The State v. Walker
| Decision Date | 22 May 1906 |
| Citation | 93 S.W. 384,196 Mo. 73 |
| Parties | THE STATE v. WALKER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ozark Circuit Court. -- Hon. Jno. T. Moore, Judge.
Reversed and remanded.
Seth Conrad and Livingston & Livingston for appellant.
(1) There is no evidence, fact or circumstance in the whole case upon which a conviction can stand. The evidence, both for the State and for defendant, makes out a complete, absolute perfect case of self-defense. (2) We challenge the State to find in this record one iota of evidence, any fact or circumstance, that would in the remotest degree authorize or justify the giving of the qualified instructions on self-defense. The giving of these instructions, whatever view the court may take of the case, is palpable and inexcusable error.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
The instructions were full and complete in every respect; they properly defined murder in the first and second degrees reasonable doubt, the burden of proof, the weight to be given to defendant's testimony, the credibility of the witnesses and self-defense. If any error was committed, said error was in favor of the defendant. State v Hudspeth, 159 Mo. 196; State v. Inks, 135 Mo. 638; State v. McCarver, 194 Mo. 717.
At the August term, 1905, of the Ozark Circuit Court, the prosecuting attorney within and for said county filed an information charging the defendant Walker with murder, in the first degree, of one Guy T. Harrison, at the said county, on the 21st day of July, 1905. The defendant was arrested and duly arraigned, and at the same term was put upon his trial, and was convicted of murder in the second degree, and his punishment assessed at ten years in the state penitentiary. From the conviction and sentence he appeals to this court.
The evidence on behalf of the State tended to prove that the deceased, Guy T. Harrison, was a member of the bar, residing at Gainesville, Ozark county, and about thirty-eight years of age, and weighed about 180 pounds, strong and vigorous, and the defendant is about forty-five years of age, small in size, and had for many years been crippled and deformed as the result of rheumatism. Mr. Harrison, the deceased, owned a farm near the town of Gainesville, but resided in the town. The defendant lived on a farm adjoining this farm of the deceased. Dr. White testified that on the 21st of July, 1905, he examined the body of Guy T. Harrison, who was dead at the time; he found a gun-shot wound about two inches and a half below the collar bone, on the right side and just to the right of the breast bone. The bullet seemed to have entered something like two and a half inches below the collar bone on the right side of the breast bone and ranged backwards and somewhat downwards to the left. The ball went directly through the body and the deceased was shot from the front and the ball entered into his front. The shot was necessarily fatal. He testified further, that on the day after the killing he saw the defendant, and found in the corner of his mouth on the upper lip a bruise, the lip was mashed, and when he raised the lip he could see that the membrane was cut; there was also a small cut under his right eye as if he had been struck on his cheek bone; it was still black under the eye, and he gave him a wash to treat the wound in his mouth.
D. D. Turnbaugh testified that he resided in Gainesville and was publisher of the Ozark County Times on the 21st of July, 1905. He was acquainted with Guy Harrison in his lifetime; he examined the place where Harrison was killed on that day; it was located in a little plum thicket about thirty-five or fifty feet from the public road. There was a little open place in this thicket some four or five feet square in which the body was lying; this place was some four or five feet above the body of the branch which runs near there. He testified that a man standing in that little open place could not see a man going along the road, nor could a man going along the road see anyone in that open space without stooping down and looking under the grove; he testified that he made investigations for bullet marks on the timber and found bullet abrasions on three limbs, and he took a position to get in line with these abrasions; to have made the abrasions, in his opinion, a man would have had to get down on his right knee and used the left as a rest. They were not on a level, the bullet that made the abrasions was rising a little.
Mr. R. Q. Gilliland testified that he went to the scene of the killing on the day it occurred and looked for a trace of a bullet, but did not find it, but on the next Tuesday following the killing they found the course of the bullet; it had hit two limbs on some plum bushes; they were slightly ascending; he was of the opinion that a man would have to be down on his knees to have fired the ball in the direction it took.
Fait Hayes testified that he was working for the deceased on the day he was killed; he was on the farm of the deceased; he heard some four shots that morning within an hour and a half; no two of them were fired near each other; he was about a quarter of a mile from the place when the last shot was fired. Asa Scott was with him; Scott was cutting and the witness was hauling timber; just before the fourth shot was fired he heard some talking down where the body of the deceased was afterwards found, but he could not distinguish the words; he was just getting on his wagon when he heard the last shot fired and when he had gone about 150 yards, he heard his name called; he met another man by the name of George Scott, and heard some one call him Fait; when he got down there, he found Mr. Walker and Glennie Harrison, the son of the deceased. Addressing the defendant, he said, "What is the matter Lum?" Defendant and Glennie were then about fifty yards from where they found the body. He testified that he ran; going down to this place he heard hogs squealing and dogs barking and the shooting and someone calling him, and that was why he ran. When he asked the defendant what was the matter, the defendant said, "I have killed Guy." He inquired of defendant, "Is he dead?" and he answered, "Yes, he is dead," and he said, "You go to town and take the news." Witness then said to defendant, "Lum, this is a bad thing;" defendant said, he went into the thicket and took Glennie with him, also the defendant with him; when he reached the body of the deceased, he said, "I do not see any gun," whereupon Glennie, the son of the deceased, said, "His gun is under him, he was lying on his face and I turned him over on his back." And Glennie then reached under his father's body and picked up the gun by the stock. Witness said, "Glennie, is that your father's gun?" and he said, "Yes;" he then said, "Glennie, where were you?" and he answered, "I was down there in the field." He further stated that when he said to the defendant, "It is a bad thing," the defendant said, "Yes it is a bad thing, but I had to do it, or get shot myself;" he said "that the deceased came on him with his gun." He testified that when Glennie took the pistol from under the body of his father, it was cocked, the hammer was clear back; he thought it was a self-acting pistol; he had the gun in his hand afterwards that day, it was still cocked; it was still lying there when he came back. Mr. Conkin, the sheriff, picked it up, he tried to let the hammer down, he put one thumb on the hammer and pulled on the trigger, but it would not go down, and finding that it was fast, reached it over to witness, but witness said to the sheriff, "Do not hand me that thing cocked in that way," and the sheriff took it back and laid it down. The sheriff tried to break it the first time and could not, but he took it back and let it down. On the Monday after the killing, witness had a conversation with the defendant, the defendant came down to where witness was working. In that conversation, the defendant said he was down there getting some hogs out of the field on the day of the killing and had trouble trying to get them out, and they ran into the thicket and he followed them in there; he broke his shoe string and set down to tie his shoe string, and while he was sitting there tying his shoe string, the deceased came up the road and stopped and looked up the road and then down the road and defendant spoke to the deceased and said, "Guy, what are you doing here?" and the deceased answered, "I am killing these d--- hogs, by G---." Defendant says, "Guy, don't you know it is wrong to butcher up a man's hogs that way?" whereupon deceased says, "No, I am going to kill every G--- d--- one of them, and you too," and then he said the deceased just came right up to him before he could get up to do anything at all; he never thought of having any trouble with him only to talk the matter over, but Guy, the deceased, came right up on him and drew his gun, and he kind of stumped his toe as he came and stumbled towards him and punched defendant in the mouth with his gun, and he, defendant, discharged his gun about that time; when Guy came up to him, the defendant's gun was lying to the side of him and he said, when the gun was discharged, "Lord have mercy, I have let my gun go off." Witness testified that he had known the defendant six or seven years, and knew his physical condition; that defendant could not straighten out his fingers. He testified that defendant told him how he cocked his gun, he did it with the side of his hand; he said he was still down...
To continue reading
Request your trial