State v. Thomas

Decision Date10 February 1958
Docket NumberNo. 1,No. 46080,46080,1
Citation309 S.W.2d 607
PartiesSTATE of Missouri, Respondent, v. Sherman THOMAS, Appellant
CourtMissouri Supreme Court

John M. Dalton, Atty. Gen., Richard W. Dahms, Asst. Atty. Gen., for respondent.

HYDE, Judge.

Defendant has appealed from a conviction of murder in the second degree and sentence of ten years in the penitentiary. He has filed no brief so we consider the assignments of error properly made in his motion for new trial. State v. Campbell, Mo.Sup., 262 S.W.2d 5. This requires consideration of whether there was sufficient evidence to support the verdict on defendant's claim that he was entitled to a directed verdict.

Defendant shot and killed Chris Huntley but claimed it was done in selfdefense. On March 30, 1956, 20 head of deceased's cattle had been 'put up' by defendant on his farm about 3 1/2 miles from deceased's farm. Deceased, learning of this, went with his wife in her stepdaughter's car to defendant's farm and found the cattle in a fenced lot near defendant's house. Defendant had gone to Buffalo (where he had a notice prepared to deceased, claiming damage done by his cattle) but his wife was at home. After waiting at a neighbor's house nearly an hour and a half for defendant to return, they went home. About 5:00 P.M., defendant came to deceased's home, carrying a gun (the same gun later used to shoot deceased) and, according to Mrs. Huntley, demanded $100.00 damages. According to defendant, he came to serve the notice requiring payment of $20.00 damages but deceased would not accept the notice. The parties had previously had trouble and defendant had been convicted and served a jail sentence for shooting one of deceased's heifers. Defendant testified that deceased had previously made threats to shoot him and on this occasion got a gun and ordered him to leave. Deceased's wife said that he did not get a gun and made no threat.

About midnight deceased left home, telling his wife he was going to see about his sheep and his cattle. He took his .22 rifle with him. Defendant was awakened by his dog's barking about midnight and upon investigation found deceased's cattle were out of the lot and saw they were going south into his cornfield. He went to the next farm (called the Clouse place) where a lane came out and found the cattle in the lane. Defendant said as he went toward them deceased stepped from behind a tree, 'said 'By God, I've got my cattle and by God, I aim to keep them', and throwed his gun up (demonstrating), and there wasn't nothing else to do, I drew mine and fired twice, both barrels.' Defendant had an over and under gun, a .22 rifle barrel over a .410 shotgun barrel (very small bore). He said he fired twice in rapid succession and was never closer than 20 feet from deceased. Defendant said he then turned and got away, 'kinda run', and got a neighbor to take him to Buffalo to see the lawyer who had previously defended him and, after conferring with him, told the Sheriff what had happened. The Sheriff testified defendant said 'there had been a shooting, and he had killed Chris Huntley.' The Sheriff also said: 'I asked him what he shot him with, and he said a .410 shotgun, and I asked him where at, and he said in the face.' He further stated that defendant said: 'Chris stepped out from behind a tree, and had a gun, and said 'I've got my cattle', and he said 'I shot him".

Defendant went with the Sheriff, coroner and undertaker to the place of the shooting. Deceased's body was found lying in the lane with his rifle, loaded but not cocked, lying across his arms. There were .22 shells in deceased's left hand. Deceased had a wound in the left arm, between the elbow and shoulder, made by a .22 rifle bullet and a wound in the head made by a shotgun charge. From the shotgun charge, there was a wound at the corner of the right eye that went along the temple but 'wasn't underneath the bone', going out over the ear. There was also a hole in the right eye, which angled toward the top of the head, 'about the size of one of those .410 shells, or your small finger'; or as described by another witness 'it was slightly bigger probably than a cigarette, or probably a .410 shotgun shell' and 'a little larger than a lead pencil.'

Defendant gave his remaining unused .410 shells to the Sheriff, who made test firings with them at distances of 20 feet, 10 feet, 6 feet, and 3 feet, using paper to record the firing patterns at each distance. At 20 feet the firing pattern perforation of the target paper was 13 or 14 inches wide; at 10 feet it was about 8 inches wide. All the target papers were introduced in evidence and shown to the jury, as were the guns of defendant and deceased. The cap of deceased, found about a foot from his head, was also in evidence and on the right hand side of the bill of the cap there were small perforations or holes entirely through the bill. The right hand side of the cap was also torn and there was blood and brains in it. The Sheriff, after a thorough search, found only one expended .410 shotgun...

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26 cases
  • State v. White
    • United States
    • Missouri Court of Appeals
    • April 18, 1958
    ...timely and proper objection thereto, the admission in evidence of such facts could not have constituted reversible error. State v. Thomas, Mo., 309 S.W.2d 607, 610(6); State v. Gaines, Mo., 261 S.W.2d 119, 124(4, The next assignment of error, i. e., that the trial court exhibited prejudice ......
  • State v. Perkins
    • United States
    • Missouri Supreme Court
    • July 13, 1964
    ...S.W.2d 101, 102; State v. Battles, 357 Mo. 1223, 212 S.W.2d 753, 756; State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 120; State v. Thomas, Mo., 309 S.W.2d 607, 608; State v. Tisdale, Mo., 353 S.W.2d 719, 721; State v. Goacher, Mo., 376 S.W.2d 97, 102-103[1, The defendant contends the state ......
  • State v. Vincent, 46849
    • United States
    • Missouri Supreme Court
    • March 9, 1959
    ...therefrom and disregard all evidence and inferences to the contrary. State v. Benjamin, Mo.Sup., 309 S.W.2d 602, 604; State v. Thomas, Mo.Sup., 309 S.W.2d 607, 609. The state's evidence tended to show that during the afternoon of March 30, 1957, Leon Spinks, Emel Henderson, William B. Swink......
  • State v. Lane
    • United States
    • Missouri Court of Appeals
    • May 2, 1977
    ...must consider as true the evidence favorable to the State and the favorable inferences reasonably to be drawn therefrom, State v. Thomas, 309 S.W.2d 607 (Mo.1958); State v. Taylor, 324 S.W.2d 643 (Mo.1959); and evidence and inferences to the contrary are rejected. State v. Colton, 529 S.W.2......
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