State v. Rogers

• Decision Date: 09 December 1913
• Citation: 253 Mo. 399,161 S.W. 770
• Parties: STATE v. ROGERS.
• Court: Missouri Supreme Court

161 S.W. 770

253 Mo. 399

STATE v. ROGERS.

Supreme Court of Missouri, Division No. 2.

December 9, 1913.

1. CRIMINAL LAW (§ 1092) — BILL OF EXCEPTIONS — TIME TO FILE — STATUTES.

Rev. St. 1909, § 5245, provided that exceptions in criminal cases might be taken as provided by law in civil cases, and that bills of exception should be settled, signed, and filed as "now" allowed by law in civil actions. Section 2029, defining such procedure in civil cases, was repealed by Laws 1911, p. 139, providing new rules for the filing of bills of exceptions. Defendant was convicted December 9, 1912, granted an appeal the same day, and given until April, 1913, to file a bill of exceptions but did not file it until August 2, 1913, after the term during which the appeal was granted had expired, but which, however, was settled and signed by the trial judge and filed. Held that, while a reference statute specifically designating the provision which it makes a part of itself will not be changed or modified by any subsequent change in the statute referred to, yet, where it pertains only to a mode of procedure and refers generally to some practice statute, it is affected by any change or amendment in such statute, and that, as the bill was filed within the time allowed by the amendment, it was timely.

2. CRIMINAL LAW (§ 364) — RES GESTÆ — DECLARATIONS OF ACCUSED AFTER CRIME.

In a prosecution for murder, evidence that after accused returned home and, within a few minutes after the shooting, he took down a shotgun, loaded it, and stated that he would go back and kill every d____d one of them was admissible as a part of the res gestæ.

3. CRIMINAL LAW (§ 811) — TRIAL — INSTRUCTIONS — WEIGHT OF EVIDENCE.

In a trial for murder, where declarations of defendant shortly after the shooting that he would kill all the family were received, an instruction that anything deceased said after shooting deceased to the effect that he had a notion to go back and kill the whole d____d outfit was admissible only as showing the condition of his mind at that time, and that whether it had any weight on that point was for the jury to determine, was erroneous as singling out a part of the evidence.

4. CRIMINAL LAW (§ 720) — TRIAL — REMARKS OF PROSECUTING ATTORNEY.

In a trial for murder, where the homicide was clearly proven, the prosecuting attorney's remark, "Men, it would be a disgrace for you to acquit the defendant under the testimony," was proper argument.

Walker, J., dissenting. Faris, J., dissenting in part.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Floyd H. Rogers was convicted of manslaughter, and he appeals. Reversed and remanded for new trial.

Charged with murder and convicted of manslaughter, defendant appeals from a judgment of the circuit court of Dunklin county fixing his punishment at two years in the penitentiary.

Defendant shot and killed one A. J. Lovins at a farm occupied by Thomas Walls, in Dunklin county, on Sunday, June 23, 1912. The circumstances surrounding and leading up to this tragedy were as follows:

In the early part of the year 1912, the defendant was hired to Thomas Walls as a farm hand. The family of Walls consisted of his wife, stepdaughter, and three sons, Elmer, Jack, and Tommie, all grown, or nearly grown. Thomas Walls will hereafter be referred to as Walls, Sr.

A courtship sprang up between defendant and the stepdaughter of Walls, Sr., which resulted in their marriage about six weeks before the tragedy. Walls, Sr., was very much displeased at the marriage, and, on account of the fact that they were not welcome at the Walls home, defendant and his wife went to board with one T. A. Blankenship, who resided some 200 yards from the Walls home. After the departure of defendant from the home of Walls, Sr., one A. J. Lovins (sometimes referred to in this opinion as "Bub") was employed to take his place as a farm hand.

On the day of the tragedy one Dora Stevens paid a visit to the Walls family. She is a niece of Walls, Sr., and was at that time engaged to marry Lovins, the hired hand. In going to town to meet her, Walls, Sr., Elmer Walls, and Lovins each procured a quart of whisky, of which Lovins and Walls, Sr., partook quite freely. During the day defendant and his wife came along the road by the home of Walls, Sr., and he invited them into his house. This was the first time Walls, Sr., had shown a disposition to be friendly with them since their marriage. They accepted the invitation and remained there until quite late in the afternoon.

Walls, Sr., Lovins, and defendant took several drinks of whisky together during the day, and, when night drew near, Walls, Sr., and Lovins were quite drunk, and defendant was partially drunk. At one time during the afternoon Walls, Sr., proposed to defendant and Lovins that they kiss all the women present. Walls, Sr., did kiss defendant's wife (his stepdaughter), and defendant kissed Dora Stevens; but if this incident caused any friction or ill will between the parties it does not appear in the evidence.

Defendant and his wife returned to Blankenship's (where they were boarding). After their departure Walls, Sr., and Lovins decided to attend a church service which was being conducted near by. Dora Stevens, believing that if they attended church in their then drunken condition they would get into trouble, tried to dissuade them from going, but failing in that effort she sent Jack Walls to request defendant to come back to the Walls home and help keep the drunken men away from church. She testified that she thought defendant could exert a greater influence over Walls, Sr., and Lovins than any one else. Pursuant to this request, defendant placed a revolver in his pocket and returned to the Walls home. On arriving there he found Walls, Sr., very angry over the alleged fact that somebody had stolen his whisky. Defendant asked Lovins and Elmer Walls who took the old man's whisky, whereupon Lovins replied: "You would not accuse me of stealing it, would you?" Defendant replied: "Some of you took it, and if you will give it to him, or give him a drink, he will get quiet." This remark seemed to anger Lovins very much, and he immediately began swearing and threatening to whip defendant unless he "took it back." Up to this point there was no conflict in the evidence. Some of the state's witnesses testified that Lovins struck defendant on the back with his hand and stated that defendant or he (Lovins) would get a whipping unless defendant took back what he had said. Defendant became angry and, drawing his revolver, threatened to shoot Lovins. Lovins continued to swear and make a disturbance, whereupon defendant proposed to one of the Walls boys that they procure clubs and beat Lovins to death. Lovins, according to the state's evidence, kept on quarreling, swearing, and challenging defendant to fight, until defendant shot him twice; the second shot producing almost instant death. The state's evidence further tends to prove that Lovins was entirely unarmed and was only seeking a fist fight or ordinary battery with defendant.

After the shooting defendant walked to the home of Blankenship, 200 yards away, put up the revolver, and took down a shotgun and loaded it, and, on being asked by Blankenship what he was going to do, replied: "Go back and kill every d____d one of them." Blankenship took the gun away from defendant, and he then remained at Blankenship's until arrested some hours later. On the part of the defendant there was slight evidence of a secret plan between Walls, Sr., and Lovins to assault defendant.

Within a few minutes after Lovins was killed, Walls, Sr., was heard to say that defendant would be sent to the penitentiary for 15 or 20 years, and that he would "get shet" of him for that length of time at least.

Defendant, testifying in his own behalf, stated that it was almost dark when Jack Walls came to Blankenship's and told him that Walls, Sr., and Lovins were angry, and that Dora Stevens and Mrs. Walls wanted him to come down to the Walls home; that they thought he (defendant) could do more with them than any one else. Defendant promised to go down there in about 15 minutes. Before starting down to Walls' a "curious feeling" came over him and he armed himself with a revolver. That Walls, Sr., had made threats against him, and that he "had no reason to know but what he meant it." That on his arrival at the Walls home he inquired of Mrs. Walls what she wanted with him. She replied that she did not want anything, and that if she had known that he was coming she would have told him not to come, but she did not inform him that there was any danger at hand. He further testified that he told Lovins and Elmer Walls to get Mr. Walls' whisky and give him some and he would be all right, whereupon Lovins pulled off his coat and started toward defendant but was stopped by Tommie Walls. Walls, Sr., hearing the loud talking, came out of the house and inquired about the trouble. Tommie Walls replied: "Nothing, only Bub (meaning Lovins) is out here cutting up." Walls, Sr., then remarked that he would see "that no one run over Bub." Defendant told Walls, Sr., that it was "all settled," whereupon he (Walls, Sr.) went off in the direction Lovins had gone. That Mrs. Walls again suggested that defendant go home, and he had walked to the edge of the porch when Walls, Sr., and Lovins again came on the scene. Walls, Sr., seized defendant and pushed him off the porch and pulled him around, facing Lovins, saying at the time, "That has to be settled." That Lovins cursed defendant and said, "You have got to take it back." That Walls, Sr., slapped Lovins on the back and said, "I will stay with you." Defendant stated that it was growing dark and he walked back 10 or 12 steps to keep out of the way of Lovins, Walls, Sr., and Elmer Walls, all three of whom pursued him; that he would have run but could not on account of a stove and wood pile which were behind him; that he then...