State v. Yates, No. 24827.

CourtMissouri Supreme Court
Writing for the CourtDavid E. Blair
Citation256 S.W. 809,301 Mo. 255
Decision Date03 December 1923
Docket NumberNo. 24827.
PartiesSTATE v. YATES.
256 S.W. 809
301 Mo. 255
STATE
v.
YATES.
No. 24827.
Supreme Court of Missouri, Division No. 2.
December 3, 1923.

[256 S.W. 810]

Appeal from Circuit Court, Jefferson County; D. M. Dearing, Judge.

Henry Yates was convicted of murder in the second degree, and he appeals. Reversed and remanded for retrial.

P. S. Terry, of Festus, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

DAVID E. BLAIR, P. J.


Defendant was convicted of murder in the second degree, and sentenced upon the verdict to imprisonment in the state penitentiary for a term of 15 years. From this judgment he has appealed.

The Attorney General suggests in his brief that the appeal in this case should be dismissed because defendant failed to perfect his appeal within 12 months after such appeal was granted. Section 4107, R. S. 1919, provides that the appeal shall be dismissed under such circumstances if the Attorney General files a motion to dismiss it, unless defendant shall show good cause for his failure to perfect his appeal.

The Attorney General has not filed a formal motion to dismiss the appeal, and has merely called the situation to our attention in his brief. The statute makes no provision for such dismissal, except upon motion of the Attorney General, and we think the mere suggestion of such dismissal in his brief does not satisfy the conditions of the statute. It is unnecessary to consider the proof of good cause for failure to perfect the appeal within 12 months, now tendered by defendant, since the Attorney General has not seen fit to file the statutory motion. The Attorney General is not required to file such motion, but may do so. Since he has not filed the motion, and the appeal has now been fully perfected, the question of dismissal of the appeal under section 4107 is not before us.

The Attorney General also contends in his brief that there is nothing before this court for review, except the record proper, because "the bill of exceptions is not authenticated or identified." This point is now out of the case, for the reason that under our leave heretofore given defendant has supplied in this court the record of the trial court showing the signing, sealing, and filing of the bill of exceptions in the trial court, and the order of that court making such bill of exceptions a part of the record in the case.

The evidence offered by the state tends to prove that defendant shot and killed one Truman E. Williams at defendant's home near Crystal City, in Jefferson county, on October 23, 1921. A dance was in progress at defendant's home at the time. Deceased, his brother, John Williams, and four other men, including one Schleuter and one Aubuchon, arrived at the dance some time about 9 o'clock. Schleuter, Aubuchon, and John Williams were intoxicated. The evidence is conflicting whether or not deceased had been drinking, but is apparently in agreement that he was not intoxicated. Schleuter at least was very much under the influence of liquor.

There is testimony that Schleuter, Aubuchon, and John Williams paid the required admission to the dance. Deceased did not pay such admission fee, and did not dance, and apparently did not even remove his overcoat during the evening. There is some evidence tending to show that deceased and his friends were not invited by defendant to attend the dance. In any event, their presence was accepted upon their arrival.

It appears that Schleuter and one John Hunt had trouble on the dance floor, and Hunt either assaulted Schleuter or put him out of defendant's house. Thereupon defendant asked deceased and his friends to leave, and to come back some time when they were

256 S.W. 811

and not selling whisky, and they would then be welcome.

At about 1 o'clock, or shortly after, deceased and his brother, John, returned with Aubuchon, and probably Schleuter. The evidence of John Williams and Aubuchon is so indefinite and vague concerning transactions thereafter as to lend ready credence to the contention that they were drunk at the time. Their recollections were evidently befuddled for some reason. It is reasonably clear from the state's evidence that, after the party returned to the defendant's home after midnight, John Williams went into the house and quarreled with John Hunt over his treatment of Schleuter earlier in the evening, and blows were struck. Deceased came into the room and endeavored to separate his brother and Hunt, and to get them to go outside if they wished to fight. While he was doing this defendant fired three shots. The bullet from the first one struck deceased about the left temple and penetrated his skull and came out about VA inches above and one-half inch to the rear of his right ear. The left side of his face was powder burned. He at once became unconscious, and fell to the floor, and died in an automobile while being taken to the doctor's office. John Williams was struck by another shot, and severely wounded, but recovered and testified at the trial.

Several witnesses testified that they saw defendant fire the fatal shot, and that he said he had killed deceased. There was testimony that defendant told some of those present to take the deceased out before he shot the others, and that there were two others he wanted to get.

The testimony of defendant was to the effect that while John Williams and Hunt were fighting deceased came in, pushed defendant out of the doorway, and rushed past the defendant, cursing him, and shaking his fist in his face, and shoved defendant against a dresser. The dresser drawer flew open, and defendant seized a revolver just as deceased had his hand up in the air with a revolver in it, and defendant fired one shot at his hands to keep deceased from shooting him or others there present; that deceased fired at the same time that defendant fired. The testimony of Aubuchon was that defendant reached in his bosom and drew something therefrom, inferentially a revolver. Defendant's wife testified that she overheard deceased and Aubuchon planning to break up the dance. This conversation occurred just before the shooting.

The people present at the time were evidently very much excited and confused by the events which were transpiring. The only lamp in the room was extinguished in some manner, probably by the concussion of the shot, and the only light coming into the room after that shone through the door leading into the adjoining room. Some of the witnesses testified to hearing two shots and some of them four, but the most of them heard three shots. There is testimony on the one hand that defendant took three discharged shells from his revolver after the shooting, and on the other hand that he took out only one exploded shell.

There is testimony tending to corroborate defendant that another shot was fired practically simultaneously with his own shot and that the flashes of these shots were in opposite directions. We think the great preponderance of the testimony tends to show that all the shots came from the same point, and that they made sounds like they were all from the same revolver. Evidence was introduced by the defendant to the effect that a bullet was afterwards removed from the window casing or sash WA or 7 feet above the floor and in the course in which defendant claimed he fired at deceased's upraised hand.

The evidence fully warranted the finding of the jury that a shot fired by defendant caused the death of deceased. If defendant's shot caused the death of deceased, the fact that the bullet entered his head at the left temple and emerged above his right ear disproves defendant's claim that deceased was facing him and about to shoot him at the time he fired. Deceased must then have been facing a point very nearly at a right angle to a line from the one to the other. There was testimony given by other witnesses which tended to show that deceased had something shiny in his hand, and that he fired a shot, but this appears to be in conflict with the great weight of the testimony.

No weapon of any sort was found upon deceased's person or upon the floor. The killing occurred in defendant's home, and among his friends, and it is fair to assume that, if deceased had dropped a pistol or other weapon, it would have been found on the floor and produced by defendant or his friends. It does not appear likely that deceased could have put a weapon in his pocket after he shot, to be afterwards removed and suppressed by his friends while taking him to the doctor. He was rendered instantly unconscious. Such is the usual and expected result of a bullet fired through the brain. The trial court refused to admit testimony that deceased and his party were selling whisky. However, the fact was gotten before the jury that...

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21 practice notes
  • State v. Malone, No. 30987.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1931
    ...No. 12 on behalf of State. (a) The first part of it constitutes a flagrant comment on the evidence. Sec. 3694, R.S. 1929; State v. Yates, 301 Mo. 255, 256 S.W. 812; State v. Cole, 304 Mo. 105, 263 S.W. 211; State v. Northington, 268 S.W. 57; State v. Adkins, 284 Mo. 680, 225 S.W. 982; State......
  • State v. Martin, No. 43226
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1953
    ...111 S.W.2d 62, 65; State v. Creighton, supra, 52 S.W.2d 565; State v. Malone, supra, 39 S.W.2d 794; and State v. Yates, 310 Mo. 255, 265, 256 S.W. 809, Care should be exercised in charging the jury to assure that defendant's theory of self-defense is not improperly explained away, minimized......
  • State v. Baublits, No. 30168.
    • United States
    • United States State Supreme Court of Missouri
    • April 7, 1930
    ...the shot was sufficient to make the crime manslaughter, although the appellant had no intention of hitting the deceased. State v. Yates, 256 S.W. 809, 301 Mo. 255. The instruction follows that given in: State v. Weisman, 256 S.W. 740; State v. Haines, 160 Mo. 555; State v. Millin, 300 S.W. ......
  • State v. Foster, No. 39962.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1946
    ...278; State v. Durfee, 69 Mo. 469; State v. Rapier, 141 Mo. 327, 42 S.W. 935; State v. Pollard, 139 Mo. 220, 40 S.W. 949; State v. Yates, 301 Mo. 255, 256 S.W. 809; State v. Rennison, 306 Mo. 1, 260 S.W. 850. (32) The failure of the court to instruct the jury on manslaughter in the "hea......
  • Request a trial to view additional results
21 cases
  • State v. Malone, No. 30987.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1931
    ...No. 12 on behalf of State. (a) The first part of it constitutes a flagrant comment on the evidence. Sec. 3694, R.S. 1929; State v. Yates, 301 Mo. 255, 256 S.W. 812; State v. Cole, 304 Mo. 105, 263 S.W. 211; State v. Northington, 268 S.W. 57; State v. Adkins, 284 Mo. 680, 225 S.W. 982; State......
  • State v. Martin, No. 43226
    • United States
    • United States State Supreme Court of Missouri
    • September 14, 1953
    ...111 S.W.2d 62, 65; State v. Creighton, supra, 52 S.W.2d 565; State v. Malone, supra, 39 S.W.2d 794; and State v. Yates, 310 Mo. 255, 265, 256 S.W. 809, Care should be exercised in charging the jury to assure that defendant's theory of self-defense is not improperly explained away, minimized......
  • State v. Baublits, No. 30168.
    • United States
    • United States State Supreme Court of Missouri
    • April 7, 1930
    ...the shot was sufficient to make the crime manslaughter, although the appellant had no intention of hitting the deceased. State v. Yates, 256 S.W. 809, 301 Mo. 255. The instruction follows that given in: State v. Weisman, 256 S.W. 740; State v. Haines, 160 Mo. 555; State v. Millin, 300 S.W. ......
  • State v. Foster, No. 39962.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1946
    ...278; State v. Durfee, 69 Mo. 469; State v. Rapier, 141 Mo. 327, 42 S.W. 935; State v. Pollard, 139 Mo. 220, 40 S.W. 949; State v. Yates, 301 Mo. 255, 256 S.W. 809; State v. Rennison, 306 Mo. 1, 260 S.W. 850. (32) The failure of the court to instruct the jury on manslaughter in the "hea......
  • Request a trial to view additional results

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