The State v. Paxton

• Decision Date: 12 February 1895
• Citation: 29 S.W. 705,126 Mo. 500
• Parties: The State v. Paxton et al., Appellants
• Court: Missouri Supreme Court

29 S.W. 705

126 Mo. 500

The State v. Paxton et al., Appellants

Supreme Court of Missouri, Second Division

February 12, 1895

[Copyrighted Material Omitted]

Appeal from Hickory Circuit Court. -- Hon. Argus Cox, Judge.

This appeal results from the conviction of the defendants of the crime of murder in the second degree. John W. Paxton and Theodore Paxton are brothers and Ort Paxton is the son of Jno. W. The two elder Paxtons are the nephews of Jno. W Quigg, whom they killed, and Ort Paxton is the grand nephew of Quigg. The jury assessed the punishment of Jno. W. and Ort at fifteen years in the penitentiary, and that of Theodore Paxton at ten years.

It appears incidentally in the record that a deadly feud existed between Quigg and the Paxtons. Both Quigg and John W. Paxton had lost a son by the hand of violence; Paxton's son Siegel was slain from ambush, and, perhaps, Quigg's son Enos in the same way. Before the death of the latter, he had been arrested, charged with the murder of Siegel Paxton, but what was the result of the prosecution is not disclosed.

The homicide on which this prosecution is based occurred in Wheatland, Hickory county, on the eighteenth day of November 1893, and the weapons used were revolvers. The evidence in outline is to the following effect: The shooting occurred in the afternoon. In the morning of that day, Quigg, who was some seventy-three years of age, and quite decrepit, paid Robert Allen some money. Just then Jno. W. Paxton and Ort his son, appeared. John W. stopped a little distance off; Ort came up close to Quigg, when the latter said, "Good morning, Ort," and Ort replied, "Go to h l, you G d d old son of a b ." Quigg said, "Ort, you ought not to talk to me in that way; I have never done you any harm." About that time Jno. W. Paxton came up and said, "No, G d n you, but you killed his brother." Quigg replied, "John, I didn't do that." John Paxton answered, "I do not say that you did it, but you had it done." To this Quigg said he would not "talk to him in his own crowd; and Ort said, "I will talk to you in any d d crowd."

The bitter state of feeling of the Paxtons toward Quigg was further exemplified by an occurrence which took place later in the forenoon when the latter was seen at a distance, shaking hands with some one, when John Paxton remarked, "the d d old son of a b has found somebody that will shake hands with him." After that, two dogs were seen fighting; Quigg was in sight some distance away, and John Paxton, without naming anyone, said he "would like to see those dogs eat the d d old son of a b 's heart."

Along quite late, it seems, in the afternoon, John and Ort Paxton were seen in a vacant space some ten feet wide between two buildings, and John Paxton was seen buckling on what appeared to be a pistol belt, and the butt of a pistol was seen, but whether the pistol was in his hand or in the belt, does not appear. The Paxtons, then, all of them, appeared on the sidewalk in front of Powell's drug store, adjacent to this vacant space. Meanwhile Quigg was preparing to return home, and his wife being at the hack, one of the neighbors was hitching up the team for them. This was in sight of where the Paxtons were standing. Being up at one of the stores but a few moments before this, Quigg expressed himself in a way, and acted in a manner, that indicated he feared trouble with the Paxtons. He went down to the hack, the Paxtons, however, still remaining in front of Powell's drug store, and evidently watching Quigg's movements. When Quigg reached the hack, he put some things into it; he then stepped out in front of the team and looked down to where the three Paxtons were standing. Thereupon Quigg reached back into the hack, got his Winchester rifle, and remarking, as one witness states, that he "would walk down by them" (the Paxtons). Another witness says Quigg swore and said, "I am going to see if they mean it," and proceeded to do so. Upon this, Goodman, the neighbor, immediately unhitched the team, and hitched them again to the rack, apparently anticipating trouble would arise between Quigg and the Paxtons, who were still standing in front of Powell's drug store, which was some sixty yards from the hack. But when Quigg started in their direction, two of them, John W. Paxton and Ort, his son, immediately disappeared in the vacant space heretofore mentioned between Powell's drug store and the building beside it, leaving Theodore Paxton still standing in front of the drug store. Other remarks are attributed to Quigg as he left the hack, and as he went toward Powell's drug store; one to the effect that he "would show them (the Paxtons) that he was not afraid of a little war;" that he "would lay the sons of b in their holes," etc., etc.

As Quigg was advancing up the street where Theodore Paxton was, the latter made insulting motions and gestures toward him, said "yaw, yaw, yaw," and, as Quigg passed him, Theodore Paxton said, "shoot, you son of a b ," or some such words, when Quigg, who had gone a little past Theodore Paxton, say some ten feet, instantly turned, and, making some remark, took his gun in both hands, and struck Theodore with it on the right side of the head, split his ear in two, and caused him to reel under the force of the blow, and the blood covered his cheek. On the instant that this blow was given, out rushed John W. and Ort Paxton from where they were ensconced, and began shooting at Quigg with their revolvers, then being within a few feet of him. John W. Paxton seized Quigg's gun, and, holding it so Quigg could not use it, continued to ply his pistol on him, Ort Paxton doing the same until Quigg fell, pierced with several balls, when John Paxton, having wrenched the gun from Quigg, struck him several blows on the head as he lay prone on the ground and gasping in death.

There is some testimony also, that Theodore Paxton also seized Quigg's gun immediately that he received the blow, and there is testimony that Theodore Paxton, also, fired on Quigg with a revolver. Though this testimony is not as distinct and positive as that in regard to shooting being done by John W. and Ort Paxton, Theodore Paxton, however, on the witness stand, denied that he had a pistol that day, and there is testimony of others that they did not see him shoot. John W. Paxton, after striking Quigg over the head several times with the gun, said, holding it up, "Here is the gun that killed my boy, and I killed him," referring to Quigg. Just then Mrs. Quigg ran screaming and crying to where her husband lay, and, taking his head, placed it in her lap, when Jno. W. Paxton said, "You needn't cry, damn you, you ought to have thought of this long ago." The foregoing are the facts in substance, laboriously dug out of a manuscript record without an index, and paged occasionally by grouping the figures of two pages together in the middle of a page; for instance, 127, 128, leaving whole pages without a mark or sign to indicate their number.

The instructions given at the instance of the state were:

"1. The court instructs the jury that if they believe and find from the evidence that the defendants or either of them, at the county of Hickory and state of Missouri, at any time prior to the finding of the indictment, willfully feloniously, deliberately, premeditatedly and of his malice aforethought, shot and killed John W. Quigg, Sr., in the manner and by the means charged in the indictment, they will find such defendant or defendants guilty of murder in the first degree, and so say by their verdict.

"2. If the jury believe and find from the evidence that the defendants or either of them, at the county of Hickory and state of Missouri, at any time within three years next before the finding of the indictment, willfully, feloniously, premeditatedly, on purpose, and of their malice aforethought, shot and killed John W. Quigg, Sr., by the means charged in the indictment, they will find such defendant or defendants guilty of murder in the second degree, and so say by your verdict.

"3. The word willfully, as used in the indictment and instructions, means intentionally, not accidentally.

"The word feloniously means wickedly and against the admonition of the law. Malice, in its legal sense, does not mean mere spite or ill will, but it means a condition of the mind that indicates a heart devoid of social duty and fatally bent on mischief. Deliberately means in a cool state of the blood, and, as applied to an act, means that the act is not done in the heat of passion, or on sudden provocation, and that it was prompted by deep malignity of heart or motive of revenge.

"Premeditatedly means thought of beforehand for any length of time, however short.

"Malice aforethought means with premeditation and malice.

"4. If the evidence justifies it, the jury is at liberty to find one or more of the defendants guilty and the other or others not guilty, or all or any of them guilty or not guilty, as the evidence warrants.

"5. The defendant, Theodore Paxton, is a competent witness in his own behalf, and his testimony should be received and weighed by the same rules that govern the testimony of other witnesses, but in passing on the weight due to such defendant's testimony the jury may consider the fact that he is the defendant and his interest in the result of this case.

"5a. If the three defendants had formed the design to kill Quigg and had mutually agreed to accomplish such design, and if, in order to obtain a pretext or excuse to kill Quigg, the defendants sought, provoked or brought on the difficulty that resulted in the death of Quigg, then there is no self-defense in the case. And if, in the difficulty so sought, provoked or brought on by defendants for the purpose of obtaining a pretext to kill Quigg, defendants...