (Mo.Sup.) 39 S.W.(2d) 753; State v. Stallings, 334 Mo. 1, 64 S.W.(2d) 643, 645; State v. Malone, 327 Mo. 1217, 39 S.W.(2d) 786. Certainly, if the appellant made any threats of violence against the deceased, it is competent to prove such threats, especially as the appellant pleaded self-defense. There was testimony to the effect that the appellant stated he would get the deceased.
Immediately after the deceased fell, the appellant went to the deceased's brother and stated, "If you don't be careful, that is what you will get." The appellant assigns the admission of this statement as error. This statement was made within a minute or two after the fight ceased. We think this statement was a spontaneous utterance of thoughts created by the fight itself and therefore is part of the res gestae. "However, under the rulings of well-considered cases and text-writers the ultimate test is spontaneity and logical relation to the main event." State v. Stallings, supra. We rule this statement was admissible as part of the res gestae.
Moreover, we believe that this statement was competent for the purpose of showing an admission by the appellant that he killed the deceased.
The appellant challenges the statement of the arresting officer, Leslie Black, who testified that the appellant stated to him on the way to the jail, "Les, I had to do it." "I did it with an ice pick." The appellant contends that this statement is not admissible because he was under arrest when it was made. The appellant does not contend that the statement was not voluntarily made. As the confession was voluntary, it was not inadmissible because the appellant was under arrest at the time it was made. State v. Brooks, 220 Mo. 74, 119 S.W. 353; State v. Hoskins, 327 Mo. 313, 36 S.W.(2d) 909; State v. Mitchell (Mo.Sup.) 96 S.W.(2d) 341. We rule this point against the...
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...Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37; State v. Davis, 143 S.W.2d 244; State v. Stallings, 334 Mo. 1, 64 S.W.2d 643; State v. Rodgers, 102 S.W.2d 566; 22 sec. 628, p. 962; State v. Murphy, 345 Mo. 358, 133 S.W. 398; State v. Walker, 208 S.W.2d 233; State v. Smith, 355 Mo. 59, 194 S.......
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