State v. Turnbo

• Decision Date: 31 December 1924
• Docket Number: No. 25641.,25641.
• Citation: 267 S.W. 847
• Parties: STATE v. TURNBO.
• Court: Missouri Supreme Court

267 S.W. 847

STATE v. TURNBO.

No. 25641.

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

Appeal from Circuit Court, Ozark County; Fred Stewart, Judge..

Ray Turnbo was convicted of assault with malice aforethought and with a deadly weapon with intent to kill, and he appeals. Reversed and remanded for new trial.

William D. Roberts and Green, Green & Green, all of West Plains, for appellant.

Jesse W. Barrett, Atty. Gen. (Ellison A. Poulton, of Canton, of counsel), for the State.

DAVID E. BLAIR, P. J.

Defendant was convicted in the circuit court of Ozark county of the crime of assault, with malice aforethought and with a deadly weapon, with intent to kill one Jim Crabtree. The jury fixed his punishment at imprisonment in the state penitentiary for a period of three years. From the judgment rendered upon such verdict, defendant has appealed.

The learned Attorney General and counsel for defendant are in substantial agreement as to the facts. We quote from the brief of the Attorney General as follows:

"On the 2d day of July, 1922, church services were held in a schoolhouse at New Hope, Ozark county, Mo., which James Crabtree and his family attended. While there, appellant, who was intoxicated, became engaged in a quarrel with one Parkey, and cursed and tried to jerk him out of a car in which he was seated with a girl. Crabtree took hold of his arm and tried to get him to stop. Appellant cursed him and jerked loose and accused him of killing his cattle. A fight ensued, and Crabtree knocked appellant down two or three times. Shortly after, appellant left on horseback with some other men of his age. Shortly thereafter, Crabtree harnessed his team and set out along the same road for his home with his wife and children and another woman and her children. Crabtree was seated on the spring seat of the wagon with his wife. Two and a half miles from the schoolhouse, Crabtree, who was traveling northeast, saw the appellant traveling north on an old road. Appellant turned his horse around and rode behind some bushes. As the Crabtrees approached, he rode out from behind the bushes, drew a pistol, and pointed it towards Crabtree. Crabtree cried to him, `Ray, don't do that ! don't do that!' and jumped out of the wagon and went around to the other side of it. Appellant came around after him, and he threw the lines down and jumped behind the buggy of Jim McGinnis, who was driving close behind. Appellant fired one shot at him, and as he went around the buggy fired two more shots in quick succession through the ribs of the buggy. Crabtree then ran to a thicket, and just before he entered it appellant fired again. Crabtree, seeing appellant ride off, thought he was trying to head him off and came back to the wagon leaving there and going for the hills to a neighbor's three miles distant. Crabtree did not at any time make a motion towards his pocket as if to draw a gun and had no weapon of any kind upon him. After Crabtree had left, Mrs. Crabtree walked down to where appellant had gone, and appellant said: `Malinda, come and shake hands with me and say you will forgive me,' and upon her saying that she had lost a brother by shooting he replied, 'Yes, and you are liable to lose a husband before it is over.' One Jim Foster was trying to get appellant to go home, and he answered him saying, `By God! if he puts his head up before sundown, I will get him.' At the schoolhouse after the trouble, but before the parties left, appellant had said to Crabtree, `I will see you again.' On riding away from the schoolhouse, appellant said to those who accompanied him that he wondered which way Crabtree would go, and that 'It was not settled yet, he would see him another day.' `The brush never grew too dark'

                            "Defendant's Evidence
                

"That there had been a fight between appellant and Crabtree at the schoolhouse, and Crabtree knocked appellant down, whereupon appellant grabbed a rock which some one took away from him; that at the time appellant was drunk; that appellant did not ask which way Crabtree would go home; that after leaving the schoolhouse appellant wiped his mouth with a handkerchief, cried, and said, `I can't stand that,' but did not make any threats against Crabtree; that appellant turned off the main road in order to give his horse a drink; that immediately after the fight Crabtree made the statement to the appellant that, `Being he was drunk, he would see him again and make him take back some words he had said.'

"The appellant testified in his own behalf that he was in a quarrel with Parkey, and Crabtree ran up to him, and after cursing him told him to be quiet and `to talk to somebody that ain't afraid of you,' and that that led on to words and a fight, and that he remembered nothing about it except that he was knocked down twice; that he left the schoolhouse and turned off of the road to an old ranch where his grandfather lived; that leaving there and coming out on to the main road he met Crabtree; that Crabtree, upon seeing him, shoved his band into his right-hand front pocket; that appellant then drew his gun; Crabtree jumped out of the wagon, and he fired one shot at him; that he was so intoxicated that he did not remember much of what followed after; that while Crabtree was on the other side of the wagon he thought he was going to get a rock and he fired—`I remember shooting once, but I thought he was getting a rock then.' That he did not remember Crabtree running behind the buggy.

"On cross-examination he testified that he remembered distinctly seeing Crabtree put his hand in his pocket, but that after that his mind was an absolute blank; immediately after this, and in response to a question by the court, he testified at the time he fired the shot Crabtree was on the other side of the wagon and he thought he was trying to get a rock. Appellant offered to prove by three or four witnesses that the prosecuting witness, Crabtree, had a reputation in the community in which he lived for being a dangerous, turbulent, quarrelsome, and overbearing person. The court sustained the state's objection to this proof."

I. Defendant makes four assignments of error in his brief. The chief complaint is the refusal of the trial court to give defendant's requested instruction upon self-defense. The learned Attorney General confesses error in this respect, and we fully agree with him therein.

Where there is any evidence of facts tending to show that defendant acted in self-defense, an...