State v. Rozell

• Decision Date: 25 January 1926
• Docket Number: No. 25768.,25768.
• Citation: 279 S.W. 705
• Parties: STATE v. ROZELL et al.
• Court: Missouri Supreme Court

279 S.W. 705

STATE v. ROZELL et al.

No. 25768.

Supreme Court of Missouri, in Banc.

January 25, 1926.

Appeal from Circuit Court, Christian County; E. P. Dorris, Judge.

Press W. Rozell and another were convicted of murder in the second degree, and they appeal. Affirmed.

R. C. Ford, of Forsyth, and Moore, Barrett & Moore, of Ozark, for appellants.

Robert W. Otto, Atty. Gen., and Wm. L. Vandeventer, Asst. Atty. Gen., for the State.

WALKER, J.

Appellants were charged by information filed in the circuit court of Taney county with murder in the first degree. A change of venue was granted to Christian county, where, upon a trial, the appellants were convicted of murder in the second degree, and the punishment of each was assessed at 10 years' imprisonment in the penitentiary. From these judgments they appeal.

The Record.—There was a former conviction of these appellants of this crime, which, upon appeal, was reversed and remanded by this court. 225 S. W. 931, 16 A. L. R. 400. When this case was remanded appellants were granted a change of venue to Douglas county. Upon the transmittal of the record in the case to that county, and its filing in the circuit court there, the case was docketed, for trial, and the prosecuting attorney of Taney county entered a nolle prosequi, and thereafter filed in the circuit court of Taney county the information upon which the appellants were tried and convicted. A change of venue was then taken by the appellants to Christian county. Upon the case being called for trial in that county, before announcing ready, the appellants filed a plea in bar, alleging their arrest, trial, and conviction in Taney county, their appeal to the Supreme Court and the reversal of the judgment, their subsequent discharge by the nolle prosequi filed by the prosecuting attorney the circuit court of Douglas county, and the filing of the charge upon which their former conviction was had, and asked that the pending information be abated, and that they be discharged from the offense therein preferred. This plea was demurred to by the state and the court sustained the same and overruled the plea. This ruling is assigned as error.

The Facts.—On the night of August 5, 1919, two sons of Abner Holcomb, the deceased, found their father lying by a roadside in the neighborhood of their home. There were several bullet wounds in his body and other wounds upon his head, apparently inflicted by a blunt instrument. The deceased was alive, and stated the cause of his condition. He was taken to his home nearby, where he died about 8 or 9 o'clock the following morning. The evidence showing the character of the homicide rests upon statements made by deceased from the time he was found by his sons until shortly before his death. His sons were looking for him because he had failed to return home. When they found him, he said: "The Smith and Press Rozell have killed me," or that in substance. After he was brought to his home, he stated that he could not get well and then told what occurred when he was assaulted by appellants. These statements, as their terms disclose, were admitted in evidence as dying declarations. The deceased stated, in substance, that he went down to the creek to bathe and to look after his hogs. While he was sitting down putting on his shoes the appellants rode down to the creek near at hand on their horses. They came up to the deceased, cursing and abusing him, and Smith asked the deceased which of them (referring to deceased and his two sons) had cut his steer. Deceased denied cutting the steer, and asked who said he had done it. Smith told him, and deceased again denied it. Rozell then told Smith to "shoot the d—d old son of a bitch. This is as good a time as we will ever get." Smith then went to shooting. After ' this both of the appellants shot deceased and marched him along through the lane. They would order him to go a piece and to stop, when they would shoot him again. When they shot him in the thigh he fell, and as he fell Rozell jumped off his horse and beat the deceased with rocks, and cursed him, and told him if he had anything to say it was time he was saying it; that he was nothing but a "down go" and a pest to the country. They then rode off and left him lying in the lane, where he was found by his sons.

Rozell testified to the facts attending the assault as follows:

"Well, we was watering our horses at the creek. Smith looked over into the field on Holcomb's side and seen some hogs in the field. Smith saw a bunch of Holcomb's hogs in the field while the horses were drinking. He said he was going to kill them if Holcomb couldn't keep them out. He rode out like he was going up the road, and Holcomb came out from behind a brush pile. He was carrying some rocks. He said, `Your are going to kill them, are you?' Ibe (Smith) told him if he didn't do something with the hogs he was going to kill them. Holcomb drew back to throw his rocks, and the (Smith) told him not to do that, or something like that. Holcomb says, `You are the, son of a bitch that cut my wire, you can't kill my hogs,' and he went to throwing, rocks at Ibe. The first rock missed him and the next rock hit him in the side. Ibe's horse went over to the left. About that time Ibe jerked out his gun and went to shooting at him. Holcomb kept throwing rocks. Smith shot, I don't know how many times, just as fast as he could pull the trigger. Holcomb was throwing rocks all the time. About that time the gun stuck, anyhow Smith quit shooting. Holcomb ran around the brush pile and come back on the other side with his rocks. Smith went off of his horse. By that time both of them began throwing rocks, and Smith hit him two or three times, and the last lick he hit him he knocked him down on his all fours. Holcomb got up and got his hat and started up the road, saying that he would kill us if he had to kill us from the brush. Smith's mare whirled around where I was when he got off of her, and I reached out and got the reins. Smith got on his horse and we went back around the point towards Smith's house."

Smith's testimony was as follows:

"When we rode in to the creek, I rode in just a little above and Rozell just below the road. While our horses was drinking, I noticed one bunch of hogs over in the cornfield on one side of the lane and another bunch over in the cornfield on the other side. They were Mr. Holcomb's hogs. I believe I remarked that I was going to kill them if he didn't do something with them. They had run in the field all summer, and I wasn't going to have them eating my corn up. I started out of the creek, and as I rode out Mr. Holcomb come out from behind a little brush pile there. He says, `You are going to kill them, are you?' and I said, `I am going to kill them if you don't do something with them. I ain't going to have them eating my corn.' He grabbed up some rocks, and says, `You are the son of a bitch that cut my wire, and you can't kill my hogs.' I rode a little ways, just a few steps, and he began throwing rocks at me. I think the second or third rock hit me. I had a little old pistol in my pocket. I jerked it out, and went to shooting at him. I was on my horse when I was shooting at him. The horse was whirling around, and I was dodging the rocks. I don't know how many shells there were in the gun. There could have been seven if it was full. But there might not have been. I don't know how many I had in there. After I stopped shooting he kept throwing rocks, and I thought I had missed him all the time. My horse got around in the brush there, and I slid off the horse on the other side from him, and I got me some rocks, and we had a little battle. About the second throw I knew I had hit him. He jerked his arm up over his head like that. I couldn't tell where I had hit him. The first time I hit him I didn't knock him down. The second time I hit him he fell on his knees. When he got up and picked up his hat, he said, `I'll fix you if I have to get you from the brush.' I went back, and Mr. Rozell had caught my horse. I got on the horse and rode on back. I didn't know "I had hit him at all with the gun. I thought I had missed him all the time until I hit him with the rocks. We were both throwing rocks. When he started up the lane, I looked back, and I saw what I thought was a gun up the lane. I threw rocks at Holcomb because I thought he was going to knock me off my horse with rocks. I thought I was going to be hurt. I knew he was good with rocks."

This testimony of the appellants tended to show that Rozell took no part in the shooting or rock throwing, and that Smith acted in self-defense. Deceased was about 64 years old, was in poor health, short of stature, and weighed between 120 and 130 pounds. The appellants were much younger men. There was evidence of threats against appellants made by deceased, both communicated and uncommunicated. The reputation of deceased for truth and veracity and as a quarrelsome, turbulent, and dangerous man was shown by witnesses for the appellants. The state introduced evidence to the contrary and to prove that the deceased bore a good reputation as a quiet, peaceable man. Appellants introduced evidence tending to show that they each bore good reputations for peace and quietude.

The foregoing constitutes the substance of the evidence. Other facts will, if necessary, be reviewed in the discussion of the assignments of error.

The trial court instructed as to each appellant upon murder in the second degree; that, if the jury found Roach not guilty of murder in the second degree, they should acquit him. As to Smith, the jury was also instructed upon manslaughter and self-defense. An instruction upon the good character of the appellants was also given. Other required instructions in cases of homicide were likewise given. We note only the ones called for in the errors assigned.

I. The first assignment is that the court erred in overruling appellants' plea in bar because of former...