221 Mo. 530 | Mo. | 1909
The deféndant was prosecuted under an indictment charging him with murder in the first degree, for the killing of one John Cook, with a heavy stick or club, on the evening of January 9, 1907, in the city of St. Louis, and was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of ten years. Having filed motions for new trial and in arrest of judgment, which were overruled by the courts defendant appealed.
Deceased, John Cook, who was nicknamed “Black-ie,” and the defendant were seen together, drinking, at Morische’s saloon, called the Bellevue, located at 5000 Easton avenue, in the city of St. Louis, on the afternoon of January 9, 1907, both being under the influence of liquor. Cook had been employed doing odd jobs or chores in and about the saloon, and had a “bunk” or sleeping place in a shed back of the saloon. He was about fifty years of age, his hair being slightly gray, and he weighed over 170 pounds. The defendant was past twenty-one years of age at the time of the homicide, and for some eight or nine months had been a constant frequenter of this and other saloons. On the evening in question, while the two men were drinking at a table in the saloon, the bartender heard the defendant say to deceased, “Blackie, I ought to knock your head off; you .are an old man, and I wouldn’t hurt you;” but on cross-examination, the witness explained that he did not attach any importance to the remark, as he had often heard the defendant make remarks of that character in jest, and that the defendant, after saying that, called the deceased to the bar of the saloon and they had a drink together, the defendant paying for the same. The defendant, at the time, was noticed wearing a white sweater ujsder a black coat, and had on a derby hat. About 5:15> o’clock, on said afternoon, both men were observed' leaving the saloon, and the evidence is that they pro
The only direct testimony as to. the killing, aside from that of defendant himself, was that given by Ida Bunting, a little girl, between nine and ten years of age who lived at 5025 Ridge avenue. She testified that as she was returning from an errand to a butcher shop at Easton and Academy avenues, about 5:30 o’clock on said1 evening, and while crossing a vacant lot on which was the stone yard, at the rear of Francesconi’s saloon, she saw a young man throwing stones at an old man who was lying in the mud in the alley; that thereafter the young man took off his coat and picked up a club with which he beat the old man on the head; that she observed that the young man wore something white, and that she told her mother as soon as she got home about what she saw.
William L. Morische, son of the saloon-keeper of that name, testified for the defendant that on the morning of the day before the killing a controversy arose in the saloon between the defendant and the deceased about drinks; that defendant accused “Blackie” of being a thief, and that “Blackie” challenged him to prove it, whereupon the two men, with Morische, went to the shed where “Blackie” slept, and there they discovered a bottle of whiskey which the defendant charged “Blackie” with stealing; that “Blackie” became very angry, and said to defendant, “I will get even with you for this — I will get you some night alone. ’ ’
Matthew Peacock, bartender in Morische’s saloon, testified that the defendant came into that saloon about seven o’clock on the evening of the killing, and drank there; but this testimony, as to the time he was in said saloon, is totally at variance with the testimony of the defendant and many other witnesses.
There was testimony that the defendant was a member of a church society, and bore a good reputation for peace and quiet, but none of the witnesses so testifying had any knowledge of defendant’s dissipated habits, as shown by his own testimony and that of other witnesses.
The record discloses that Ida Bunting, who testified as a witness for the State at the trial of this cause, was also a witness before the grand jury which preferred the indictment. A portion of her testimony upon her cross-examination by defendant’s counsel, was as follows:
“Q. You said a while ago you went home and told your mother about it? A. Yes, sir. Q. And
Further on, during the cross-examination of the witness, the following occurred:
“Q. You say you didn’t tell the grand jury you saw these men fighting?
“Counsel for the State objects to this testimony; objection sustained; defendant’s counsel duly excepts.
“ Q. You remember you were up before the grand jury, you said? A. Yes, sir.
“Mr. Harvey: I want to ask her if. she didn’t tell the grand jury a certain thing.
“Mr. Newton: I don’t think it is proper to go into the question of her testimony before the grand jury here.
“The Court: The objection will be sustained for the present.
“Defendant’s counsel at the time duly excepts to the ruling of the court.”
Defendant contends that the witness did not answer the question as to whether she didn’t tell the grand jury that she saw the two men fighting in the alley, but that she evaded it, and that the court erred in not requiring her to answer the question directly.
If the witness, in answering the question particularly alluded to, had-stopped after saying “No,” this would have been a complete answer to the question, but after saying “No,” she inadvertently added, “I never saw them fighting.” It is plain that what the witness intended to say was that she did not, before the grand jury, nor elsewhere, state that she saw the men fighting. That this was also the view of counsel for defendant is implied from the question asked by him of the witness, in these words, “ You say you did not tell the grand jury you saw these1 men fighting?” Following this, the question was asked, “You remember you were up there before the grand1 jury, you said? A. Yes, sir.” Counsel for defendant then said to the court, “I want to ask her if she didn’t tell the grand jury a cértain thing.” To this objection was made, and sustained. What counsel intended to ask the witness was not stated by him, and the court properly sustained the objection. To hold that the answers of the witness to the questions propounded to her were not sufficiently direct to constitute a foundation for her impeachment, had it been desired to introduce testimony for that purpose, would, we think, be unwarrantable. For a child of her years, this witness was very intelligent,
The second instruction given by the court reads as follows:
“The court instructs the jury that he who willfully, that is, intentionally, uses upon another at some vital part, a deadly weapon, as a heavy wooden club, must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death, and, knowing this must be presumed to intend death, which is the probable and ordinary consequence of such an act, and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from a bad heart. If, therefore, the jury believe from the evidence that the defendant took the life of John Cook by striking him in a vital part with a heavy piece of wood or club, with a manifest design to use such weapon upon him, and with sufficient time to deliberate and fully form the conscious purpose to kill, and without sufficient cause, or reason, or provocation, then such killing is murder in the first degree.”
It is objected by defendant that this instruction is erroneous and prejudicial, in that it assumes that “a heavy piece of wood or club” is a deadly weapon, and that if the defendant struck and killed the deceased with a heavy piece of wood, or club, he will be presumed to have intended death.
“A deadly weapon is one likely to produce death or great bodily injury, and the manner in which it was used in the particular instance may enter into the question whether or not it was deadly. Commonly the question of what is a deadly weapon is deemed to be of law for the court, not of fact for the jury. Yet it may so far involve a fact as to be in effect for the jury; for example, where it is deadly or not according to the manner of its use.” [2 Bishop’s New Crim. Law, sec. 680.]
The evidence showed very conclusively that the deceased was killed by the defendant with the identical club described in the indictment. No one of ordinary intelligence would hesitate for a moment in concluding that the club in question, in the manner in which it was used upon the deceased, was a dangerous and deadly weapon. As was said in Hamilton v. People, 113 Ill. l. c. 38, “such things as all persons of ordinary intelligence are presumed to know are not required to be proven.” [State v. Drumm, 156 Mo. 216; State v. Shields, 110 N. C. 497; State v. West, 6 Jones’ Law (N. C.), 505; State v. Rigg, 10 Nev. l. c. 290 ; State v. Phillips, 104 N. C. 786.] The court did not err in assuming that the club in question was a dangerous and deadly weapon. Moreover, we are of the opinion that the club as described in
The following portion of the court’s instruction upon self-defense is claimed to be erroneous, the features particularly objected to being in italics:
“The law of self-defense is emphatically the law of necessity, and does not imply the right of attack; nor will it avail in any case where the difficulty is sought for or induced by the party’s own willful act, or where he voluntarily and of his own free mil enters into it with the intention of killing or of doing some great bodily harm to the person so entered into controversy with, no matter how imminent the peril may become during the progress of the affray; nor will any mere words or epithets, though vile and insulting, or any threats or insults made at sometime prior thereto, justify making of an assault; and you are further instructed that no one is justified in using any more force than is necessary to get rid of an assailant or to repel an assault made upon him; nor in the use of a deadly weapon to repel an assault, unless at the time there be good cause to apprehend death or great bodily injury from such assault.
“If, therefore, you do believe and' find from all the evidence in the cáse either that the defendant voluntarily entered into the difficulty which finally resulted in the' striking and killing of said John Cook, or that he voluntarily and of his own free will became engaged in such difficulty with the intention of killing or of doing some great bodily harm to said Cook; or that after the said. Cook had been thrown to the ground and the defendant was no longer in danger of an assault or of great bodily harm at the hands of said Cook, the defendant persisted in striking, wounding and killing said Cook, then and in that ease you are not authorized to acquit the defendant on the ground of self-defense; and this is true no matter how violent the defendant’s passions became or how hard*543 soever he may have been pressed during the progress of the affray between himself and the deceased; or how imminent his peril might have become during the affray so brought about.”
The only fault of this instruction is in its punctuation, which is not absolutely correct. In some places in the last paragraph semicolons are used instead of commas, and in one or two other places the sentence might be improved by the insertion of a comma. The meaning, however, is clear enough and it is not intimated that the jury misunderstood it.
The phrase, in the first sentence, “Nor will it avail in any case where the difficulty is sought for or induced by the party’s own willful act ” and the phrase, “Or, where he voluntarily and of his own free will-enters into it,” are both qualified by the phrase, “toith the intention of killing or of doing some great bodily harm to the person so entered into controversy toith.” [State v. Bailey, 190 Mo. l. c. 286.] In the last paragraph of the portion of the instruction quoted it will be seen that the phrase, “Either that the defendant voluntarily entered into the difficulty which finally resulted in the striking and killing of said John Cook,” and the phrase, “Or that he voluntarily and of his own free will became engaged in such difficulty,” are both qualified by the phrase, “with the intention of killing or of doing some great bodily harm to said John Cook.” [State v. Bailey, supra.]
This instruction is the law of this State, and has been since the decision known as the Partlow ease. [State v. Partlow, 90 Mo. l. c. 608; State v. Gordon, 191 Mo. l. c. 124; State v. Feeley, 194 Mo. l. c 322; State v. Vaughan, 141 Mo. l. c. 521; State v. Lewis, 118 Mo. l. c. 84; State v. Bailey, supra, and many other cases.]
The defendant insists that the instruction is fatally wrong in telling the jury that “such defense will not avail in any case where the difficulty is sought for
A further contention is that there was no evidence tending to show that the defendant sought the difficulty, or brought it on, and that there was, therefore, no basis for the limitation of the defendant’s right of self-defense imposed by the instruction.
The testimony of Ida Bunting is that when' she first saw the defendant he was throwing rocks at the deceased, 'who was then lying flat on the ground; that she then saw the defendant take off his coat, procure a club, and begin beating the deceased on the head. The blood and wounds on the deceased, and the blood on the club which the defendant used, as well as the defendant’s almost total freedom from physical injury, all strongly indicate that the deceased was not the aggressor, and that if there was a struggle at all, it was very onesided. The testimony shows that the defendant, about one hour before he killed the- deceased said, “Blackie, I ought to knock your head off;