The State v. Hall

• Decision Date: 13 May 1902
• Citation: 68 S.W. 344,168 Mo. 475
• Parties: THE STATE v. THOMAS HALL, Appellant
• Court: Missouri Supreme Court

68 S.W. 344

168 Mo. 475

THE STATE v. THOMAS HALL, Appellant

Supreme Court of Missouri, Second Division

May 13, 1902

Appeal from Iron Circuit Court. -- Hon. Frank R. Dearing, Judge.

Affirmed.

J. J Cope and J. W. Callahan for appellant.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The evidence shows deceased to have been shot down in cold blood. The most surprising feature of the case is that the jury did not convict him of murder in the first degree. (2) In the case of State v. Bowman, 161 Mo. 88, the court held that the weight of the evidence is for the jury, and where the evidence, if believed by the jury is sufficient to sustain the verdict, the Supreme Court will not interfere. This has always been the rule in this court. State v Marcks, 140 Mo. 656; State v. Elie, 147 Mo 535. (3) The second allegation of error contained in the motion for a new trial is that the court permitted improper evidence to go to the jury over the objections of the defendant. This is a general objection, alleging error in general terms, and under the rule adopted in the case of State v. David, 159 Mo. 534, is not sufficient to be considered by the appellate court. (4) No error was committed by the trial court in failing to instruct on manslaughter in the fourth degree. Defendant was guilty of murder in the first or second degree, or the killing was justifiable on grounds of self-defense.

OPINION

GANTT, J.

At the regular October term, 1900, of the circuit court of Iron county an indictment was preferred against the defendant charging him with murder in the first degree of James W. Asher on June 24, 1900. Defendant was duly arraigned on October 24, 1900, and pleaded not guilty, and a copy of the indictment was furnished him on that day, and the cause set down for trial on December 10, 1900. Both parties announced ready for trial on the 10th of December, and a jury was duly selected, and the trial of the cause proceeded until the 15th of December, when the jury returned a verdict of guilty of murder in the second degree, and assessed defendant's punishment at ten years in the penitentiary. The evidence presents the following case:

Defendant lived on his mother's farm in Iron county, his house being only a short distance from that of his mother. The deceased, James W. Asher, and defendant and his family had not been on good terms for sometime. A traveled road runs along near the dwellings of defendant and his mother. It is not shown whether the road was a public one or not, but it seems to have been traveled by the public for many years. A few days before the shooting, defendant and his mother closed up the road by felling trees and brush across it so as to impede or prevent travel. The deceased, Asher, and witnesses Clemens and his sons, Jake and Charley Asher, used the road in getting out from their homes. On Sunday morning, June 24, 1900, about nine o'clock, Clemens, Jake Clemens, Charley and Jim Asher were at the house of witness Clemens. Jake Clemens got on his horse and left soon after. In a few moments he came back to the house and called for an ax, saying the road was stopped up down at Hall's. They went down, some of them commenced cutting the trees and brush out of the road, but deceased took no part in the cutting. Defendant's mother, Martha Hall, came up and ordered them to leave the trees and brush alone. While they were discussing the matter with her, defendant came up with a Winchester rifle in his hands. He stepped up near the brush in plain view, at the same time telling his mother to get out of his way, saying, "There is that G -- d -- Jim Asher; I am going to kill him." Asher, who stood holding Jake Clemens's horse, remarked: "Hold on, Tom, I haven't done anything." Hall, then, without further words, raised his gun and fired, the ball taking effect in Asher's breast, from which he died in about four hours.

Defendant asserts he shot in self-defense. He and his mother, Martha Hall, both testified that James Asher made the remark upon defendant's approach, that, "If you [defendant] can shoot quicker than I [Asher] can, you had better be at it," and that with that expression, he threw his hand behind him as if in the act of getting a revolver, when defendant, fearing his life was in danger, immediately raised his gun and fired.

There was much evidence of threats on both sides.

The witnesses for the State, who were present when the shooting occurred, state that...