State v. Solan

• Decision Date: 23 December 1918
• Docket Number: No. 21063.,21063.
• Citation: State v. Solan, 207 S.W. 782 (Mo. 1918)
• Parties: STATE v. SOLAN.
• Court: Missouri Supreme Court

207 S.W. 782

STATE v. SOLAN.

No. 21063.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from Circuit Court, Macon County; V. L. Drain, Judge.

George F. Solan was convicted of murder in the first degree, and he appeals. Reversed, and cause remanded.

J. H. Whitecotton, of Moberly, R. W. Barrow, of Macon, and W. Hays, of Hannibal, for appellant.

Frank VT. McAllister, Atty. Gen., and Henry 3. Hunt, Asst. Atty. Gen., for the State.

WHITE, C.

The defendant was charged by information with murder in the first degree, having shot and killed one Lou James Threlkeld in Shelby county, September 20, 1917. After change of venue to Macon county, on January 11, 1918, the defendant was convicted of murder in the first degree, and his punishment assessed at imprisonment in the state penitentiary for life, and from this judgment his appeal is taken.

The homicide occurred during the Shelby county fair held at Shelbina. One Ray Dryden and his wife attended the fair, and while walking along what is called "the main driveway" near the amphitheater, met the defendant George Solan. The state offered evidence to show that Bryden was walking a little way from his wife, and Solon on meeting her asked her where she was going. Bryden turned to the defendant, and told him it was none of his business where she was going. The defendant thereupon struck Bryden three times, the third blow knocking him down.

According to the testimony offered by the defendant he said nothing to Mrs. Bryden. Bryden was under the influence of liquor, and made an insulting remark to him, whereupon he "struck Bryden one blow with his open hand, causing him to stagger.

Solan turned away and ran to another part of the grounds, and entered a tent belonging to one Frank Leitz; Dryden followed him to that point. Leitz had a concession from the managers of the fair, and operated a jewelry wheel; Solan had a concession for a doll rack. It is not definitely stated, but it seems that Solan had a tent near the tent of Leitz. It also appears that he and Leitz were friends, and he had previously visited Leitz's tent. According to the state's witnesses, the tent of Frank Leitz was about 100 yards from where the first altercation occurred, and according to the defendant's witnesses about 200 yards. The state's witnesses testified that when Solan fled to this tent Bryden followed at a fast walk, and in turn was followed by a curious crowd, intent upon seeing what would happen. The testimony of witnesses for the defense was to the effect that Bryden and five or six of his friends and companions pursued Solan to that tent. Bryden and a number of other witnesses for the state testified that there was no such pursuit. When Bryden reached the tent Leitz came out of it, and, after some words with Bryden, struck him. Soon after that Solan fired from the tent at Bryden, using a revolver belonging to Leitz, and the shot struck Threlkeld just above the heart, causing instant death. Threlkeld was one of the curious crowd. It was not claimed by defendant that he was one of Bryden's pursuing friends.

Solan was a large man, and much more powerful than Dryden, who was tall, but weighed only 120 pounds. Bryden had been drinking, and the defense, endeavored to show, as stated, that he was under the influence of liquor. At any rate he seemed to be smarting from the battery which Solan had inflicted at the first encounter, and was eager to renew the combat in which he apparently had small chance of success. His state of mind is explained by himself on cross-examination, thus:

"Q. You were after him yourself? A. Yes, sir.

"Q. How close were you to him? A. Quite a little ways.

"Q. What were you going to do to him? A. suppose I was going to get knocked down again.

"Q. You were looking for a knockout, were you? A. I was willing to take it.

"Q. Were you following him to get hit again? A. No, sir; I wanted to hit him."

This indicates that he was desirous of committing assault and battery upon Solan, provided he was able to accomplish it, of which he seemed in doubt. This purpose of his however, was not communicated to Solan. He said nothing to indicate it, and Solan could only infer it from the fact that Bryden followed him.

I. Defendant was found guilty of murder in the first degree, and complains here that the evidence did not warrant an instruction, authorizing such a verdict.

There was evidence which tended to show that the defendant went to the tent for the purpose of procuring the revolver with which he committed the homicide. He knew that Leitz had it, and knew where he kept it. Bryden had no weapon, and the most that could be inferred from his conduct, according to the testimony, was a desire and an effort on his part to engage in a further unequal fist fight with the defendant. When he reached the tent he raised the flap, saw the defendant in the tent, and said, "Th...