State v. Strawther

• Citation: 116 S.W.2d 133,342 Mo. 618
• Decision Date: 03 May 1938
• Docket Number: 35076
• Parties: The State v. N. A. Strawther, Appellant
• Court: United States State Supreme Court of Missouri

116 S.W.2d 133

342 Mo. 618

The State v. N. A. Strawther, Appellant

No. 35076

Supreme Court of Missouri

May 3, 1938

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Reversed and remanded.

W G. Bray and Ward & Reeves for appellant.

(1) The court erred in overruling defendant's plea in abatement to the information filed in this cause. The court should have sustained the defendant's plea in abatement to the information. The plea in abatement was filed before the defendant entered his plea to the information and before the trial. The reasons assigned for the error of the court in overruling the defendant's plea are: (a) That a certified copy of the testimony in the preliminary, as required by statute, was not furnished either the defendant, or the jailor or the sheriff holding the commitment of the defendant; and (b) That the testimony taken at the preliminary was not certified to and filed with the circuit clerk as required by law. Sec. 3489, R. S. 1929; State v McDaniel, 80 S.W.2d 185; Ex parte Glenn, 78 S.W.2d 108; State v. Ancell, 333 Mo. 26, 62 S.W.2d 443; State v. Bradford, 324 Mo. 695, 24 S.W.2d 993; State v. Smith, 228 S.W. 1057. (2) The court erred in admitting in evidence on behalf of the State the alleged dying declaration of the deceased, and in admitting incompetent and immaterial portions of said dying statement, over the objections and exceptions of the defendant at the time. (a) The court erred in admitting in evidence the alleged dying declaration because there was no proper or sufficient foundation laid for its introduction. The alleged dying declaration was prepared by the prosecuting attorney and the circumstances of its execution do not show that the deceased had at that time abandoned all hope of recovery and then believed that his death was imminent. State v. Simon, 50 Mo. 370; State v. Elkins, 101 Mo. 344; State v. Johnson, 118 Mo. 491; State v. Horn, 204 Mo. 528; State v. Kyle, 225 S.W. 1012; State v. Kunkel, 289 S.W. 865; State v. Wilks, 278 Mo. 481, 285 S.W. 706. (3) The court erred in giving to the jury Instruction 11 over the defendant's objections and exceptions at the time. This instruction is clearly erroneous in that it puts the burden of proof on the issue of mitigating circumstances or justification upon the defendant. The burden of proof at no stage of the case is upon the defendant in a criminal case, and this burden of proof never shifts, and the giving of this instruction was erroneous, was confusing and was a flat contradiction of other instructions in the case. However, no other instruction could cure that part of this instruction which specifically tells the jury that the burden of proof of proving circumstances of mitigation or justification, if not shown by testimony offered by the State, is upon the defendant. Such an instruction as No. 11 has always been declared to be reversible error in a criminal case. State v. Shelby, 333 Mo. 1054; State v. Malone, 327 Mo. 1217; State v. Sanford, 317 Mo. 865; State v. Hardelein, 169 Mo. 579; State v. Wingold, 66 Mo. 181.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in refusing to sustain the plea in abatement. Secs. 3480, 3489, R. S. 1929; State v. Ancell, 62 S.W.2d 443; State v. Lloyd, 87 S.W.2d 418; State v. McDaniel, 80 S.W.2d 191; State v. Smith, 228 S.W. 1060; Ex parte Glenn, 78 S.W.2d 108. (2) The court did not err in admitting the dying declaration of Arch Shrum. 30 C. J., secs. 510, 511, pp. 272, 274; State v. Clift, 285 S.W. 706; State v. Colvin, 226 Mo. 446; State v. Craig, 190 Mo. 339; State v. Constitino, 181 S.W. 1157; State v. Gibbs, 186 S.W. 988; State v. Horn, 204 Mo. 528; State v. Majors, 44 S.W.2d 167; State v. Parker, 172 Mo. 191; State v. Peak, 237 S.W. 466; State v. Reed, 137 Mo. 135; State v. Thomas, 180 S.W. 886; State v. Wilks, 213 S.W. 118. (3) The court did not err in giving Instruction 11 on the part of the State. State v. Alexander, 66 Mo. 148; State v. Roberts, 242 S.W. 669; State v. Jones, 78 Mo. 278; State v. Wingold, 66 Mo. 181.

OPINION

Leedy, P. J.

The appellant, N. A. Strawther, and his two sons, Joe and Woodrow, were jointly charged by information in the Circuit Court of Dunklin County with murder in the first degree, in having shot and killed one Arch Shrum. An application for a change of venue was sustained, and the case was transferred to the Stoddard Circuit Court, where a severance was ordered, and appellant placed upon his separate trial. He was found guilty of manslaughter, and sentenced to a term of ten years in the penitentiary, and he appeals.

The sufficiency of the evidence is not challenged. The alleged homicide grew out of a boundary dispute between Joe and Woodrow Strawther, sons of appellant, and Arch Shrum, the deceased. The Strawther boys, as tenants, farmed 80 acres of land in Dunklin County. Shrum, the deceased, was tenant on a tract immediately adjoining on the south. A controversy arose between them as to whether one row of Shrum's cotton was not over the line on the Strawther boys. It appears that the Strawther boys had plowed up the offending row, and on May 29, 1935, Shrum had caused the same to be replanted. On the afternoon of that day a difficulty ensued wherein Shrum challenged the Strawther boys to fight. At that time an unsuccessful effort was made to locate a corner post or stob. Appellant was not present at that time, but the next morning the fact of the difficulty was communicated to him by his sons, as well as an alleged threat by Shrum to kill his said sons. The three Strawthers then went to Kennett to see the owner of the land in an effort to get the boundary line established. They were given some figures and a plat of the land and advised to measure the land and establish the line and see if they could get a satisfactory settlement with Shrum. That afternoon measurements were made in accordance with the data furnished by the owner of the land, and a stob was set marking the corner. An encounter ensued between appellant and his sons on the one hand and Glen Nugent, an employee of Shrum on the other, in which Nugent and Joe Strawther exchanged blows. Olivett Shrum, the deceased's daughter, was preparing to take Nugent to Senath to see a doctor on account of a cut he had received on the head. She testified that Joe Strawther threatened that they would go to the field where Arch Shrum was working, and "get" him. The evidence on the part of the State tended to show that Olivett Shrum followed them, and that their car did stop in the road about 100 feet from where her father was working in the field; that "after Olivett Shrum got out of the car she saw the Strawthers and her father, the deceased. Her father was running southeast toward Mattic's place and the Strawthers were pursuing him. The witness took the pistol out of her purse and started running toward her father. The appellant was running in front and was passed by Joe Strawther who overtook Shrum and tripped him, causing him to fall. Woodrow Strawther had a doublebarreled shot gun. The appellant had a gun. When Joe tripped Shrum he caught him around the arms and Woodrow held him by the feet. Shrum was held on the ground on his stomach with his head toward the ground. While Shrum was in that position the appellant placed the pistol at a point on his back and fired. Witness Olivett was within about ten steps of her father at the time this happened. After the shot was fired Joe Strawther said, 'Damn it, if you hadn't come over here this never would have happened.' After the shot was fired Olivett gave the gun to her father who slipped it under him. She begged them not to shoot the second time and no more shooting occurred."

Appellant's version of the fatal encounter was after the difficulty in which Glen Nugent was injured, he (appellant) and his two sons started down the highway to a field where Arch Shrum was plowing for the purpose of seeing if the boundary line according to the measurements they had taken, would be satisfactory. Joe got out of the car, and called to Shrum, and told him they had measured the ground and had come to make an agreement about it, to which Shrum replied, "All right." Then Joe stepped over the fence inside the field, and when he did so Shrum looked around and started running toward his daughter, who had a gun in her hand, and was running to her father. Joe then started running toward Olivett and shouted to her, "Olivett, don't give him the gun. I am not going to hurt him." However, the girl continued to run toward her father. Whereupon appellant says he reached in the pocket of the car, got his gun, and "put my gun in my pocket and jumped out and jumped the fence and started down the fence after my boy, Joe . . . in order to protect him . . . I run right on after him, following him up and as I run Mr. Shrum beat Joe to the girl something like 10 or 12 feet and when he got to the girl he grabbed his pistol and said, "Give me the gun, I am going to kill the G -- d -- s -- o -- b --,' and he drawed the gun on Joe." That Shrum had the gun in his right hand, and "Arch was trying to get the gun up where he could shoot him, and as I run I hollered three times, 'Don't shoot, Arch. Don't shoot, Arch.' And when I hollered the third time I was in about six feet of him, and when I hollered that time he stuck this -- Joe was stooping over his shoulder and he stuck the gun against him and said, 'I am going to kill the s -- o -- b --.' and I grabbed my pistol and fired one shot . . . to save the life of my son." The Strawthers then loaded Shrum into their car and took him to the doctor at Senath, who in turn caused him to be taken to a hospital at Paragould, Ark., where he died as a result of the...