The State v. Barrett

• Decision Date: 27 February 1912
• Citation: The State v. Barrett, 144 S.W. 485, 240 Mo. 161 (Mo. 1912)
• Parties: THE STATE v. FRANK BARRETT, Appellant
• Court: Missouri Supreme Court

144 S.W. 485

240 Mo. 161

THE STATE v. FRANK BARRETT, Appellant

Supreme Court of Missouri, Second Division

February 27, 1912

Appeal from Pemiscot Circuit Court. -- Hon. H. C. Riley, Judge.

Affirmed.

C. P Hawkins for appellant.

(1) The information does not charge that it was preferred against the defendant by the prosecuting attorney of Pemiscot county, but appears to have been filed by one acting for the entire State. R. S. 1909, sec. 5115. (2) If the defendant should have been convicted at all, it should not have been for more than manslaughter in the fourth degree, and the punishment being two years, the punishment was excessive. R. S. 1909 sec. 4551. (3) The trial court should have instructed for manslaughter in the fourth degree. (4) The court, over the objection of the defendant at the time, allowed the prosecuting attorney to ask the defendant if he had not killed a man in some other State before coming to Missouri which had a tendency to prejudice the jury against the defendant. (5) The court permitted the prosecuting attorney to attack and call in question the reputation of the defendant when the same had not been put in issue by the defendant, and further allowed the State to prove the defendant was a drinking man. (6) The court should not have allowed the State to prove alleged specific acts of the witness Hill for the purpose of attempting to impeach him. (7) The defendant undertook to prove that the deceased had beat the wash woman, cut old man Lett's throat, and when drinking was regarded as the most desperate and dangerous man in Pemiscot county. This, the trial court refused. The jury should have known how desperate he was when drinking, as it was this man the defendant had to meet. (8) Self-defense was established beyond all question and if he should not have been acquitted then he should only have been convicted for manslaughter in the fourth degree and the punishment was and is excessive. R. S. 1909, secs. 4467, 4469 and 4551; State v. Bowls, 146 Mo. 6.

Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.

(1) The information is sufficient in every respect and a substantial compliance with the statutes, being signed by the prosecuting attorney and verified by his oath. It is of no consequence that he used his initials in his name or in his signature. Sec. 5057, R. S. 1909; State v. Kelley, 191 Mo. 680; State v. Brock, 186 Mo. 457; State v. Kyle, 166 Mo. 287; State v. Campbell, 210 Mo. 215; State v. Walker, 129 Mo.App. 376. It was not error to permit the State to prove defendant's general reputation for morality in the community where he lived to be bad, as all such was introduced after defendant had testified. The remaining objections either came too late after witness had answered or were perfectly harmless and without merit. When witness had answered before objection, a motion to strike out should have been made. State v. Lovell, 235 Mo. 343; State v. Bateman, 198 Mo. 212. (3) The inquiry as to the character of deceased must relate solely to his general character for violence, ferocity, vindictiveness or blood-thirstiness. 21 Cyc. 910, 956, 960, 971; State v. Elkins, 63 Mo. 159; State v. Jones, 134 Mo. 254; State v. Zorn, 202 Mo. 29; State v. Sykes, 191 Mo. 62; State v. Foley, 144 Mo. 600. (4) Particular assaults of deceased against third parties were wholly incompetent and irrelevant. It was not a proper way to prove that the deceased was a turbulent and dangerous man; and it was not shown even that defendant was present or had any knowledge of them. State v. Green, 229 Mo. 652; State v. Jones, 134 Mo. 262; State v. Nelson, 166 Mo. 205; State v. Elkins, 63 Mo. 165, 21 Cyc. 960. (5) After certain of appellant's witnesses had testified that the deceased's reputation was bad for peace and quiet and for being a turbulent, quarrelsome, dangerous and fighting man they were asked: "As a matter of fact, wasn't deceased the worst and most dangerous man in the county at that time? I will ask you whether or not you didn't consider deceased one of the worst and most dangerous men in your county at that time?" They call clearly for the individual opinion of the witness without any foundation being laid. State v. Elkins, 63 Mo. 165; State v. Niehaus, 217 Mo. 352, 21 Cyc. 961. Defendant's refused instruction, as to the quarrelsome, turbulent and dangerous character of the deceased, is not limited by knowledge thereof possessed by the defendant. If this court finds that there was a doubt as to who was the aggressor and decides to follow the Feeley case, and the cases therein cited, then we are inclined to believe that the refusal of appellant's instruction was error -- unless the court holds that appellant, at his own instance, offering the two instructions (3 and 5), cannot complain of the error. State v. Payne, 223 Mo. 112; State v. Linn, 223 Mo. 98; R. S. 1909, sec. 5115.

KENNISH, J. Ferriss, P. J., concurs, Brown, J., concurs in the result.

OPINION

KENNISH, J.

Convicted in the Pemiscot Circuit Court of murder in the second degree, defendant appealed.

The evidence for the State tended to show that, in company with others, deceased and defendant, on the day of the killing, had participated in a drinking bout at the home of one Fronan, a witness for the State. Deceased and defendant were on friendly terms when they reached Fronan's, the gun (unloaded) which defendant had and the knife in Sells's (deceased's) possession being taken for no unlawful purpose, so far as the evidence in this record indicates.

Fronan, aware of deceased's dangerous disposition, secured the latter's knife in advance of and in order to prevent trouble, but did not deem it necessary to deprive defendant of his gun. After drinking considerably and engaging in some boisterous conduct at Fronan's, and after defendant had searched deceased (whether for weapons or whisky the evidence is not clear), the two left Fronan's and went to the hotel where their conversation indicated that a quarrel had been in progress, and where the evidence of one witness indicates defendant threatened to kill deceased, but, though armed with his shotgun, made no effort to do so.

Sells, the deceased, left the hotel, and defendant went to his room and soon came out loading his gun. He then went to the front of a lumber company's office and sat down upon the steps. In a short time Sells came into view and walked down to a store some forty feet from where defendant was sitting, looked into the store, turned, retraced his steps, procured an oak club, a piece of stacking stick, about three feet long, one inch thick and two inches broad, and walked rapidly, weapon in hand ("like he was looking for something"), past the store mentioned, along the porch, toward where defendant was sitting. As he approached, the latter jumped off and away from the steps, and deceased leaped toward him "but not quite facing him," and as he reached the ground a few feet from defendant, the latter fired, the charge striking Sells on the right shoulder. This shot was fired at such close range that it set fire to deceased's clothing, and though the injury inflicted was not a fatal one the wounded man dropped his club and ran "between fifteen and twenty-five feet" to a fence, when defendant raised his gun and fired a second time. Sells was looking sidewise toward defendant, but turned just as the shot was fired, so that it struck him in the back of the head and caused his death in a few minutes. It appears from the testimony of the physician who reached Sells in a very short time, that this second shot singed or burned the hair along the neck.

On cross-examination several witnesses for the State testified that deceased had the reputation of being a violent, turbulent and dangerous man.

On the part of the defense, the evidence tended to show that deceased, knife in hand, had been looking for defendant, declaring he intended "to cut his throat if he could find him;" that immediately before he was killed, as he approached the place where defendant was sitting, he told one witness (referring to defendant) that he was "going to kill the son-of-a-bitch before night;" that as he walked straight to where defendant was sitting, the latter arose from the steps and, as Sells, after coming down the steps, advanced upon him with the club raised to strike, drew his gun up and fired twice in rapid succession, Sells wheeling as the first shot was fired.

Threats on the same day by Sells to kill defendant "before he slept a wink," and the like, were in evidence, and witnesses (including officials) for the defense, as well as those for the State, testified to the fact that deceased had the reputation of being a violent, dangerous and desperate man, and the record of his conviction for felonious assault and sentence to the penitentiary was in evidence. There was also evidence that during the afternoon Sells had drawn a knife on defendant, and, with vile epithets, declared he "had it in for him and this is as good time to settle it as we will ever get."

Defendant's version of the matter was that after being threatened by deceased during the afternoon, he concluded to leave the town to avoid trouble and took his shotgun to kill rabbits for bait on his trot line; that he came around the back way to avoid being seen by Sells, and when he reached a point between the store and the office Sells was on the office porch with a knife and a club and immediately declared he was going to "cut his [defendant's] head off," and "beat him up," and started for him; that Sells jumped off the porch, and was coming at him when he fired twice, as quickly as he could, and that he shot because he had to do so to save his own life.

The State offered some evidence that defenda...