State v. Smith.

• Decision Date: 24 November 1908
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

113 S.W. 1062

214 Mo. 245

STATE v. SMITH.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

1. CRIMINAL LAW (§ 814) — INSTRUCTIONS — ISSUES.

Where accused showed that he killed decedent in defense of his person against decedent's illegal assaults, and the court charged on the law of self-defense and manslaughter in the fourth degree, a charge submitting the issue of the rights of the parties in certain premises when the homicide occurred which was the cause of the difficulty was properly refused.

2. CRIMINAL LAW (§ 1156) — NEW TRIAL — CONFLICTING EVIDENCE — FINDINGS — REVIEW.

Where, on a motion for a new trial for incompetency of a juror, two witnesses testified that the juror had, prior to his qualification as a juror, expressed the opinion that accused ought to be convicted, and the juror as a witness positively denied the statements, the overruling of the motion will not be disturbed, in the absence of any abuse of discretion.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

J. B. Smith was convicted of murder in the second degree, and he appeals. Affirmed.

See 207 Mo. 24, 105 S. W. 598.

James Orchard, S. A. Cunningham, J. B. Searcy, and L. M. Searcy, for appellant. Herbert S. Hadley, Atty. Gen., and F. G. Ferris, Asst. Atty. Gen., for the State.

GANTT, C. J.

This is a prosecution commenced on the 24th day of September, 1905, by the prosecuting attorney of Shannon county, before a justice of the peace, charging the defendant with having feloniously, willfully, deliberately, premeditatedly, and with malice aforethought shot and killed John W. Blackburn at said county on the 24th day of September, 1905. A warrant issued, and the defendant was duly arrested. The preliminary trial was set for October 2, 1905, and on that day the defendant waived examination and was admitted to bail in the sum of $5,000 to appear at the regular March term, 1906, of the circuit court of said county. The case was continued at the March term to the September term, 1906, and at the September term, 1906, the prosecuting attorney filed an amended information charging the defendant with murder in the first degree in the killing of said Blackburn. As the information is in all respects sufficient under repeated adjudications of this court, it is unnecessary to set it forth at length. At the same term of the court, the prosecuting attorney elected to prosecute for murder in the second degree, and thereupon the defendant was duly arraigned and entered his plea of not guilty, and the trial was had before a jury, who returned a verdict of guilty of murder in the second degree and assessed the defendant's punishment at 18 years' imprisonment in the penitentiary. Within 4 days thereafter the defendant filed his motion for new trial, which was overruled by the court, and the defendant saved his exceptions. In due time the defendant prayed and was granted an appeal to the Supreme Court. At the October term, 1907, of this court, it appeared that the circuit court had failed to enter a judgment and sentence, and thereupon, upon the application of the Attorney General, the record was remitted to the circuit court to cause the defendant to be brought before it and sentenced in accordance with the verdict of the jury. And it appears from the record now before us that on the 12th day of March, 1908, the circuit court duly passed sentence upon the defendant in accordance with the verdict, and on the same day an appeal was granted to this court from the judgment and sentence.

The testimony on the part of the state tends to show that on September 24, 1905, the defendant and the deceased, Blackburn, were each cultivating land on the farm of Mrs. Elizabeth Chilton in Shannon county. It would seem that the defendant had leased the land from Mrs. Chilton, and afterwards rented the land which the deceased (Blackburn) occupied to the said Blackburn, and moved out of one of the houses on the premises, and gave Blackburn the right to occupy the house and land which he was to cultivate. On the premises rented to the deceased there was a horse lot, a barn or stable, which was used in connection with the house that the deceased occupied. This horse lot was from 25 to 50 yards from the house which the deceased occupied. There was a passageway or wagon road through this horse lot, one gate leading from the public road into the lot and another one leading out on the other side of the lot into the field, in which both the defendant Smith and the deceased Blackburn had their crops planted. There was evidence on the part of the defendant that, when he rented to the deceased, defendant reserved the right to go through the lot to his crop and the right to occasionally use the stable. Mrs. Laura Bell, who was the wife of the deceased, Blackburn, at the time he was killed, but prior to the giving of her testimony in this case had become the wife of one Bell, testified that she and her husband, the deceased, on the day of the killing, had been on a visit to a neighbor's house, and, as they approached their home on the said rented premises, the deceased (Blackburn) went on ahead of her; he turned up a road that went to the barn. The defendant, Smith, and one John Ipock were in the barn lot as the deceased approached the fence near where the defendant stood. He put down a kettle he was carrying in his hand, and defendant threw a hammer at him and started back. Defendant then drew a revolver from his pocket and shot at Blackburn, whereupon Blackburn said, "Don't shoot me, Joe, don't shoot," and turned and got over the fence just below the gate from the defendant; thereupon the deceased started and was about half stooped over when the defendant fired two shots, and Blackburn fell dead.

A daughter of the deceased, Bertha Blackburn, about 15 years old, testified that her father was killed on Sunday; that, while her parents were visiting a neighbor, the defendant Smith and John Ipock came to her father's home to nail up a fence or fix a gate. Witness had been getting out pine knots to start a fire, and saw her father and mother coming up the road. She saw her father turn towards the defendant, and she called to him, as she said she had an idea they were going to have a quarrel. Her father dropped his kettle by his side and said to defendant, "Smith, who ordered you on my premises?" and defendant said he ordered himself. Thereupon her father, the deceased, told him that if he had any business down the road he had better be going. When defendant fired the first time, the deceased was on the outside of the fence, but then jumped over the fence, and as he did so defendant's pistol snapped at him. Thereupon the deceased said, "Joe, don't shoot me."

John Ipock testified that he was at the defendant's farm with the defendant on Sunday, the day Blackburn was killed. He and the defendant passed the house in which Blackburn lived and saw a calf in Smith's corn, and they later returned there with tools and a plank to fix a gate. As they were finishing the repairs on the gate the deceased approached, and, after saluting Ipock, said to the defendant, "Joe, who gave you orders to come on my premises?" Defendant replied, "By G____ d____, I took it." Deceased then said, "If you have any business, you had better be going." Deceased then reached down towards the ground, but witness did not know whether he was setting the vessel down or not. Deceased then stepped closer, and as he did so defendant threw the hammer at him, deceased falling back on the ground and the defendant getting back of the gate, which swung east. When defendant came back he had his pistol in his hand, and Blackburn said, "Joe, don't shoot," and the witness said: "No, I do not want to see any of that while I am here." The defendant thereupon said to the deceased, "Now beg. You went on the straw stack and watched for me." Deceased replied: "Joe, that is a lie; I never." Defendant then shot, but seemed to miss Blackburn, who got over the fence and started. At the same time defendant snapped his pistol and then fired the fatal shot. This witness did not see the deceased have any rock or weapon in his hand. The...