209 Mo. 331 | Mo. | 1908
On February 5, 1906, the grand jury of the city of St. Louis returned an indictment against the defendant charging him with murder in the first-degree. At the January term, 1907, the defendant was tried and convicted of murder in the second degree and his punishment assessed at ten years’ imprisonment in the penitentiary. His motions for new trial and in arrest of judgment were heard and overruled, and the defendant appeals.
The State’s evidence tended to prove that the defendant was a butcher by occupation and lived in the city of St. Louis. The deceased, Charles Schaefer, and his wife occupied rooms in the second story of an apartment house in said city. The mother of the defendant had done some sewing for the wife of the deceased,
On the part of the defendant the evidence discloses that he was twenty-four years old and lived with his mother and brother; that he was engaged in business at 1430 Bremen avenue in St. Louis; that he went from his place of business with his mother and brother on the evening of the homicide, to the residence of the deceased; that he carried a revolver with him because he had the receipts of his day’s business, amounting to between sixty-five and seventy-five dollars, with him at the time; that defendant, his mother and brother went into the room occupied by the deceased and his wife at the invitation of the deceased and presented the bill for the sewing; that an argument arose and the. defendant and his mother were ordered out of the place; that the deceased pushed both of them out, took hold of defendant’s mother, called her names and tried
The evidence on the part of the State in rebuttal tended to prove that there were no wounds or bruises on the defendant’s head and neck at the time that he came into the saloon after the shooting, nor the next morning at the police station. There was also evidence that the deceased did not have a knife at the time of the difficulty in the room as testified to by the defendant’s witnesses.
The grounds upon which a reversal is sought will be considered in the order of defendant’s brief in this court.
I. It is urged that the defendant’s plea in abatement was erroneously overruled. This plea in substance was to the effect- that prior to the preparing of the indictment herein by the grand jury, an information had been filed in the St. Louis Court of Criminal Correction by the assistant prosecuting attorney of said court charging the defendant herein with murder in the first degree, and that said court had authority by law to make a preliminary examination of all charges of felony, whether capital or otherwise, committed in the city of St. Louis, and that before said charge was heard and disposed of before the defendant had had his preliminary examination, the circuit attorney of St. Louis had caused the said charge to be heard before the grand jury and the indictment herein had been preferred and the preliminary proceedings in the St. Louis Court of Criminal Correction dismissed, in consequence of which the defendant had been denied a preliminary examination in said St. Louis Court of Criminal Correction. This insistence is predicated upon the act of the Legislature of this State passed- and approved in 1905 (Laws 1905', p. 132, to be known as Sec. 2476a, R. S. 1899'), which provides: “No prosecuting or circuit attorney in this State shall file any information charging any person or persons with any capital offense until such person or persons shall first have been accorded the right to a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed.” Counsel
Counsel cite us, however, to section 2476, Revised Statutes 1899, which provides: “But that mode of procedure which shall be first instituted by the filing of the indictment or information for any offense shall be pursued to the exclusion of the other, so long as the same shall be pending and undetermined; and the court in which the prosecution shall be first commenced by the filing therein of the indictment or information, and the issuing of a warrant thereon, shall retain jurisdiction and control of the cause to the exclusion of any other court so long as the same shall be pending and
II. The record discloses that the defendant was duly arraigned and entered his plea of not guilty to the indictment at the January term, 1906, and that afterwards at the December term, 1906', he filed a plea in abatement and a motion to quash the indictment, which has just been considered and which the court adjudged insufficient, thereupon, the cause proceeded to trial. It is now urged that the sentence of the circuit court must be reversed because there was no new arraignment of the defendant after his plea in abatement and his motion to quash had been overruled. This objection is made for the first time in this court; it was not made a ground for a new trial or in arrest of judgment in the circuit court. The, learned counsel for the defendant have cited us to no authority in support of their contention. The record does not state that the defendant withdrew his plea of not guilty by consent of the court when he filed his motion to quash and his plea in abatement, nor was it in fact withdrawn. And this court, in State v. Reeves, 97 Mo. 668, specifically held that a motion to quash the indictment, though filed with the consent of the court and after a plea of not guilty entered, but not withdrawn, did' not have the
III. The third assignment of error is that the mo-’ tion to quash ought to have been sustained because no preliminary examination had been allowed the defendant before the indictment was preferred and that without such examination the circuit court had no jurisdiction. We have already disposed of this contention in answer to the first assignment of error.
IV. The instruction of the court, in the following, words, is assailed as erroneous: “The jury are further instructed that no words of abuse or vile names, however calculated to excite indignation or anger, are sufficient to reduce the crime of killing to a lower degree than murder, and the use by the deceased of such words, or the calling of such names by him (if you find from the evidence that he did use such words or call such names), would not constitute just cause or provocation on the part of the defendant to use a deadly weapon upon the deceased. The provocation which would reduce the crime of killing to a lower degree than murder must consist of personal violence to the defendant, or the danger of such personal violence must.
The criticism of this instruction is that “grievous and degrading words of reproach will amount to just provocation as contradistinguished from lawful and reasonable provocation.” Counsel say, “We understand the law to be that it is not only personal violence that entitles a defendant to claim that he has just cause or provocation, which would reduce the crime of killing to a lower degree than murder,” and cite us to State v. Grugin, 147 Mo. 39. We think that the court was unfortunate in the use of the word “just” in the first paragraph of the instruction, “just cause” instead of “reasonable or lawful,” but when the whole instruction is read together, it is obvious that it was intended to say, and did direct the jury properly, that no words
V. In the course of its instruction on self-defense, after a very full and favorable instruction for the defendant on the law of self-defense, the court added these words: “Words and epithets, however vile and grievous, will not justify an assault, and if you believe from the evidence that the defendant sought or brought on a difficulty with the said Charles Schaefer with the intent to kill him or do him some great bodily harm, then the defendant cannot justify the killing of said Schaefer on the plea of self-defense.” And this is assigned as error.
Counsel cite us to the decisions of this court in State v. Patterson, 159 Mo. l. c. 560; State v. Goddard, 146 Mo. 177; State v. Hopper, 142 Mo. 478; State v. Partlow, 90 Mo. 608, but the reading of each one of those cases will show that the trial court in its instruction omitted the words found in the instruction herein: “with the intent to kill him or do him some great bodily harm,” and therein lies the difference between those instructions and the one at bar.
This character of instruction came under review in the case of State v. Bailey, 190 Mo, l. c. 286, 287, wherein it was said that this expression “with intention of killing or inflicting upon him some great bodily injury” modified the phrases, “voluntarily brought on the difficulty, and voluntarily entering into the difficulty,” and when thus read and understood, it in no manner conflicts with the rule announced in State v. Partlow, 90 Mo. 608, or State v. Herrell, 97 Mo. 105, but simply announces the sound and wholesome law that if one brings on a difficulty with the purpose of wrealdng his malice by slaying his adversary or doing him some great bodily harm and actuated by such a felonious purpose does the homicidal act, then there is no self-defense in the case. See, also, State v. Sharp,
That there was ample evidence tending to prove that the defendant armed himself with the deadly weapon and went back to the residence of the deceased and sought the difficulty with him with intent to kill or do him some great bodily harm, we think is not a debatable question.
VI. Finally, it is insisted that the court committed error in defining the expression “heat of passion,” but this is a misapprehension of the instructions. In the fourth instruction the court told the jury that manslaughter in the fourth degree was the intentional killing of a human being without malice and in- the heat of passion, and then instructed the jury that if the defendant intentionally shot and wounded the deceased, Schaefer, with a pistol charged with gunpowder and a leaden bullet and that at the time of such shooting and wounding of the deceased, the defendant was so far under the influence of a passion suddenly aroused by being struck or assaulted by the deceased, before the defendant shot the deceased, as to render the defendant incapable of thinking coolly of the natural consequences of hi s act, they should convict him of manslaughter in the fourth degree. And the jury were instructed that it was a passion resulting from the provocation, and not the provocation itself, which reduced the grade of the offense from murder to manslaughter. This was all that was necessary for the court to do, and fully answers the objection of the counsel to this instruction. In our opinion, the defendant had a fair and impartial trial and there is no reversible error in the record.
The judgment is accordingly affirmed.