State v. Wampler
| Decision Date | 03 March 1933 |
| Docket Number | No. 32691.,32691. |
| Citation | 58 S.W.2d 266 |
| Parties | STATE v. WAMPLER. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.
Bennie Wampler was convicted of murder in the second degree, and he appeals.
Affirmed.
Stratton Shartel, Atty. Gen., and James A. Finch, Jr., Asst. Atty. Gen., for the State.
COOLEY, Commissioner.
In the circuit court of Iron county the defendant was convicted of murder in the second degree for the killing, on August 4, 1931, of his father-in-law, Oscar Barr. His punishment was assessed by the jury at fifteen years' imprisonment in the penitentiary. He was duly sentenced in accordance with the verdict, and has appealed. He has filed no brief in this court. The only points sufficiently preserved in his motion for new trial to present them for review are the refusal of the trial court to sustain defendant's challenge for cause of one of the panel of thirty from which the trial jury was selected, and the sufficiency of the evidence to make a submissible case and to sustain the verdict. The latter assignment makes necessary a statement of the salient facts developed by the evidence.
The state's evidence tended to show the following facts:
Defendant lived on a small farm which he owned in Iron county. He had married Margaret Barr, a daughter of deceased, but, though not divorced, they had separated in August, 1930, after which time Margaret had lived with her father and mother some fifteen miles from defendant's home. For about five months prior to August 4, 1931, the date of the killing, Everett Barr, a son of deceased, and his wife, had lived with defendant.
On the morning of August 4, Everett Barr, at the request of defendant, went to the home of deceased to get Margaret to come to defendant's home to sign a deed to his farm which he had arranged to sell. Everett left defendant's house about 8 o'clock in the morning, and returned about 7 o'clock in the evening accompanied by Margaret and her father. At that time defendant was milking. He told Everett to put his horse in the barn. Nothing else was said by any of those present. After putting up his horse, Everett took Mr. Barr to the back porch, talked with him a few minutes, and then started to a neighbor's to get his wife. When he left Barr, the latter was seated on the porch eating an apple. When Everett had gone about an eighth of a mile, he heard three shots, and heard his father say: "He has killed me." Hastening back, he met defendant in front of the house. The latter said to him: "I killed your dad." Everett found his father lying on the ground about fifty yards from the house, unconscious. He died an hour or so later without regaining consciousness or speaking.
There were three wounds upon deceased, one, inflicted with a shotgun, in the right shoulder, ranging downward; another, from a pistol of large caliber, in the right shoulder, ranging downward; a third, inflicted also with a large caliber pistol, in the head. The bullet making the wound in the head entered on the left side just above the ear, passed through and came out on the right side of the head. It "shattered the sutures of the skull until they were all loosened." Either that wound or the shotgun wound alone would have caused death.
About 11 o'clock on the night of August 4, the defendant surrendered himself to the sheriff, telling that officer he had killed Oscar Barr, and delivered to the officer a 12-gauge shotgun and a 45-caliber Colts revolver with the remark: "That killed a man." On the following morning, at the prosecuting attorney's office, he voluntarily made a statement to that officer in the presence of witnesses and after being duly advised as to his rights. According to one witness, defendant said: Another witness in detailing defendant's statement testified that he said Mr. Barr and his daughter, defendant's wife, were sitting on the porch and that after getting his shotgun and pistol "I came back to the back door and when I got in the door I raised my gun up to shoot, because Mr. Barr reached his hand back in his hip pocket and I shot."
The state's evidence tended to show that Mr. Barr did not own a pistol and was unarmed when he went to defendant's house, and that no weapon was found upon him nor about the back porch or the spot where he was found after being shot.
Defendant relied upon self-defense. His testimony, corroborated to some extent by other witnesses, tended to show that ill feeling had existed between him and Barr for some time prior to the tragedy, apparently growing out of the estrangement and separation of defendant and his wife and her refusal to return to him; that Barr had said that he (defendant) must make a settlement with his wife and divide his property with her, threatening "serious trouble" if defendant failed to do so; that, after he had made repeated visits to Barr's home in efforts to get Margaret to come back to him, Barr had told him not to come there any more, and he in turn had directed Barr not to come to his (defendant's) premises.
Relative to the fatal encounter, defendant testified:
That, when he came to the house upon finishing his milking, his wife was in the yard and Mr. Barr on the porch; that Mr. Barr said to him, "I am back at last to settle up;" to which he replied, "Yes, and you had better get off;" that he then went into the kitchen, placed the milk on the table, got his gun from the front room, went back to the door, and asked Barr if he was going to leave; that Barr was then standing on the porch about a step from the door, "watching both doors to see where I was coming out, and he had his hand behind him."
He further testified that Barr had a pistol in his hand and that he shot Barr to protect himself:
"I was afraid he would kill me if I didn't shoot him;" that Barr was a considerably taller man than he; that he shot Barr first with the shotgun, striking him in the arm, whereupon Barr changed his pistol to his other hand but did not shoot at defendant.
He further testified that Barr was standing on the porch while all three shots were being fired by defendant and that "it didn't appear like" the last two struck him, "as it had no effect on him"; that Barr did not fall but "went off the porch," taking his pistol with him; that he (defendant) did not follow, "but I was watching him"; did not see Barr fall nor see him on the ground after he had fallen. Defendant proved a previous good reputation for peace and quietude.
In rebuttal, the state called the doctor who had examined deceased's wounds and who testified, in substance, that the wound in deceased's head was one that would cause instant paralysis of the brain "and he would be unable to move"; that a man so wounded "couldn't move a muscle, he would be absolutely helpless," and would fall; that such an injury to the brain destroys all motion and control of the muscles and he was sure Barr could not have moved after receiving that wound.
There was evidence of blood stains on the ground where Barr was found by his son, but no traces were observed between that point and the porch. Defendant's wife was not called as a witness.
I. There can be no doubt that the evidence justified submission to the jury of the offense of murder in the second degree and is sufficient to support the verdict finding defendant guilty of that crime. He admitted the killing. It was done with a deadly weapon used upon a vital part of deceased's body. The only evidence tending to exculpate defendant or to reduce the crime to a lower grade of homicide was the testimony of defendant himself. The jury was not obliged to credit that, especially in view of the evidence tending to show that part of it could not be true, viz. his testimony that Barr, with a paralyzing wound in his brain, walked away from the porch showing no signs of having received that wound....
To continue reading
Request your trial
-
State v. Lloyd
...State v. Harp, 6 S.W.2d 562; State v. Kauffman, 46 S.W.2d 847; State v. Gaters, 39 S.W.2d 548; State v. Cook, 44 S.W.2d 90; State v. Wampler, 58 S.W.2d 266. McKittrick, Attorney General, and W. W. Barnes, Assistant Attorney General, for respondent. (1) There was substantial evidence to supp......
- State v. Wampler
-
State v. Butler
...(c) and (d), pp. 996, 997; 50 C.J.S. Sec. 232 (b), p. 980; See also State v. Kauffman, 335 Mo. 611, 73 S.W.2d 217, l.c. 219 (1); State v. Wampler, 58 S.W.2d 266, 268 (4). The other point made by the appellant as to the sheriff's not summoning Clark for jury duty when he learned Clark reside......
-
State v. Butler, 41336.
... ... 50 C.J.S., Juries, § 241(c) and (d), pages 996, 997; 50 C.J.S., Juries, § 232(b), page 980; See also State v. Kauffman, 335 Mo. 611, 73 S.W.2d 217, loc. cit. 219(1); State v. Wampler, Mo.Sup., 58 S. W.2d 266, loc. cit. 268(4) ... 221 S.W.2d 163 ... The other point made by the appellant as to the sheriff's not summoning Clark for jury duty when he learned Clark resided in the defendant's neighborhood is totally without merit. The sheriff has the right not to ... ...