266 Mo. 82 | Mo. | 1915
Appellant was indicted in Lafayette county for murder in the first degree in having shot and killed one Henri Herve. Upon a trial she was found guilty of murder in the second degree and sentenced to ten years’ imprisonment in the penitentiary. From that judgment she appeals to this court.
The testimony for the State discloses that the appellant, Mariane Cariou, and the deceased, Henri Herve, lived at Summit Mine, near Lexington. The appellant lived with her husband and sister-in-law, Marie Cariou. The deceased boarded with Leon Peton. Deceased had been keeping company for some time with Marie Cariou. On March 27,1913, a short time before noon, appellant came to Peton’s and asked to see the deceased. Appellant came into the room where deceased and Amos, Ms roommate, were, and asked the former where Marie Cariou was and if she was in good hands. Deceased said that he had taken her to town and she was going to Pete Roland’s. Appellant then went home. At about 12:30 or 1 o’clock p. m. the appellant came to the Peton home looking for deceased. Amos told her that he was not there. Albert Holm and John Llierberg were at the time passing through the Peton yard. Deceased came out of the cellar of Peton’s house and was in front of Llierberg and Holm. Llierberg saw appellant run toward deceased, who was directly in front of Holm, with a revolver in her hand, and he called to Holm to look out. Holm thought that deceased was playing some trick on him, but turned and saw the appellant standing behind Mm with a revolver and immediately jumped to the side of deceased. Appellant at this time said, “He took my sister-in-law away,” and deceased said, “You would not kill me for that.” Appellant said, “Yes, I’ll kill you.” Deceased started to run and after he had gone four or five steps appellant shot him. . He went four or five steps further, fell and died almost instantly. The shot entered
Leon Peton took the revolver away from appellant; there was one empty shell in it and four loaded ones. At the time of the shooting deceased had no weapon, nor was he resisting appellant in any manner.
Shortly before the shooting appellant called Florinda Fiora, a neighbor, over, and said she was going to kill that boy, meaning the deceased. The reason she gave for the intended kililng was that he was going to take Marie Carion away. Mrs. Fiora told appellant not to kill him, but she answered that it didn’t make any difference, she would kill him anyway. She had a pistol in her hand at the time. When she went to Peton’s she had the pistol under her apron. Just before the killing deceased said not to kill him, that he was not the cause of it, and after he was shot he fell and said, “1 am lost.”
After the shooting appellant asked for a gun and said she wanted to kill herself. She tried to kill herself with an iron and an empty bottle.
Marie Cariou, twenty years old and a native of France, testified that she had been in this country about one year. She left the Cariou home on the morning before the killing, because she was not satisfied there. 'She told appellant she was going to Roland’s on the evening before; that she intended to go to work for Roland. The deceased met her that morning and they got into a machine and went to the Grueguen home. Arrangements had been made for her to work at Roland’s. Appellant brought her to this country and paid her expenses. A few days before she left her brother’s he offered her $10 a month to remain there. She told him she did not want to stay. Deceased had never taken any liberties with her and quit visiting her on account of appellant’s objections. Deceased had nothing to do with persuading her to leave and
The appellant went home after the shooting, got her little boy and started up the road toward town.
The evidence for the defense is substantially as follows:
Appellant testified that: In September, 1913, she went to Prance and returned in November, bringing her sister-in-law, Marie Cariou, with her. Marie Cariou began to go with deceased and appellant did not object until one day she found them locked in a bed room. When the door was opened Marie was sitting on the edge of the bed and Herve sat beside her. Appellant told her to come into the other room and deceased stayed in the bed rood. Marie, in answer to the question as to how it happened, said that she was weak and could not resist him. Deceased came to see Marie after that, but appellant would never leave her alone with him, and would not let her go out with him unless she accompanied them.
On the Wednesday before the shooting Marie talked with her about leaving. Appellant told her not to leave, that she would save her honor. She told appellant she was going to work for Pete Roland. She left the house on the morning of the shooting with her valise. John Draulic came and told appellant that Marie and deceased had gone away in an automobile. Appellant said, “Tes, they may have gone to get married, ’ ’ and Draulic said perhaps they have gone to Roland’s. Later Draulic told appellant that deceased had returned without Marie. Then appellant went over
John Draulic testified that appellant told him that deceased was a good boy and she liked him, but she was mad because Marie left home. The defense introduced testimony that deceased was the agent for a paper entitled, “Consciente Generation.” The appellant objected to Marie reading this paper. The State showed that appellant read it frequently ánd was a subscriber to it, and the paper had been coming to her house addressed to her. She denied that she was a subscriber or that she read the paper. Marie Cariou, on rebuttal, denied that she had ever had any improper relations with deceased or that she ever so stated to appellant, or that appellant had ever found her locked in a room with the deceased.
The reasons urged for the admission of this testimony that it afforded provocation for the killing is without support upon any theory of the case. There is no rule of evidence which permits the introduction of testimony to corroborate irrelevant statements, and as the periodical and catalogue had no legitimate probative force of themselves the contention is without merit, even if it had been preserved for. review in the motion for a new trial, which was not done.
In State v. McKinzie, 102 Mo. l. c. 627, it was held that the .trial court should have defined “that heat of passion produced by a just cause of provocation which will reduce the homicide to murder in the second degree,” no reason being assigned or case cited in support bf this declaration.
In State v. Strong, 153 Mo. 555, the court declared an instruction for murder in the second degree erroneous because no definition was given of the words “in a heat of passion,” citing in support thereof the Andrew-case, which has been shown to be an authority to the contrary, and State v. Forsythe, 89 Mo. 667, and State v. Hickam, 95 Mo. l. c. 330, in each of which the charg*e was for an assault with intent to kill. These cases have no reference to an instruction for murder in the second degree or to the use of the phrase in controversy, and are therefore incorrectly cited in support of the ruling in the Strong case.
The ease of State v. Reed, 154 Mo. l. c. 129, is not relevant, because the instruction discussed and held to be erroneous was for justifiable homicide and not murder in the second degree.
In State v. Lane, 158 Mo. l. c. 584, the reason for the rule as stated in the Wieners case was recognized and a definition of the phrase was held not to be necessary.
State v. Skaggs, 159 Mo. 581, is not relevant, because the instruction condemned was for manslaughter in the fourth degree, the court holding that the phrase “heat of passion” should have been defined. This was a correct ruling; manslaughter is a crime recognized by the common law, and the phrase “a heat of passion,” being one of the elements of same, when employed in an instruction descriptive of the offense, is to be understood in its technical sense and its definition becomes necessary; but murder in the second de
State v. Pleake, 177 S. W. l. c. 357 (not to be officially reported), is not an authority here, because the instruction there complained of was for manslaughter in the fourth degree.
Prom all of which it will be seen that where the rule has been recognized and observed it has been held not necessary to define the phrase in instructions for murder in the second degree and that rulings to the contrary have been arbitrarily made without any reason assigned therefor, and they are consequently not authorities to sustain appellant’s contention. We therefore overrule it.
Appellant complains of the refusal of the trial court to give an instruction for manslaughter in the fourth degree. The giving of this instruction, under many precedents, is only authorized when it is shown that an assault has been committed or personal violence inflicted upon the defendant, either of which constitute what is termed “lawful provocation,” the presence of which will reduce murder to manslaughter. [State v. Ellis, 74 Mo. 207; State v. McKenzie, 177 Mo. l. c. 712; State v. Weakley, 178 Mo. l. c. 423; State v. Todd, 194 Mo. l. c. 396; State v. Darling, 199 Mo. l. c. 197; State v. Conley, 255 Mo. l. c. 198; State v. Snead, 259 Mo. l. c. 432.]
The facts contended by the appellant to be necessary to constitute lawful provocation and hence authorize the giving of the instruction, are as follows: the alleged seduction of Marie Cariou by the deceased; the placing in her hands by him of pernicious literature; her abduction by him under-promise of marriage ; his return without her; and his remarks to ap
There was no evidence authorizing the giving of instructions on accidental killing and justifiable homicide.
Appellant complains of the refusal of the' trial court to grant an instruction submitting to the jury the question of the appellant’s mental incapacity necessary to relieve her from liability for the commission of the^ crime. The giving of this instruction was unnecessary in view of the fact that the court had given an instruction at the request of the State properly presenting to the jury this entire question.
The record discloses that the appellant has been accorded every right to which she was entitled under the law. She was fortunate in being represented by able and industrious counsel, who have left nothing undone to present every possible defense that could properly be interposed in her behalf for the commission of this unprovoked murder. The jury would have been authorized under the evidence in finding her guilty of murder in the first degree.
The freedom from error of this record authorizes an affirmance of the judgment of the trial court, and it is so ordered.