The State v. Odbur

• Decision Date: 03 June 1927
• Docket Number: 27792
• Citation: 295 S.W. 734,317 Mo. 372
• Parties: The State v. Henry Odbur and Fred Shade, Appellants
• Court: Missouri Supreme Court

295 S.W. 734

317 Mo. 372

The State v. Henry Odbur and Fred Shade, Appellants

No. 27792

Supreme Court of Missouri

June 3, 1927

Appeal from Pike Circuit Court; Hon. Edgar B. Woolfolk Judge.

Affirmed as to Odbur; reversed and remanded as to Shade.

Davis Benning, Andrew J. Murphy, Jr., and Ras Pearson for appellants.

(1) Appellant Fred Shade contends that as to him the trial court committed error in not giving the instruction in the nature of a demurrer offered at the close of the State's evidence and again at the close of all the evidence. Notwithstanding the trial court held otherwise, appellant Shade earnestly insists that there is not one element of conspiracy to kill, murder or to do great bodily harm or malice aforethought in this case; that the evidence does not show that he aided, counselled, abetted, procured or incited his co-defendant, Henry Odbur, in and about the premises. State v. Porter, 276 Mo. 395, 207 S.W. 774; State v. Bell, 289 S.W. 622; State v. May, 136 Mo. 136; State v. Thompson, 293 Mo. 116; State v. Thompson, 238 S.W. 786; State v Parr, 296 Mo. 406, 246 S.W. 906; State v Recke, 278 S.W. 999; State v. Stemmons, 262 S.W. 706; State v. Hickman, 95 Mo. 322. (2) The court committed error in submitting the question of murder in the first degree and murder in the second degree to the jury. Under the evidence there is no offense higher than manslaughter. Under the very best view for the State, all we have here is two foolish, ignorant, country boys starting in for a "fist fight," "a fair fist fight;" after the fight starts the deceased uses a club, defendant uses a knife; no premeditation, no deliberation; no malice aforethought; a fist fight, a misdemeanor. Kelly's Criminal Law (3 Ed.) sec. 351; State v. Kretschmar, 232 Mo. 29, 42; State v. Eastman, 240 Mo. 241.

North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.

The assignments raise, or attempt to raise, a question on the legal sufficiency of the evidence to sustain the verdict as against the defendant Fred Shade. The assignments are not sufficient under the 1925 Act to raise the question of the sufficiency of the evidence. When the evidence is complained of as insufficient, the appellant should specify, in his motion for a new trial, what element or elements of the crime, if any, were not shown or proved by the evidence. There was substantial evidence to show that defendant Shade was present, aiding, abetting and assisting Odbur at the commission of the crime.

OPINION

White, J.

Defendants Henry Odbur and Fred Shade were charged with the murder, March 22, 1924, of Ernest Willett. They were tried and convicted of murder in the second degree, November 20, 1925, in the Circuit Court of Pike County; the punishment of Odbur was assessed at thirty-five years, and that of Fred Shade at ten years, in the penitentiary. They appealed in due form.

The scene of the homicide was on the levee along the Mississippi River in Pike County. The actors were habitues of the river bottom, small tenant farmers or farm hands. The defendants, and some of their witnesses, had lived on each side of the river, but apparently always in the bottom. But wherever they lived they had not been hampered by the entanglements of education. They added to the illiteracy percentage of Illinois or Missouri, dependent upon which side of the river the census enumerator found them. Ernest Willett, the man killed, was twenty-one years of age; Odbur was twenty-one, and had been married three years. Shade was twenty-four, had been married five years, and could neither read nor write, yet he was not without certain cultural accomplishments, for he played the French harp.

The evidence most favorable to the State, which must have been believed by the jury, shows that on the night of March 22, 1924, a dance was had at the home of one Aaron Niffen, at which Shade furnished the music with his French harp. This habitation was outside the levee -- which means between the levee and the river. It contained one room in which was all the furniture of the household. Thither went Shade and Odbur together on horseback; they hitched their horses in a shed across the levee from the house. Shade's wife with her two babies had gone there early in the afternoon, Mrs. Niffen being her sister. Some twenty-five or more persons were present, including Willett, who later was killed. There had been no ill-feeling or difficulty between the defendants and Willett at any time. There was no trouble at the party. The dances were square; none of the demoralizing effects of the modern round dances.

The party broke up at eleven o'clock, and Ernest Willett started home, walking with two girls, Bertha Blansett, seventeen years old at the time, and her sister Flossie Blansett, fifteen years old. With them were two boys, George Shade, fifteen, and Everett Shade, thirteen. These five persons walked on the levee up the river, which at that point runs from the northwest. Before those left the house, Shade and Odbur had gone across the levee to the shed to get their horses. As Willett and the girls got upon the levee Odbur called to Bertha Blansett to come down there, he wanted to see her, or words of similar import. Ernest Willett had been "keeping company" with Bertha Blansett for some time. He resented this remark as having some insulting intimation; said he would make Odbur take it back, and offered to meet him half way and fight. He walked half way down the levee, applied to Odbur a vile epithet, but the latter mounted his horse and with Shade rode away down the road. That was the first encounter of the evening.

Willett and his party then continued their journey on the levee. In the meantime a wagon left the party, driven by one Shoemaker, containing Shade's wife and two babies, a boy named Lester Niffen, and two men, William Cozad and Fred Nelson. Thus the three parties started home from the dance in the general direction up the river, those in the wagon and the men on horseback pursuing the road, and the party on foot walking on the levee. Presently Willett and those with him came to where the road crossed the levee, and there met Shade and Odbur. There occurred the second encounter of the evening. Odbur suggested that Willett wanted to fight "back there" and asked if he wanted to fight. Willett replied that he was ready to fight a "fair fist fight." Abusive language was exchanged between the two men and they began to fight. The evidence is conflicting as to which struck the first blow. According to some, Willett knocked Odbur down; according to others, Odbur knocked Willett down, and Willett got up and ran away. According to the two girls, Odbur drew a knife, already open, from his pocket and struck at Willett with it. Willett dodged the knife and ran away, followed a short distance by Odbur, in pursuit, who called to Bertha that her "pal was hid in the weeds." The girls saw Willett no more alive. Thus ended the second encounter, with no casualties.

A little later Willett went to the house of one Harve Niffen, near by, and tried without success to borrow a gun. Further on the wagon containing Mrs. Fred Shade, her two babies, Lester Niffen, Cozad and Nelson, were overtaken by Shade and Odbur. Odbur told them he came near having a fight "back there;" that Willett had called him a vile name. He thought he would go back and whip him, and asked if "you fellows will go back and see fair play?" Cozad promptly accepted the invitation, volunteering the information that "fight" was his "middle name." So the four went back, Shade and Odbur on horseback, Cozad and Nelson on foot; they came upon Willett who was, it seems, at or near the fence along the levee. He and Odbur met at the fence and were seen to fight. This was the third and last encounter. According to all the evidence Willett struck Odbur on the head with a piece of burnt timber, which left its mark and laid Odbur senseless. He was picked up by the other men, put on his horse and taken home. Later in the night the boy, Lester Niffen, saw Odbur take out his knife with blood on it. Odbur said he struck at Willett with that knife, and didn't know whether he had hit him or not, but he guessed he had. Other evidence showed that he had a knife with blood on it that night, and said that he had struck three times at Willett with his knife. After striking Odbur down Willett ran away into the weeds and was seen no more alive. His body was found the next day about a quarter of a mile from the house where the dance had been, and about twenty-five yards from where horse tracks and foot-prints showed the ground was trampled. A cut was across his windpipe, which partially severed it; a stab straight down in his left shoulder, which severed an artery, caused him to bleed to death, according to the testimony of Dr. Lewellen. The physician said Willett might have run a hundred yards after that wound before he expired.

None of the parties, including Odbur, knew anything about the fatal effects of the fight until the body was found the next day. Odbur's remarks and conduct after the fight indicated he was not conscious of having delivered a fatal blow. The next day the news went around that a mob was forming to lynch Odbur and Shade. The evidence is uncontradicted that they were frightened by that rumor. They were put across the river to the Illinois side by some friends, stayed away several months and went under assumed names until they finally were captured and brought back for trial.

I. It is urged here that the case should be reversed and remanded as to Odbur, because a case was not made out against him, and his demurrer to the evidence should have been sustained.

It is doubtful whether, in the beginning, Odbur intended anything...