State v. Sterling, 33438.
| Decision Date | 17 May 1934 |
| Docket Number | No. 33438.,33438. |
| Citation | 72 S.W.2d 70 |
| Parties | STATE v. STERLING. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Cooper County; Nike G. Sevier, Judge.
James Sterling was convicted of murder in the second degree, and he appeals.
Reversed and remanded.
Jones & Wesner, of Sedalia, and John H. Windsor, of Boonville, for appellant.
Roy McKittrick, Atty. Gen., and William W. Barnes, Asst. Atty. Gen., for the State.
FITZSIMMONS, Commissioner.
Appellant, James Sterling, was charged in the circuit court of Cooper county with murder in the first degree for shooting and killing Robert Armstrong. Upon trial he was found guilty of murder in the second degree and his punishment was fixed at twenty-five years' imprisonment in the penitentiary. From the sentence and judgment he appealed to this court. Error is assigned to an instruction on murder in the first degree given on behalf of the state, to the refusal of the court to give an instruction on manslaughter, to exclusion of testimony, and to the exhibition to the jury of the clothing of the deceased.
I. The error, if any, in instruction No. 6 given on behalf of the state will not be reviewed. The reason is that the instruction authorized the jury to find the appellant guilty of murder in the first degree. But he was convicted of the lesser offense of murder in the second degree. This court has consistently ruled that, in these circumstances, any error in the given instruction is harmless. State v. Goodwin, 271 Mo. 73, 195 S. W. 725.
II. A statement of facts is necessary for an examination of the other assignments. The killing occurred on December 8, 1932, in a cornfield on appellant's farm in Lebanon township, in Cooper county. The deceased, Robert Armstrong, was about sixty-two or sixty-three years old. Appellant, Sterling, a deaf mute, was seventy-four years old at the time. Appellant had let twenty acres of his farm to Lyle Sprinkle, on a rental basis of one-third of the corn crop to Sprinkle, and two-thirds to Sterling, the corn to be divided by rows at gathering time. Both appellant and Sprinkle sold their shares of the crop to the deceased, Robert Armstrong. Testimony on behalf of the state was in substance as follows:
On the day of the shooting, Armstrong and several neighbors were gathering the corn and were loading it into wagons. Their plan of action was to gather the Sprinkle corn first. Appellant was also present. When the crew reached one end of the field, Armstrong counted off five rows of standing corn and directed the driver of the wagon to turn his team down the next row. Appellant, a deaf mute, uttered a squeal, and raised two fingers, to indicate that he wanted two more rows left standing as of his share. But the driver kept his team headed down the row, and both Armstrong and appellant Sterling approached each other. Armstrong declared that he would not stand for any more foolishness from appellant. The latter either kicked or kicked at or struck Armstrong; the state's witnesses not agreeing on the point. Armstrong in turn either struck appellant a blow with his fist and knocked him down, or he grappled with appellant, threw him to the ground and pummeled him; the state's witnesses again differing. Appellant, Sterling, rose from the ground and walked off toward his house, while Armstrong and the other men went down the disputed row, gathering corn.
About ten minutes after appellant left the field, he returned to the place where the men were working. John Hayden, one of the corn gatherers, was the nearest to appellant, as the latter approached the wagon and the men. Hayden was on the north side of the corn wagon, and Sterling came from the north. Armstrong at the time was on the south side of the wagon. Appellant, Hayden testified, had a pistol in his hand and when Sterling came within three feet of Hayden, he fired at Hayden, hitting him in the hip. He fired a second time, seemingly not at any particular person, and the bullet went into the ground. At the second shot, deceased, Armstrong, rushed at appellant, Sterling, threw his left arm around Sterling's neck and began to punch him with his right fist. At the time Armstrong was wearing canvas gloves with leather palms. While Armstrong was thus hugging Sterling with one arm and was beating him with his right fist, Sterling fired a third shot. The bullet pierced Armstrong's heart and he fell dead. Sterling toppled over upon the body. The other men took the pistol from appellant, lifted him from the corpse, and laid him aside. The coroner testified that there were powder burns on the skin about the bullet hole in Armstrong's chest.
The state's witnesses and the appellant were in agreement that the corn gathering began on Monday and that the tragedy occurred on the following Thursday morning. Appellant, on his own behalf, testified that on two days preceding the shooting he had disputes with Armstrong about the method of dividing the corn by rows. He stated that on Tuesday Armstrong made motions, indicating that he was going to dig a grave and put appellant into it. He also testified that on Wednesday Armstrong hit him with an ear of corn. The state's witnesses admitted that there had been some trouble between the men on the preceding days. Appellant testified in substantial agreement with the state's witnesses concerning the first trouble Thursday morning ending with Armstrong knocking appellant down. Concerning the shooting appellant testified:
He also testified that he lay upon the ground for a time after the shooting, dizzy, and not knowing exactly what had occurred. This condition he ascribed to the blows upon his head.
Some of the witnesses for the state testified that Armstrong had an ear of corn in his hand when appellant approached the wagon and began to fire. But they also stated that Armstrong was using the ear of corn to raise the side board of the wagon and that Armstrong did not have the ear in hand when he rushed at appellant.
On cross-examination of appellant, he testified: "
Neither did Hayden, by his own testimony, know at the time that he had been shot....
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...of murder in the first degree, but only of murder in the second degree. State v. McHarness, Mo.Sup., 255 S.W.2d 826, 829(4); State v. Sterling, Mo.Sup., 72 S.W.2d 70; State v. Porter, 276 Mo. 387, 207 S.W. Assignment No. 17 is that the court erred in giving Instruction No. 5 as it is not a ......
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