245 Mo. 483 | Mo. | 1912
— Defendant appeals from a conviction upon an information charging murder in the second degree. The jury found him guilty as charged, and fixed his punishment at ten years in the penitentiary.
The defendant operated a pool room and restaurant in the town of Taylortown, St. Francois county. As agent for the owner, he had rented a house near by to one Stegall, who lived therein with his wife and children, and with whom lived the deceased, who was Stegall’s father-in-law. During the day preceding the night of the homicide the deceased had indulged freely in liquor, and was in an ugly frame of mind. He quarreled with Stegall during the day, and on the evening in question frightened Stegall and his family out of the house. After leaving the house, Stegall and his wife and baby went to defendant’s place of business, stating to defendant that James Meeker, the deceased, was in a dangerous frame of mind, and was theatehing to kill him, Stegall; also that Meeker had a knife which he was prepared to use. Having attempted to get hold of an officer, and failing, Stegall requested the defendant to go with him to his home in order that he might get his hat before going to seek an officer of the law.
The testimony for the State shows that, upon reaching the home of Stegall, the deceased was found sitting in a chair. The defendant reproached him for his conduct, and there was some exchange of violent language between deceased and the defendant. As defendant was standing at the door, and apparently about to leave, deceased approached him and applied to him a vile epithet, and further defied any one to drive him out of the house, whereupon defendant struck him on the head with the hammer, inflicting a fatal wound.
The defendant’s evidence tended to show that the deceased was attempting to cut defendant with a knife when the fatal blow was struck.
The court instructed on murder in the second degree, manslaughter in the fourth degree, and self-defense. Objections are made here to some of the instructions given and the rulings on evidence.
I. The objections to the instructions cannot he considered here, because the defendant did not call the trial court’s attention to them in his motion for a new trial. That motion makes no reference whatever to instructions. We cannot depart from the rule well established in this State that matters will not be considered in this court which are not called to the attention of the court below in the motion for new trial. It is a rule firmly implanted in our jurisprudence that the trial court must be given an opportunity to correct its alleged errors before this court can be asked to consider them. It may be remarked, however, in passing, that the instruction for manslaughter in the fourth degree was a gratuity to the defendant on the part of
II. It is urged that, under the evidence, the defendant is not guilty of murder in the second degree. Whether or not he is guilty was a question for the jury. The question for us to determine is, whether or not there was substantial testimony introduced by the State making up a case of murder in the second degree. Clearly the evidence was sufficient. According to the evidence for the State, the deceased made no physical assault upon the defendant, threatened none, and did no more than to apply opprobrious and insulting epithets to him. The killing, under the circumstances as detailed by the State, was, without doubt, murder.
III. The defendant complains of the following ruling of the court. A witness for the State testified as to the vile language used by the deceased, and that there was more or less excitement about the premises, when he was asked this question:
“Q. In fact, you expected the old man to carry out the threat he made to Stegall? A. Yes, sir.”
An objection to this was sustained. Obviously this ruling was correct.
Referring to what took place between himself and the deceased as they were returning from Doe Run on the day preceding the night of the homicide, Stegall, while on the stand, was asked this question:
“Q. What trouble or controversies or quarrels, if any, did you have on your way from Doe Run to Flat River ? ’ ’
Again, where a witness for the State testified that at the time the family of Stegall left the house, in fear of the deceased, he heard some women screaming, namely, Meeker’s wife and daughter, he was asked the question: “What were they saying?” This question was fully answered as follows: “I cannot tell you what they was saying hardly, only that they was hollowing and begging Langley to go down there, that he was going to kill the baby, or something like that, and he said, ‘I can’t go, I haven’t got my pants on; go down and get Bostwick.’ ”
After this answer was given, the prosecuting attorney objected,' and after considerable colloquy between counsel on both sides and the court, the objection was sustained, but the testimony given in answer to the question was not withdrawn from the jury. We cannot perceive any injury to the defendant in this ruling. The question had been answered, and the answer not withdrawn. Furthermore, as to just what the women were saying was not material. The evidence was offered for the purpose of showing that Bostwick did not seek an encounter with Meeker, but went to the house in compliance with the request of parties who had been driven therefrom. All this clearly enough appeared from the evidence received. ' Nor is it claimed by the State that Bostwick went to the house with a felonious purpose. It may be conceded that Bostwick accompanied Stegall to the house for the sole purpose of putting a stop to the disturbance and without any unlawful intent. After reaching there, however, it appears that his anger was aroused
. Finding no .reversible error in the record, the judgment is affirmed.