State v. Rollins

• Decision Date: 15 March 1910
• Parties: STATE v. ROLLINS.
• Court: Missouri Supreme Court

126 S.W. 478

226 Mo. 524

STATE v. ROLLINS.

Supreme Court of Missouri, Division No. 2.

March 15, 1910.

1. INDICTMENT AND INFORMATION (§ 189) — HOMICIDE — DEGREES.

Under Rev. St. 1899, § 2369 (Ann. St. 1906, p. 1457), providing that, on an indictment for any offense consisting of several degrees, defendant may be convicted of any degree inferior to that charged, an indictment or information for murder in the first degree embraces every degree of criminal homicide, so that by election the prosecution may be for murder in the second degree, and the charge may be on manslaughter in the lowest degree.

2. HOMICIDE (§ 105) — JUSTIFIABLE HOMICIDE — MAKING ARREST.

The right to kill, if necessary in making an arrest, has nothing to do with the case, defendant's own testimony showing that he did not indicate to deceased that he had come to arrest him, and that all he said to him was "Halt," and that he did not shoot in an effort to arrest him, but merely to intimidate and frighten him.

3. HOMICIDE (§ 282) — MANSLAUGHTER — CULPABLE NEGLIGENCE — EVIDENCE.

Evidence held to justify the submission of the question of negligence and carelessness of defendant in firing into the room of deceased, which showed a lack of regard for human life, justifying a conviction of manslaughter.

4. CRIMINAL LAW (§§ 755½, 814) — INSTRUCTIONS.

A requested instruction submitting hypotheses entirely unsupported by the testimony, and being at best a comment on the testimony which would have been improper for the court to make, was properly refused.

5. CRIMINAL LAW (§ 977) — ASSESSING PUNISHMENT.

By express provision of Rev. St. 1899, § 2649 (Ann. St. 1906, p. 1576), the jury having found a verdict of guilty, and failed to assess the punishment, it is for the court to do so.

Appeal from Circuit Court, Dunklin County; J. L. Fort, Judge.

Williams T. Rollins was convicted of manslaughter in the fourth degree, and appeals. Affirmed.

W. S. C. Walker, for appellant. E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

GANTT, P. J.

This prosecution was commenced by information in the circuit court of Dunklin county April 21, 1908. The information charges murder in the first degree of J. A. Leftwich at said county on the 19th of October, 1907. Afterwards, at the May term, 1908, the prosecuting attorney elected to proceed for murder in the second degree only, and thereupon the defendant was duly arraigned and pleaded not guilty. At the same term he was put upon his trial and convicted of manslaughter in the fourth degree, and sentenced to the penitentiary for two years, and from that sentence he has appealed in due form.

The facts are not intricate; indeed, there is little substantial conflict in the testimony for the state and that for the defendant. The evidence shows that on the 19th of October, 1907, the defendant was the marshal of the town or city of Cardwell in Dunklin county, and that Mr. J. A. Leftwich, who was designated by all the witnesses as "the old man," arrived at said city on an afternoon train. He was somewhat intoxicated, enough so as to talk loud and boisterous. He obtained lodging at the hotel of Mrs. Brewer. After supper that evening, he sat and talked with her and her daughter, Mrs. Williams, until about 9 o'clock, and then retired to his room upstairs. Some time after he had gone upstairs, Mrs. Brewer and her daughter heard a disturbance up there, and went up and found Mr. Leftwich holding Williams, the husband of Mrs. Williams, and swearing and cursing him. Mrs. Brewer was afraid he would hurt Williams, and got between them, and sent Williams downstairs and out of the way. After that Mrs. Brewer succeeded in quieting Leftwich, and got him to lie down on the bed. He had taken off his coat and shoes, and Mrs. Brewer stayed by the bed to keep him quiet, but it appears that Mrs. Williams, the daughter, had become very much excited, and she telephoned for the marshal, and, being unable to reach him in that way, she sent a Mr. Nichols, a boarder in the hotel, after the marshal. The testimony shows that Nichols found the defendant, the marshal, at the restaurant of John Warren. He called the defendant out and said to him: "There was a man down at Mrs. Brewer's who had run Mr. Williams away from there, and threatened to shoot him, and Mrs. Brewer wanted him, the defendant, to come down there and take charge of the man." Defendant said he would be there in a minute, to which Nichols responded: "Minute nothing. She wants you right now." In a few minutes the defendant came out of the restaurant, and started to the hotel with the witnesses by the name of Barger and Nichols. Before starting, however, defendant gave Barger his revolver, and borrowed another revolver from a Mr. Pool. Before going directly to the Brewer Hotel, the defendant left the other two men on the street, and went to the home of Henry Osborn, a son-in-law of Mrs. Brewer's, and waked him, and said to him: "I have come over to get you to help take a man out of your mother-in-law's house. He is raising thunder and has got a big gun on him. I do not know much about the house. I do not know how to get around in there." Defendant then waited until Osborn dressed, and he and Osborn, Barger, and Nichols all proceeded to the Brewer Hotel. Upon arriving at the hotel, there was no unusual noise, but he went right on up the stairs, and, according to his evidence, there was no light in the hall, except that which came from an open door in the left-hand room at the head of the stairs. The evidence varies somewhat as to the point at which he met Mrs. Brewer and Mrs. Williams. Mrs. Brewer says she passed him about the second step going down from the top; Mrs. Williams having gone in advance. The defendant says that, when he started up the steps, he saw Mrs. Williams standing out in front of the door in the light which came from the lamp in the room in which the deceased, Leftwich, was, and she called to her mother, and said: "Mama, come on. Here is the marshal now." And he went right on up. He said nothing to Mrs. Williams because just about that time Mrs. Brewer was coming out of the room and he considered her the one to consult, and he thought he met her something like halfway down the steps. The stairway consists of about eight or nine steps, and he said to Mrs. Brewer: "Where is that man, and what do you want me to do with him?" And she said: "He is up there in that room. I want you to take him out of my house." "I do not remember that I said `All right,' but that is what I meant, if I did not say it, and passed on." Mrs. Brewer says that, when the marshal came, she was upstairs sitting by the side of the bed with Mr. Leftwich, the deceased. When the marshal came, her daughter said to her: "Mama, the marshal has come." And she turned to the deceased and said, "The marshal is coming," and she got up and started to the door, which was open. If the deceased said anything, she did not remember it. He was lying on the bed when she told him the marshal was coming. When she came out of the door, she did not remember closing it. When the door to the room is pushed back far, it will catch to the ceiling. She remembered when she first went in she pushed the door back and it caught against the ceiling. She does not remember exactly where she met the defendant and the other two men, Barger and Osborn, but, if it was not right at the landing, it was on about the second step, or, at least, she halted on the second step from the top. As she passed the defendant, he had a pistol in his hand, and Barger also had one in his hand. She had no recollection of saying anything to the defendant about what to do with Mr. Leftwich. The first words that she remembers saying was after the second shot was fired, when she asked, "Have you killed him?" Then she started downstairs. It all happened so quickly she could not tell what time passed between the first and second shots, but, after the second shot, she went downstairs rapidly, and was in the hall below when the third shot was fired. According to her recollection, the defendant was nearly opposite the door to the room in which Leftwich was, nearly in front of it, when he fired the first shot. She did not see anything more, she says. She heard the defendant say "Halt!" before he shot, and kicked the door after the first shot.

According to the defendant's testimony, when he got to the top of the stairs, he went in front of the door and standing in front of it with the pistol in his hand. He says the door was not entirely open, but about half open, but he saw Leftwich standing up and the old man started towards the door. He details what happened in this way: "I thought I would stop him and I throwed the gun up with both hands, and he got so near to the door that I told him to halt or stop, and I seen he was not going to stop at any rate, and I pulled the gun off immediately and fired, and he never made any halt. He just come ahead, and by that time he got to the door, well, that surprised me, because he was very close to me when I shot. I had no intention of killing him then. Of course, I could have done it, but I did not want to anyway. I thought he would stop, but, as he slammed the door to, he did not get it fastened. It caught my pistol, and I kicked the door with my foot until I got it open. When I kicked on it, he did not have sufficient hold on it to hold it to, but the door went open and come back." By the opening of the door, he got his pistol free and tried to push the door open. Then he says: "I just stepped back behind the door, facing like, and fired a couple of shots through the lower part of the door, and I thought they would intimidate him some more. * * * Fellow does not know just exactly what he will do in a case like that." Asked for what purpose he shot the two shots through the door, he answered: "I did not want to hit him; did not want to kill him. His mere action in coming towards me did not...