State v. Smart

• Decision Date: 09 November 1959
• Docket Number: No. 1,No. 47363,47363,1
• Citation: 328 S.W.2d 569
• Parties: STATE of Missouri, Respondent, v. Lyman SMART, Appellant
• Court: Missouri Supreme Court

Page 569

328 S.W.2d 569

STATE of Missouri, Respondent, v. Lyman SMART, Appellant.

No. 47363.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1959.

Harold D. Jones, New Madrid, for appellant.

John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was charged with murder in the first degree of one Louis McGee in New Madrid County, Missouri, on November 28, 1957. See Section 559.010 RSMo 1949, V.A.M.S. He was convicted of murder in the second degree and his punishment fixed at ten years' imprisonment in the state penitentiary. He has appealed and first contends that the court erred in not sustaining his motion for judgment of acquittal offered at the close of all the evidence. See Supreme Court Rule 26.10, 42 V.A.M.S.

On the evening of November 28, 1957, there was a basketball game in the high school gymnasium at New Madrid, Missouri, attended by many young people, including appellant and McGee and most of the witnesses who testified in the case. The state's evidence tended to show that after the game the Pipkins brothers, 'J. W.,' 'J. R.' and Percy, accompanied by Clinton Farr and Zachariah Jenkins, went to the Happy Hollow Cafe (also referred to sa a saloon) around 11 p. m. McGee was there when the three Pipkins' arrived and appellant arrived about 30 minutes later. Soon after appellant arrived, he and his brother Leonard, William Allen Dooley and a boy named Price got into an argument with McGee. Appellant and his brother Leonard had long knives, but after a time they put the knives in their pockets. Appellant then grabbed a chair and McGee also grabbed it and a scuffle ensued, but other parties separated them and no blows were struck. Later, McGee and the Pipkins brothers went outside to the Pipkins car to go home to Canalou, Missouri. However, the others came out and more words were exchanged between McGee and both Dooley and appellant and, after McGee had gotten into and out of and been pulled back into the Pipkins car several times, the Pipkins car was able to leave and started for Canalou. The state's evidence showed that it took about 20 minutes to get McGee out of the cafe and into the car.

Seven persons were in the Pipkins car, McGee, the three Pipkins, Zachariah Jenkins, Clinton Farr and a boy named Evans. J. W. Pipkins was driving. The Pipkins car proceeded west from New Madrid to the Highway 61 junction, where it stopped at the intersection for a truck to pass. Meanwhile, the appellant and his companions had gotten into their car (driven by Leonard Smart) and it arrived at the junction behind the Pipkins car. When the Pipkins car stopped, someone (not identified) in the Smart car threw a bottle and struck the Pipkins car. At that time the Smart car, according to the state's witness, contained eleven to thirteen persons, including appellant and his brother Leonard and their two sisters, the two Price boys and two or three of their sisters and William Allen Dooley. The Pipkins car started up, turned south on Highway 61, intending to go to Canalou by way of Lilbourn, but when it reached the Greyhound Bus Station about 100 yards down the road, the boys all agreed to turn back to see why their car had been hit and 'to see what they (those in the other car) were up to.' J. W. Pipkins turned the car around and drove back north, past the junction, where the Smart car was still stopped. As the Pipkins car slowed down and passed the Smart car at the intersection, someone threw another bottle and again hit the Pipkins car. The Pipkins car, however, did not stop there, but went on north on Highway 61 and stopped at Riley's cotton gin, about a mile north of the Highway 61 junction with the road into New Madrid. All of the passengers, including McGee, got out and waited for the Smart car, which they assumed would arrive shortly and stop.

About two minutes later, the Smart car pulled up and stopped behind the Pipkins car and appellant and all of the others got out. It was then about 12:30 a. m. It was a dark night and the car lights were left on the Smart car. McGee was standing to the right of the Pipkins car, facing south, when appellant got out of the Smart car. Appellant had a .22 rifle in his hands. He immediately walked to McGee and held this rifle about a foot away from McGee's face. McGee's hands were at his sides, and he had nothing in them. He told appellant to get the gun out of his face, but did not make any threats or call appellant any bad names. Appellant did not answer, but merely stood there, some ten seconds or longer. Another witness said five minutes or more. Appellant's sister and another man told appellant he would be a low-down dirty coward if he didn't shoot McGee. J. R. Pipkins tried to grab McGee by the arm and pull him away, but Dooley hit 'J. R.' with a bottle. 'J. R.' had a lug wrench and struck Dooley with it. Leonard Smart joined Dooley against 'J. R.' and, in five or ten minutes of fighting, 'J. R.' lost the lug wrench. In the meanwhile, McGee was trying to get the rifle from appellant. He succeeded in grabbing it, but appellant then pulled it away from him and shot him. The bullet struck McGee in the left chest, and he fell to the ground. Appellant then jumped in the Smart car with the others and drove away. The Pipkins boys and those in their car took McGee to Doctor Chandler in New Madrid. The doctor found a bullet hole about three inches above the navel and a little to the left. McGee lost consciousness and died while on the doctor's table. Death was caused by internal hemorrhage from the bullet wound.

Concerning the shooting, other state's witnesses said that when the Smart car stopped all of the parties in the car got out and appellant and McGee began talking and arguing. Appellant held the gun on McGee. 'It was slanted up like that.' McGee took the end of the gun and pushed it out of his face. McGee kept saying 'you will have to kill me before you run over me. * * * You will have to kill me first.' They were on the gravel road and 'they just kept backing up,' appellant kept backing up. J. W. Pipkins was 'trying to part them.' One of the girls threw some rocks into the crowd, the car lights were turned off and McGee was shot. McGee did not have anything in his hands, but as long as the witness could see him, 'he was just walking up on him' (appellant), until the witness heard a shot. McGee was five feet ten inches tall and weighed 150 pounds. His age was not stated, but he was not in school.

Another witness for the state, who got out of the Smart car when it stopped behind the Pipkins car, testified that after both groups were out of the cars, McGee and appellant started arguing at once and Pipkins and Dooley started fighting; and that appellant ran around the Smart car two or three times and got the rifle from the trunk and told McGee to stand back, but McGee kept going toward appellant. It was dark and witness was twelve feet away, but he didn't see anything in McGee's hand, nor did he see McGee strike appellant.

The evidence offered on behalf of defendant-appellant tended to show that when McGee entered the cafe he started arguing with Dooley, age 17 years, who had had prior trouble with McGee over Dooley's sister. The only knives displayed in the cafe were displayed by McGee and J. R. Pipkins. Appellant was outside when this occurred. Later, outside of the cafe when all involved were leaving, J. W. Pipkins showed a pistol to two of the girls in appellant's group. McGee also made threats outside the cafe and told appellant, if appellant and his crowd didn't fight them in town, they would follow them and fight out in the country, but appellant said he was going hime. At the highway junction, after the Pipkins car turned south and the Smart car north, the Pipkins car turned around and followed and passed the Smart car, and stopped about one mile out of town at the gravel road intersection. The girls in the Smart car started crying and stated they were afraid the others would shoot into the car with the pistol. They requested appellant to stop and let appellant's brother, Leonard Smart, try to talk the others out of fighting. When the Smart car stopped, various members of the McGee group were out with tire tools, a cotton hoe and other weapons. Dooley and Leonard Smart engaged in a fight with J. R. Pipkins, who had a tire tool, or a four-way lug wrench. McGee had a tire tool and started after appellant. Appellant ran and McGee pursued him, making threats and swinging at him with a lug wrench or tire tool. Appellant, in an effort to escape, circled the Smart car two or three times and ran across the ditch and back, while the others were fighting. Appellant reached into the trunk of the Smart car to get a weapon and found the rifle, which Dooley had used for rabbit hunting. Appellant did not know the rifle was in the trunk, but he grabbed it and McGee and he engaged in a scuffle over the gun. Appellant recovered it and later McGee grabbed it again and further scuffling followed. McGee struck appellant on the left arm with the tire tool and lug wrench and later struck him under the right eye, knocking him down. Appellant got up and took the gun from McGee and then continued backing up and telling McGee 'to stay back off of me * * * that I didn't want to hurt him' while McGee kept coming on and making threats to the effect that, if appellant did not kill him, he would kill appellant and telling appellant to shoot. He was still coming toward appellant when appellant shot him. Appellant was afraid of McGee, afraid McGee was either going to hurt or kill him, 'he seemed like he was trying to.' At the time appellant fired he was not aiming the rifle at McGee and didn't intend to shoot him, he intended to frighten him. He said he shot in defense of himself. Appellant was 18 years old, 6 1/2 feet tall and weighed 155 pounds.

In support of the contention that the court erred in overruling appellant's motion...