State v. Diller

170 Mo. 1 | Mo. | 1902

BURGESS, J.

At the April term, 1901, of the circuit court of the city of St. Louis, the defendant was convicted of murder in the second degree, and his punishment fixed at ten years’ imprisonment in the penitentiary for having theretofore, at said city, shot and killed with a pistol one Edward Toomey.

Defendant appeals.

It appears from the record that on January 9,1898,. while in the saloon of one Smith in the city of St. Louis, Tony Furst and one Cunningham, made a wager as to. which could throw the other down, and placed the wager in the hands of defendant Diller, as stakeholder, who. decided the bet in favor of Furst, and turned the money over to him. Cunningham was dissatisfied with the result and demanded his money back.

On the following day, Cunningham and Edward Toomey the deceased went to the place where Tony. Furst worked and demanded the money, and said if it, was not returned it would be taken out of Diller’s hide.. The following Sunday afternoon Toomey and Cunningham met Diller on the street; Diller’s half-brother, C. G-.. Schaefer, was with him at the time. Diller and Schae-fer were pursued by Toomey and Cunningham, until Diller and Schaefer ran into a saloon kept by a man named Asman and concealed themselves behind the icebox, having locked the door of the saloon to prevent Toomey and Cunningham from following them in. Toomey then threatened Diller and told him the next: time he met him he would “blow his damn head off.”

• On the following Monday morning, Toomey went to the saloon of Mr. Yeste, at Sixteenth and Franklin avenue, where Diller had formerly worked as a bartender, and where he usually stopped when in the city.. Toomey asked Veste where Diller could he found, and he was told that he usually visited that saloon every day. Again, at noon, Toomey returned and asked for Diller, and inquired of Veste as to when was the best time to find Diller. Veste told Toomey that Diller was in the habit of visiting the saloon'every morning and reading the newspaper, especially the advertisements, in order-to try and find work. Toomey departed, and his manner at the time made such an impression upon Veste that he warned Diller and told him to look out for trouble. Toomey had never visited this saloon except at the time described, so far as Veste knew.

Tuesday morning about nine o ’clock Diller was in Veste’s saloon, reading a newspaper. At that time there were present William Eussell, Robert Reel, a man named Dowd, G-ottlieb Bassler and Veste. After Diller had been there twenty or thirty minutes, Toomey entered the saloon, approached the bar, and seeing Diller, approached him, with his right hand in his trousers pocket. Diller half arose from his chair, drew his pistol, and made a stroke at Toomey with his left hand, in which the pistol was held, intending, as he said, to strike Toomey, and thus protect himself from assault by Toomey, but the pistol went off accidentally, as Diller claims, and Toomey was shot and killed. Toomey died shortly after receiving the wound, never having regained consciousness. Diller went to Illinois and worked on a farm until arrested and brought back for trial at the April term, 1901.

The point is made that the court erred in not allowing the defendant to bring out in evidence before the jury the full details of the quarrel between Cunningham and Diller over the wrestling wager and the fact that Toomey was a friend of Cunningham’s and took up the quarrel. The record, however, discloses that all of the material facts, even to their detail with respect to said quarrel between Cunningham and Diller over the wrestling wager, were disclosed, as well also as the fact that Toomey was the friend of Cunningham, and that defendant has no ground to complain on that score.

It is claimed that the court erred in allowing counsel for the State to ask witness Robert Reel whether he had not testified thus and so at the coroner’s inquest, and then, in rebuttal, in permitting him to introduce in evidence an unidentified paper as being the record of the coroner’s inquest. The record, however, sufficiently shows that the record from which counsel for the State read was the “coroner’s transcript,” and that it was so recognized by both court and counsel. Indeed, counsel for defendant stated to the court during the examination of this witness, that he, counsel for the State, “is reading from the coroner’s transcript. ’ ’ Moreover, the witness himself testified that the signature to the evidence from which he read was his. Certainly nothing more could have been desired in the way of the identification of the record as being that of the coroner’s inquest.

It .is contended that the court erred in not instructing the jury upon manslaughter, but this position is untenable, for the reason there was no lawful provocation for the assault, which was necessary in order to reduce the killing from murder to manslaughter. It was either a case of murder in the second degree or of self-defense, and it was upon this theory the case was correctly tried.

The instructions are in accordance with the uniform rulings of this court, and free from objection.

The conviction was well warranted by the evidence, and, in our opinion the judgment should be affirmed. It is so ordered.

All concur.