199 Mo. 127 | Mo. | 1906
Under an information duly filed by the circuit attorney of the city of St. Louis, in the circuit court of said city, charging the defendant with murder in the second degree for shooting to death with a pistol one Julia Lamm at said city on the 2nd day of October, 1904, the defendant was found guilty of the offense charged and his punishment fixed at imprisonment in the penitentiary for ten years. He appeals.
The facts as stated by the State are substantially as follows:
Defendant, Charles Praga, at the time of the homicide, was living in a rented room in the rear of the basement of a rooming house at 3216 Locust street in said city of St. Louis. This house was then being conducted by Mrs. Maggie S. Hardin as a rooming house. The defendant had moved to this room on the 4th of August next preceding and had been living there about two months. When he rented the room he told Mrs. Hardin that he had a wife, and on Monday next before the homicide, he asked her if his wife could come there to live with him. Mrs. Hardin gave her consent and on Wednesday of the same week Julia Lamm, the deceased, whom the defendant represented to be his wife, moved her property into the defendant’s room and came there to live. The deceased was not defendant’s wife, but was a woman whom he had known for two years and who had frequently visited the defendant at his room before she came there to live. About half
The defendant was taken to the hospital, and found to be suffering from three pistol shot wounds on the breast near the left nipple, the wounds being not over an inch apart. In each of two of the wounds the bullet had struck a rib and was deflected around the body and lodged in the back. The bullet making the other wound broke away a part of the rib and pierced the lung. The first two wounds described were not serious, and though the defendant, when taken to the hos
The defendant was a witness in his own behalf and testified that the woman, Julia Lamm, who had been out during the day, came to his room that night shortly before the homicide in an intoxicated condition; that a quarrel arose because of her conduct, and because of a letter the defendant had found in her absence, addressed to her in the name of Julia Miller; that the deceased got the revolver from the dresser and shot the defendant three times, and he fell to the floor and became unconscious; that he soon regained consciousness, and was suffering greatly from his wounds, and wanted a drink of water; that he saw the deceased in front of the dresser as though reloading a revolver; that he went to the washstand to get a drink, and saw the revolver in the deceased’s hands, reached for it and got hold of her arm; that a struggle then followed over the possession of the revolver in which 'one shot was accidentally fired; that the defendant then got the revolver away from the deceased, and in his own language,
As a witness in his own behalf the defendant was asked the following questions by his counsel, and gave the following answers:
“Q. Now, had you madé any motion to hurt her in any way before she fired that shot? A. No, I did not have any time to.
“Q. When you got the gun away from her, and did shoot her, why did you shoot her, for what purpose? A. Because I knowed if she got hold of that gun she would kill me — shoot me again.
“Q. Because you thought she was going to kill you? A. Yes, sir.”
The court instructed on murder in the second degree, manslaughter in the fourth degree, presumption of innocence and reasonable doubt, but did not instruct on self-defense. Defendant excepted to all of the instructions and to the failure of the court to instruct the jury on all the law governing the case.
Among the grounds assigned in the motion for a new trial and the only ones insisted upon in this court for a reversal of the judgment are the 6th and 7th, which are as follóws:
‘ ‘ 6th. The court erred in not properly instructing the jury on the law governing the evidence in the case.
“7th. The court failed to instruct the jury on the law governing self-defense.”
As it is not suggested in the 6th ground, however, in what particular the court erred in not properly in
If it is true, as defendant testified, that a quarrel took place between himself and deceased; that the deceased got the revolver from the dresser and shot him three times, and he fell on the floor and became unconscious ; that he soon regained consciousness, saw deceased in front of the dresser as though reloading the revolver, saw it in her hands, reached for1 it and got hold of her arm; that a struggle then followed over its possession, in which one shot was fired; that he then got the revolver away from the. deceased and without thinking any more just passed it from Ms left hand to ■his right and pointed at her and fired two shots, and saw her fall towards the bed, it is inconceivable how defendant could have shot the deceased in self-defense, or, in other words, how he could have been afraid she
The evidence, in our opinion, conclusively shows that defendant did not shoot the deceased in self-defense. Moreover, the matters testified to by defendant as a justification for shooting and killing the deceased are clearly inconsistent with the physical facts. There can be no question under the evidence but that the first three shots were fired by the same person, for they were fired in rapid succession and out of the same pistol, for there was no evidence that there was any other pistol used. The evidence shows that there were six shots fired and that three of them took effect upon the deceased and three upon the defendant. There were but five chambers in the pistol, and it must of course have been reloaded after the first shot was fired. According to the defendant’s testimony, after he regained consciousness and before the last three shots were fired he saw the deceased in front of the dresser as if reloading the pistol. Under the facts and circumstances the pistol could not have been reloaded by the deceased.
Our conclusion is that the judgment should be affirmed. It is so ordered.