The State v. Eaton

• Decision Date: 14 March 1927
• Docket Number: 27545
• Citation: 292 S.W. 70,316 Mo. 995
• Parties: The State v. Clarence Eaton and Birchie Norman, Appellants
• Court: Missouri Supreme Court

292 S.W. 70

316 Mo. 995

The State v. Clarence Eaton and Birchie Norman, Appellants

No. 27545

Supreme Court of Missouri

March 14, 1927

Appeal from Henry Circuit Court; Hon. C. A. Calvird, Judge.

Affirmed as to Eaton; reversed and remanded as to Norman.

Haysler A. Pogue and Henry F. Poage for appellants.

(1) The evidence does not warrant the verdict. From the evidence it appears that deceased and his son were the aggressors throughout. The evidence does not substantially uphold a conviction of either of the defendants. The verdict is against the evidence and against the law under the evidence. State v. Goode, 271 Mo. 43; State v Partlow, 90 Mo. 608; State v. Gordon, 191 Mo 114. (2) It was error to permit the introduction of evidence by the State as to disturbances and cursing, with which defendants were not connected and which was not related to the offense with which they were charged. State v. Webb, 254 Mo. 434. (3) Instruction 9 given by the court practically deprived defendants of the right of self-defense, inasmuch as it limited that right, by the phrase, "and did not himself voluntarily enter into the difficulty," which was erroneous in view of the fact that defendant had withdrawn from the affray and was fleeing. State v. Goode, 271 Mo. 43; State v. Partlow, 90 Mo. 608; State v. Gordon, 191 Mo. 130. (4) The trial court did not instruct upon all of the law in the case when it was his duty so to do. State v. Branstetter, 65 Mo. 149; State v. Rufus, 149 No. 406. (5) The trial court erred in refusing defendants' instructions in the nature of a demurrer to the evidence, requested both at the close of the State's case and at the conclusion of the testimony. The State's case, as shown by its testimony, was predicated upon the theory that Norman aided and abetted Eaton, when there is no evidence that Norman even knew or had any reason to believe that Eaton was about to fire a shot at John Sorrel, and for the further reason that there is no evidence that Eaton knew of this affray until approached by the two Sorrels, who were certainly the aggressors, in a threatening manner and in such circumstances as to frighten Eaton and place him in fear of his own safety from bodily harm. State v. Goode, 271 Mo. 43; State v. Partlow, 90 Mo. 608; State v. Gordon, 191 Mo. 114. (6) Instructions 1 and 2 asked by the defendants and refused should have been given. The defendants were entitled to the instructions placing the burden of proof on the State and cautioning the jury against conviction based upon suspicion and advising them to bear the presumption of innocence until overcome by evidence which shows guilt beyond a reasonable doubt, as asked by Instruction 1. They were entitled to the Instruction 2 which instructs the jury that the defendants are not required to prove themselves innocent, and that the law requires that the State prove the defendants guilty, to the satisfaction of the jury beyond a reasonable doubt. State v. Douglas, 258 Mo. 281; State v. Gullett, 121 Mo. 447; State v. Maxley, 102 Mo. 374; State v. Conway, 241 Mo. 271. (7) It was error to permit evidence in attempt to show flight of one of the defendants, when defendant was arrested near his home, one week after offense. State v. Dogan, 252 S.W. 387. (8) Section 4017, Laws 1925, is in violation of the Constitution of Missouri, and of the United States. It extends special privileges, class distinction, and renders the criminal code and procedure un-uniform in the State. It deprives defendants in certain localities of "life and liberty without due process of law." Sec. 1, art. 14, arts. 5 and 6, Amendments, U.S. Constitution; Secs. 28, 30, art. 2, Mo. Constitution; Sec. 2, art. 4, U.S. Constitution. (a) The alleged offense was committed on June 4, 1925. Preliminary hearing was had on June 23, 1925. Information was filed July 1, 1925, all prior to taking effect of Sec. 4017, Laws 1925. The court erred in applying said law to the trial of this case. Such application was ex post facto. Sec. 10, art. 1, U.S. Constitution; Sec. 15, art. 2, Mo. Constitution; Sec. 1, art. 14, Amendments, U.S. Constitution.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) There is no bill of exceptions before this court. What seems to be the original bill of exceptions is on file. It is signed by the judge of the circuit court. There is no certificate of the circuit clerk as to its genuineness or correctness. It, therefore, cannot be considered by this court. The law does not authorize the circuit clerk to send to the appellate court the original bill of exceptions. State v. White, 315 Mo. 1276. (2) The record proper shows (a) that the defendants were arraigned and entered a plea of not guilty; (b) that a jury was properly empaneled and sworn to try the case; (c) that after hearing the evidence, the jury returned into court the verdict of guilty; (d) that allocution was had and judgment rendered by the court in accordance with the verdict of the jury and the defendants sentenced to the penitentiary. The information is in an approved form and is sufficient. State v. Young, 286 S.W. 29. The verdict of the jury is in proper form. State v. Young, 286 S.W. 29. (3) There is no error in the record proper. There is no bill of exceptions before the court. The evidence fully warrants the verdict of the jury.

OPINION

Blair, J.

Appellants were convicted of murder in the second degree. The homicide occurred in Benton County. The case was tried in Henry County after a change of venue. The jury assessed the punishment of appellant Eaton at fifteen years in the penitentiary. Appellant Norman's punishment was fixed at ten years in the same institution. They were duly sentenced and both have appealed to this court.

The scene of the tragedy was a public highway in Benton County, near the New Home Baptist Church. The victim was one John R. Sorrell, to whom we will generally refer as the deceased. The time was Thursday, June 4, 1925, between ten and eleven o'clock at night. The moon was shining brightly at the time. The occasion was a meeting to practice songs for an approaching children's day service of the Sunday School. Deceased was the song leader.

Eaton and Norman and one Brashers were attracted to the meeting. If they were inside the church at all, it was only for a short time or times. A disturbance arose outside, caused by the exhaust of an automobile driven around the church two or three times and by some loud swearing. Deceased and one Mowell left the practice and stepped outside to quiet the disturbance, and found Eaton, Norman and Brashers outside the church. Deceased talked with them and re-entered the church.

After the practice was over Norman and Brashers were still at the church. When deceased came out Norman said something to him to the effect that he could not prove that he (Norman) swore. The matter apparently was dropped after a few words. At that time Eaton was down the road a few rods, fixing a tire on his automobile. Deceased had started to untie his horse, and the son of deceased, Eddie Sorrell, was cranking his automobile. The State's evidence tended to show that Eddie then overheard some remark made by Norman to the effect that deceased was a liar. Eddie called Norman to account and asked him if he had called his father a liar. Norman said that, if his father said he swore, he was a liar.

Thereupon Eddie struck Norman with his fist and they engaged in an ordinary fight. Suddenly Norman started to run, yelling to Brashers to look out, that Eddie had a knife. Eddie admitted that he drew his knife, but claimed he did it only after Norman had drawn his own knife and he felt it cut him or cut his clothes. Norman denied that he had drawn any knife at that time. Anyway, Norman ran down the road to the spot where Eaton was working on his automobile. Eddie Sorrell claimed that he put his knife away while he was pursuing Norman. Upon learning of the fight and seeing his son pursuing Norman, deceased joined in the chase and called to his son to "stay with him, Eddie."

The sharpest contradiction in the testimony appears in the occurrences after deceased and his son and Norman arrived at the point where Eaton was working on his automobile. The story, as developed by the State's witnesses, is that Norman ran to the automobile, grabbed a pistol from the automobile, and pointed it at Eddie and commanded him to stop, and threw rocks at him. Eaton then drew his pistol also and told Eddie to put up his hands. Eddie complied. Neither deceased nor Eddie had any weapon in his hands at that time. Norman told deceased to put up his hands, but deceased said he would not put up his hands for any man. Thereupon, and while deceased was making no attempt to approach or attack either Eaton or Norman, Eaton said to deceased, "You won't put up your hands?" and fired his pistol at deceased. The bullet entered deceased's neck and apparently penetrated or, at least, entered the vertebrae. He was taken to the Katy hospital in Sedalia, Pettis County, and there died about a week later from the effects of such gunshot wound.

The version of Norman was that he never had any knife when he was fighting with Eddie Sorrell at the church. He felt Eddie's knife cut him and he broke away from him. He ran to the automobile and grabbed a knife, not a pistol, and flourished it to protect himself against Eddie, who still had his knife out. While he was thus standing Eddie off, he heard the shot fired by Eaton, which took as its toll the life of deceased. Norman denied having a pistol in his hand at any time. However, the great weight of the testimony was against him on this point. Norman was corroborated as to receiving knife wounds at the hands of Eddie Sorrell by a physician...