115 Mo. 620 | Mo. | 1893
The defendant was indicted at the January term, 1891, of the St. Louis criminal court. He was tried and convicted at the January term, 1892, of murder in the second degree, and his punishment assessed at ten years in the penitentiary. He was charged with the murder of Henry Stockseick on Saturday night, January 31, 1891.
On this appeal, no ^question is raised as to the sufficiency of the indictment, the empanneling of the jury, or other preliminary proceeding.' The exceptions saved refer to the weight of the evidence, admission of evidence, and the instructions of the court.
To understand the rulings objected to, a substantial statement of the evidence is necessary.
One Schultz kept a grocery on the corner of Sixteenth and Mullanphy streets, to which was attached a saloon. The saloon could be entered from the grocery in front, or by a side door on Mullanphy street, or by a rear door leading into a back yard, from which a gate opened on Mullanphy street. On the evening of Saturday, January 31, 1892, three young sons of Schultz were on duty in the place attending customers of the grocery and saloon. In the latter apartment were several persons seated at a table playing cards, among whom was deceased, a quiet, inoffensive person who lived in the neighborhood, and who made his living by “doing odd jobs.” About nine orten o’clock in the evening Crawford came into the saloon. He was a stranger to everyone present. He was shortly followed by three other young men, — Holden, Graffney
At about eleven o’clock the grocery was closed and the lights turned out. The Schultz brothers were about to close up the saloon also. The side door on Mullanphy street was locked, as also the front door on Sixteenth street. The parties playing cards had stopped their game and were standing at the bar taking a parting drink. The beer keg on tap had been drained and a vessel of beer was set aside for a little party up in front. John Schultz was behind the bar, having drank his beer. Crawford came in from the yard through the rear door with a pitcher in. his hand. The young men who had formerly left the saloon with him accompanied him, but remained outside in the yard. Crawford advanced to the bar, set his pitcher upon the counter, and addressing John Schultz (behind the bar) said: “You- damned son of a bitch, give me a nickel’s worth of beer!” John replied that the beer was all out, at the same time turning the faucet of the keg to support his assertion. Crawford then said: “Give me a nickel’s worth of milk, then!” Schultz answered that he had no milk. Crawford next said: “Well, put p— in it!” or according to another account “G- damn you, I want something! P- in the pitcher!” to which Schultz replied that they didn’t do anything of that kind there. Then a voice from the
At this time Crawford’s friends in the rear made some- demonstrations and John Schultz ran to the door and turned the key. Crawford cried out, “Let me out; I want to go home;” and Rudolph. helped him to his feet, and it was noticed that, he had blood on his face as if his nose was bleeding. He then made a rush at one Wiese, standing there, saying, “You son of a bitch, I’ll fix you now;” and Wiese struck him and drove him back. After recovering from the blow, he said: “Johnnie, I didn’t think you would do a man that way;” to which Schultz replied “If you give me the money, I’ll give you the wine.” According to another account he said: “I didn’t think you sons of bitches would do me up in that shape;” and according to another still: “I didn’t think you would use me this way; I am willing to pay for it.”
The testimony on the part of the defense tended to show that Crawford left home early in the evening to go'to a ball; that in company with three other men (Holden, G-affney and Laberman) he spent the evening with a sick friend, one Reardon, a few blocks from Schultz’s saloon; that these parties were all “full” when they came to Reardon’s house; that they went out five or six times during the evening for a pitcher of beer; that about eleven Crawford went out alone with the pitcher, and after he had been gone fifteen or twenty minutes the others went out to see what had become of him.
Laberman testified: “We went up in the saloon there; we went to see what was going on up there; we thought maybe he got hurt or something; we went right to Schultz’s saloon. '* * * When we went after Crawford we went direct to Schultz’s. Holden says, ‘Come on, let’s see what’s the matter with him;’ we went right down to Schultz’s expecting if there was anything wrong, that is the place it would be. *■ * * As soon as I heard shots I went on home, went back to Reardon’s first, and then went on home. We knew Our friend Crawford was in there; we thought of it because of the fighting, because Holden seen him when he was going in there before; Holden said he was in there; Holden told me he went up there for the beer; Holden told me he was up there; that’s why he brought me up there to see what was the matter with Crawford; I went straight back to Reardon’s; I did not go back to see whether Crawford was injured in the scuffle; saw Crawford down on Seventh street, between O’Eallon and Cass avenue, about half past eleven or a quarter to twelve; we saw him sitting
Mother of defendant testified that when he came home, though she does not state what time it was, she saw he was cut in the back and stomach;.she sent for her family physician, who came and examined the wound; but he did nothing, gave no advice and went away. A police officer stated that he took him out of bed, and put him in an ambulance; he was unconeious at the time; did not recover consciousness for two days.
Dr. Dalton, superintendent of the city hospital, a witness for the defense, stated that he toas conscious when admitted; was never unconscious at any time while in the hospital, and a couple of days afterward was able to give testimony before the coroner.
Crawford, when delivered at the hospital early on the morning of February 1, had a scalp wound on the top of his head and a lacerated wound of his lip; he also had a stab wound of the back on the right side, and a serious penetrating stab wound of the abdomen; but there was not a syllable of evidence as to how he received these stab wounds, or who inflicted them; nor was there any testimony as to where he went, or where he was, from the time he left Schultz’s till he was met again close by his house; Crawford himself did not testify, nor did Holden and Graffney.
The motion for new trial alleges three grounds only: First, that the verdict is against the evidence; second, that the court admitted improper evidence over the objections of the defendant,, and third, that the court gave improper instructions to the jury.
The jixry were instructed on murder in the second degree, manslaughter in the fourth and self-defense.
I. Two of the witnesses for the state, Haverkamp and Steinberger, were permitted, over the objections of
We think the court correctly admitted the evidence. This was a prosecution for murder. It was incumbent on the state to show premeditation and malace. What more pertinent proof could have been produced to show both, than this significant threat made by this defendant, who did return on this same night, and according to the evidence in this record, sought by valgarity and profanity to insult John Schultz, and followed it up by an unprovoked assault; had he killed John Schultz there could not have been the slightest ground for the objection. State v. Forsythe, 89 Mo. 667; State v. Mahly, 68 Mo. 315.
Nor can it can it be doubted, we think, that it was permissible to show the animus and motive which prompted defendant to return to that saloon that night. State v. Partlow, 90 Mo. loc. cit. p. 629.
The evidence tended to show that defendant was actuated by spite and malice towards John Schultz; that he was purposely seeking a difficulty with him. The evidence also shows that when the pistol was aimed at Stockseiek, Rudolph Schultz was also in an almost direct line with Stockseiek. It was perfectly competent for the jury to find that defendant was really trying to kill Rudolph, with whom he had been
II. It is earnestly urged that the evidence does not sustain the verdict. We think it does. There can be no murder in either degree without malice express or implied, but when the evidence shows that the defendant purposely and intentionally shot Stoekseick in a vital part with a deadly weapon, without any provocation, the requisite malice is presumed, and he is guilty of murder in the second degree. State v. Edwards, 71 Mo. 312; State v. Gassert, 65 Mo. 354.
III. Defendant complains of the instruction given on self-defense. He complains that the instruction was erroneous in confining defendant’s right to shoot and kill Stoekseick, to a defense of his person from the assault of Schultz.
We do not think there was sufficient evidence to justify an instruction for self-defense. It is absolutely certain that Stoekseick had not moved or taken any part whatever in the disturbance that defendant had provoked and carried on in that saloon. In our opinion there is not a word of testimony which could justify the defendant in believing that Stoekseick was about to do him great bodily harm, but the learned trial judge, it would seem, out of a spirit of leniency to defendant gave him the benefit of the principle, by instructing the jury that “that if defendant shot at Schultz and killed Stoekseick, and when he did so, defendant had reasonable cause to apprehend a design on the part of Schultz brothers and others to immediately take his life or to inflict upon him some great personal injury and that, to prevent such apprehended injury he shot at Schultz, missed him and unintentionally shot Stoekseick, and at the time he shot he had reasonable
There was evidence that Rudolph Schultz was in a line with the shot fired at Stockseick and it was only by the most liberal intendment, and that, from the sole fact that the defendant and Schultz had had a difficulty, that he might apprehend a renewal of hostilities, that any justification can be found for an instruction for self-defense in this case. But if it was allowable the court gave the defendant the benefit of the only reasonable state of facts upon which it could be predicated. As a matter of fact, all the witnesses testify that no one was molesting defendant. He was armed with a revolver. No one was pursuing him.
IY. The instruction for manslaughter in the fourth degree is also complained of. This, like the instruction' for self-defense, was based upon the evidence that as Rudolph was in line with Stockseick, perchance he shot ■at Rudolph and not Stockseick, and if, in a heat of passion produced by blows by the Schultz brothers or either of them, he shot at Schultz, missed him and unintentionally killed Stockseick, he was guilty of manslaughter. We think the evidence did not justify the instruction. The evidence is clear that he deliberately shot at Stockseick, but it was calculated to permit the jury to extend mercy to the defendant. It could not possibly injure him.
His contention that the court should have instructed that if in a heat of passion provoked by the blows of Schultz or Weise, he mistook Stockseick for either of them and fired directly at him, he was guilty of manslaughter, has not a word of evidence to sustain it. There was not a word of evidence tending to show he made any mistake of the kind.
The verdict in this case was fully justified by the evidence. The instructions were exceedingly liberal to defendant. He has no cause for complaint. The judgment is affirmed.