The State v. Smith

• Decision Date: 28 February 1893
• Citation: 21 S.W. 827,114 Mo. 406
• Parties: The State v. Smith, Appellant
• Court: Missouri Supreme Court

21 S.W. 827

114 Mo. 406

The State v. Smith, Appellant

Supreme Court of Missouri, Second Division

February 28, 1893

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.

The defendant, a negro, indicted for the murder of one of his own race, George Cameron, by shooting him with a pistol, being put upon his trial, was found guilty of that offense in the first degree, and judgment having been rendered on the verdict and sentence passed upon him, he appeals to this court.

The indictment is in due form and the verdict complies with the law in specifying the degree of the crime of which the defendant was found guilty. No assignment of errors has been made, nor is there any brief of counsel filed on behalf of defendant, though time was granted by this court for that purpose. But it is the statutory duty of this court, even though no assignment of errors be made or brief filed in a criminal cause, to render judgment on the record before us. Revised Statutes, 1889, sec. 4297.

Engaging in the performance of this statutory duty, we find many grounds stated in the motion for a new trial which will hereafter be discussed or else noticed in a manner sufficient for the purposes of the present investigation. With this end in view, the record has been carefully read. As will presently appear there is considerable conflict in the testimony.

The defendant's version of the affair is in substance as follows: "Between twelve and one o'clock I met Jim Cameron, George Cameron, Tim Jackson and Mr. Knauer in Knauer's saloon; that, as soon as I went in, George Cameron said, 'I am here yet, you black son of a bitch,' and I said, 'that is all right;' the first trouble started over money; Jim Cameron and George were shaking dice and asked me to hold the stakes, which I did and the quarrel commenced between me and George Cameron after the fuss commenced I walked outside the saloon and went home; I returned to the saloon in an hour or an hour and a half, where I met the same parties; as soon as I went in Cameron said, 'I am here you black son of a bitch;' I replied to him that I had as good a right there as anybody, if I behaved myself; then Knauer said, 'get out of the saloon, I will have no fussing here; this is Sunday;' I went outside, and was there an hour or an hour and a half before they came out; when they came out they said, 'where did he go?' Cameron made the remark 'I don't know;' Tim said, 'less find him and knock him in the head;' Cameron said, 'I will fix him;' then I stepped out of the barn and asked, 'what do you want out here?' and then went in the saloon; my little boy was there, and as I was going in the saloon called me and said, 'why don't you make up with the Camerons?' I replied that I would make up with them if they were willing to do it; with that Cameron said he would knock my brains out rather than make up with me; Jackson said he would do it; I staid out doors about half an hour, or maybe an hour; then they came back in the saloon where I was; they commenced on me again, and I went out in the back yard; at the time the shooting took place George Cameron had hold of the gun, and was going to kill me with it, at least he said he was; just prior to the shooting George Cameron grabbed the gun and said, 'give me the gun, I will kill the black son of a bitch; the two Camerons and Jackson and this man Best and myself were in the back yard; Best was there just a little while before the shooting took place; Jim had the gun at this time; George had the gun when I fired; Cameron fell at the crack of the pistol, and I ran; I saw Jim after me with a shotgun; he followed me one hundred yards past the elevator; at the time I fired that shot I believed that they were going to shoot me; I mean by 'they,' George Cameron; I went to Boonville after the shooting; the reason I went there was that I was scared; before the shooting I had everything packed up to go there; my family was all there except one boy; during the difficulty Tim Jackson had a soda-pop bottle in his hand; he said he would knock my head off."

On cross-examination defendant said: "I remained in the back yard an hour or an hour and a half after leaving the saloon, before the Camerons and Tim Jackson came out; the first thing I heard them say after they came out was when George grabbed the gun to shoot me with, George said, 'give me this gun and I will kill that black son of a bitch;' that all took place when he grabbed the gun; this was not the time that Tim Jackson had the soda-pop bottle; that was another time when they came out; they came out twice together; when they came out the first time Tim had the bottle in his hand, and they looked for me when I was sitting in the shed; they could have seen if they had come out there; that is when they said, 'where is that black son of a bitch? where did he go?' and Tim said, 'less find him,' and George said, 'I will fix him;' then I came out and said, 'what are you fellows following me for?' They said, 'if you want a fight you can have it;' I said, 'I don't want to fight;' they kept on talking and I went in the saloon, and Tim said to my little boy that he would make up with me, and threw down the soda-pop bottle; neither had the shotgun at that time; after I went in the saloon it was fifteen or twenty minutes before they came in; I went out of the saloon again; this was the last time I was in the saloon; George and Jim came out again; this was the time they had the gun; Tim Jackson followed them; George grabbed the gun and said, 'I will shoot that black son of a bitch;' just as he grabbed the gun I shot; Jim slung George away from him; I did not shoot when George said 'give me the gun,' and grabbed it; these men were not laughing when they were scuffling over the gun, and I did not laugh; George grabbed the gun and jerked it loose from Jim and aimed it at me, and then I shot him.

The testimony of the defendant sufficiently outlines and indicates the theory of the defense, which is that the scuffle over the gun arose out of the endeavor of George Cameron to wrest the gun from his brother in order to shoot Smith, and, having succeeded in getting possession of the gun, and being about to kill Smith with it, the latter shot George in self-defense. And so the conflict in the testimony turns in a large degree upon the point whether the scuffle over the gun between the two brothers had ceased when the defendant shot George.

Hogan, a state's witness, testifies that he came up after the scuffle about the gun was over, and he further testifies that his attention was attracted by loud talking in the back yard of the saloon, a locality fenced in by a light board fence, four and one half feet high; that, arriving there, he saw George and Jim Cameron and Smith, who were the only parties present. At that juncture, Jim Cameron was standing still with his hand holding the shotgun at "order arms," that is, with the butt resting on the ground; George was standing still also, about four feet from Smith, with his right hand up and his left hand down. Hogan saw no weapon in his hand, and, as Hogan came within hearing, George said, "Smith, you know you done me wrong," whereupon Smith just pulled his pistol down and shot him, saying, "take that," and then ran.

Jackson, another state's witness, testifies that the scuffle between the brothers over the gun after Jim brought it out of the saloon was entirely in play; "they scuffled a good while and I stepped and got the gun; I was afraid it might be loaded and shoot both of them, and I took it and set it up by the side of the house; Jim picked it up and walked into the saloon, and took the gun in with him and after he had gone into the saloon, Smith said, 'Does he want the gun to shoot me with; if he does, let him have it;' that, upon this remark being made, George and Smith commenced to quarrel again and quarreled about fifteen minutes; George had no weapon in his hand and was just standing there; they began to talk to one another pretty rough; don't know exactly what they said, then Smith stepped back from George, pulled out his pistol and shot him, saying something as he did so; then he held the pistol up, backed out of the gate and ran. At the time when Smith shot George, Jim was in the saloon. When the scuffle for the gun was going on, George said nothing about shooting Smith;" that witness did not pick up soda bottle and threaten Smith with it, nor did witness offer to make up with Smith, nor were the brothers scuffling at or about the time the shooting took place; that took place a little while afterwards when Jim was in the house.

Lofton, another state's witness, testifies that he witnessed the brothers wrestling over the gun, then he went into the saloon and in about five minutes he heard the report of a pistol and looking out saw Smith with it; that he did not see Jim when the shot was fired; that he saw George, but saw nothing in his hand, nor did he think he had anything; did not see Jim after the shooting.

Jim Cameron, state's witness, also testifies that he and his brother were merely playing with the gun; that it was not loaded when they were scuffling, nor a shell in it that day; that after the scuffle was over he took the gun into the boarding house which adjoined the saloon, or into the saloon, does not remember which; that about forty-five minutes, or may be not so long thereafter, the shooting occurred when witness was in the saloon, and then he got the gun from the boarding house and pursued Smith.

The testimony of John Knauer, witness for the defense, shows that the scuffle and wrestling over the gun was mere play; that the Cameron boys were scuffling over the gun and rolling around in the yard;...