State v. Wilcox
| Citation | 204 N.W. 369,48 S.D. 289 |
| Decision Date | 03 June 1925 |
| Docket Number | 5573. [*] |
| Parties | STATE v. WILCOX. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Charles Mix County; R. B. Tripp, Judge.
Frank Wilcox was convicted of murder, and he appeals. Reversed.
G. M Caster, of Lake Andes, and C. F. Manson, of White River, for appellant.
Buell F. Jones, Atty. Gen., for the State.
This is an appeal from a judgment of conviction on a charge of murder. The homicide on which the prosecution is based occurred on the 26th day of March, 1923, some 9 or 10 miles southwest of Platte, in Charles Mix county, on a farm owned by one Mattie Walters, an Indian woman. This farm had been rented to Eugene Wilcox, the father of appellant, during the season of 1922. There were two dwelling houses on the place one of which was occupied by said Eugene Wilcox and his family, and the other by Mattie Walters and her husband, Bob Walters, a white man. These houses were some 250 yards apart. During said season of 1922 Eugene Wilcox and appellant raised a field of corn on said farm. When the corn was gathered in the fall, it was stored in a corncrib that stood in the vicinity of the said dwelling houses. This crib was some 40 odd feet in length, and 10 or 12 feet wide, and was divided by a partition. As the corn was gathered, the portion belonging to the Wilcoxes was stored on one side of the partition, and the portion belonging to Walters on the other. On the south side of the crib was a door opening into the portion of the crib in which the Wilcoxes' corn was stored.
During the fall or winter differences arose between the two families, and proceedings were had, to the end that, on the 17th day of March, 1923, Mattie Walters recovered a judgment in justice court of the county against Eugene Wilcox for possession of the place. Immediately after the entry of this judgment, Wilcox found a place in Platte to which to move his family and belongings, and proceeded with all reasonable expedition to vacate the Walters place. In order that there be no unnecessary delay in getting his belongings moved Wilcox provided a temporary crib in the neighborhood where he could store his corn, and in that way get it off the Walters place faster than if he hauled it all the way to Platte. On the evening of March 25th the Wilcoxes loaded two wagons with corn, and left them standing overnight near the house where they were living. On the morning of the 26th, Wilcox, with appellant and another son younger than appellant, hitched their teams to these wagons, took them to the temporary crib, unloaded the corn, and returned to the crib to load up again. When they reached the crib, they found the door had been closed, and two boards nailed across it so securely that they could not be removed or the door opened without using a pry of some kind to pry the boards off.
When the Wilcoxes reached the corncrib, Walters and the deceased were in the barn, or corral adjacent to the barn, some distance to the east of the corncrib. They immediately started towards the crib. They crossed the corral together, but when they reached the gate at the west side of the corral they separated. Walters came past the house over to the corncrib, while Kemery, the deceased, went to the house, got a repeating shotgun, and then immediately came toward the southeast corner of the corncrib. As soon as Walters reached the corncrib, he tried to start a quarrel with defendant, but defendant declined to quarrel with him, and started toward the southeast corner of the corncrib. Walters then became involved in an altercation with Eugene Wilcox, and almost immediately thereafter appellant shot and killed Kemery with an automatic pistol he had been carrying in his pocket.
At the trial appellant admitted that he fired the shot that killed Kemery, but claimed that in so doing he was acting in the justifiable defense of his own life.
Appellant first contends that the evidence is insufficient to support the verdict.
The evidence as to just what took place at the time of the shooting is conflicting in some respects, and ordinarily a new trial should not be granted. On the other hand, we are unable to determine just what evidence the verdict of guilty of murder is based upon. Under the conceded facts in the case, the Wilcoxes had a perfect right to be where they were at the time of the trouble. The corn in the crib belonged to them, and they had a perfect right to remove it in the manner they were removing it, and without interference from any one. Walters had no right to nail up the door of the corncrib, or to interfere with the Wilcoxes, and could have had no motive in doing so other than pure malice. When Walters reached the corncrib, the Wilcoxes were looking for some instrument with which to pry the boards off the door. He first accosted the appellant by asking him, "What's the matter with settling up before you go any further?" Appellant replied, "I don't owe you anything." Walters then said, "If you don't, who does?" To which appellant replied, "Talk to the old man," meaning his father. Appellant then turned away and went to the other end of the crib. When about to the southeast corner of the crib he saw the deceased about 50 feet southeast from him with the shotgun in his hands. By that time Walters had become engaged in an altercation with appellant's father, and did not see or hear what took place between defendant and deceased, and who made the first hostile demonstration is not shown by any testimony on the part of the state. Defendant testified that when he first noticed the deceased he was in the act of firing the shotgun at him, defendant; that he, defendant, as quickly as possible, dropped to his knees, drew his pistol from his pocket, and fired two shots in quick succession at deceased; that the bullet from the second shot struck deceased in the head and killed him. and it is a fact that deceased did fire the shotgun at defendant, and that the charge of shot struck the corner of the corncrib behind where defendant was standing, and at the height of defendant's head from the ground. Under these facts and all the attending circumstances, it was for the jury to say whether defendant was acting in the justifiable defense of his own life when he fired the fatal shot.
At the trial the defendant requested the following instruction:
"The court instructs the jury that if you believe any witness in this case has knowingly sworn solely to any material matter in the case, you must reject all testimony of such witness."
This instruction was refused, and error is assigned. While, in form this instruction applies equally to the testimony of all witnesses in the case, defendant claims that it is especially applicable to the testimony of the state's witness, Walters. At a coroner's inquest that was held over the body of William Kemery the next day after he was shot, Walters testified that just prior to the shooting Eugene Wilcox had threatened to assault him; that Wilcox shook his fist in his (Walters') face, and called him every vile name he "could lay his tongue to." At the trial, Walters, in narrating this same encounter, testified that Eugene Wilcox tore off one of the boards that he, Walters, had nailed across the door, and threatened to knock his brains out with it. He further testified that after Wilcox tore this board off there was only one board left. When defendant put in his evidence he introduced a photograph of the corncrib that had been taken shortly after the tragedy, and before it is claimed that any change had been made after the tragedy. This photograph shows the two boards across the door just as they had been described by the witness Walters. The state on rebuttal introduced a piece of board in evidence that Walters said was the board that he had nailed across the door, and that Wilcox tore off and threatened him with. This exhibit is a piece of a hard wood board 5 1/2 inches wide, and more than 4 feet long, broken off at one end. Walters then went on the stand in rebuttal, and swore that one of the boards had been longer than the other, and that Wilcox broke off the end of the board that projected beyond the west side of the door, and this, too, notwithstanding the fact that he had testified that one of the Wilcox teams, a team of mules, was standing close to the crib and within two feet of the west side of the door. Defendant claims that these discrepancies in Walters' testimony are too great to be accounted for on the ground of mistake or lack of memory, and that it was error to refuse the requested instruction.
Under the rule announced in State v. Goodnow, 41 S.D. 391, 170 N.W. 661, this instruction should have been given. And what is said in Bank v. Bailey et al., 46 S.D. 547, 195 N.W. 37, is especially applicable to such instruction in this case. True, the Bailey Case had not been reported when this case was tried, but the Goodnow Case should have been followed. In State v. Weston (S. D.) 198 N.W. 826, we sustained the trial court in the refusal of an instruction of this character. Our attention is called to the following language used in that case:
This was evidently an inadvertence on the part of the court, for it is not in harmony with the established rule of this court and is not the law. Where the veracity of witnesses in a case is brought in question, this instruction should be given, and the refusal to give it in this case constitutes reversible error. State v. Raice, 24 S.D. 111, 123 N.W. 708, and cases cited. Stafford v. State, 55 Ga. 592; State v. Perry, 41...
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