102 Mo. 142 | Mo. | 1890
— The defendant was convicted of murder in the second degree, and sentenced to twenty years’ imprisonment, on an indictment for murder in the first degree, for killing John Kelly.
Instructions were given upon murder in the first and second degrees,- and upon self-defense. The errors assigned are, a failure of the court to instruct upon manslaughter, and the introduction and exclusion of evidence.
Kelly, the deceased, and one Horner, went into the defendant’s saloon on the night of the twenty-ninth of October, 1887. Defendant and Kuehne and several other persons were in the saloon at the time; the last-named persons were throwing dice for the drinks. Kuehne, ' having lost, invited the persons present, including Kelly, to drink, and they accepted the invitation. Defendant then proposed to Kuehne to “shake for the house,” to which the latter agreed. This time the defendant lost, and Kelly and others drank again at his request. Defendant said to Kelly, “You are drunk,” to which the latter replied, “I don’t have to look far for a partner.” Other remarks of a like character were made by and between them, when the defendant and Kuehne engaged for another game of dice. They asked Kelly to act as referee, but he declined, saying he knew nothing about the game. Defendant lost again, and made the remark that he “guessed he would have to treat.” At the same time he fixed his eyes upon Kelly and said : “I believe you sons of bitches came in here for trouble.” He immediately ordered Kelly out of the house. Kelly walked to the door and went out. The defendant then stepped behind the counter, got a pistol, pulled off his coat, and followed Kelly and shot him while both parties were on the sidewalk. The foregoing is in substance the evidence of a number of eyewitnesses introduced by the state.
One other witness, introduced by the defendant, who was passing at the time, says he saw defendant step from one door to another on the outside ; that he heard defendant say “stop;” that Kelly was then approaching defendant, and defendant shot. The witness says he saw no other persons around, and did not notice that Kelly held his hand in a threatening attitude.
There had been some previous difficulty between defendant and Kelly and Kelly’s associates, and there is evidence tending to show that defendant had ordered Kelly to keep away from the saloon. The witness, McKenna, says he heard Kelly say, “I am going to do the big son of a bitch up,” and that a few days before this shooting he informed defendant of what Kelly had said. A Mr. Goodstein testified that, some four months before the shooting, he saw three or four parties come
1, The first question is, whether this is a proper case for instructions upon manslaughter. It is not contended that the case falls within any of those cases of manslaughter which are described and defined by the statute ; but the claim is, that instructions should have been given under section 1250, Revised Statutes, 1879. That section provides: “that every other killing of a human being by the .act * * * of another which would be manslaughter at common law, and which is not excusable or justifiable, or is not declared to be manslaughter in some other degree, shall be manslaughter in the fourth degree.” We are then to inquire whether there is evidence in this case tending to reduce the offense to manslaughter at common law. The evidence on both sides shows beyond all doubt that the killing was intentional. Bishop says where the killing is intended, and is not lawful, it is generally murder; but under circumstances of provocation, or of mutual combat, it may be reduced to manslaughter. 2 Bish. Crim. Law [6 Ed.] sec. 695.
Now the evidence for the state shows that defendant followed deceased up and shot him without any provocation whatever. The defendant, it is true, testified to certain threatening and abusive language used by the deceased. But the law is well settled that provoking or insulting words, or mere verbal threats, will not reduce the killing to manslaughter. Standing alone they constitute no such provocation as will reduce the crime below murder. It is very true that words may give character to acts, and are admitted in evidence to explain connected acts; so that if there is a present demonstration of violence, insufficient in itself to justify the killing or reduce it to manslaughter, the added words may have that effect. 2 Bish. Crim. Law [6 Ed.]
2. During the night of the homicide, the officer who arrested defendant took him to the hospital to which deceased had been removed. This officer testified : “I took Howard up to the side of the table where Kelly was lying. I asked him if he knew this man (pointing to Howard). He said : ‘I ought; he put a bullet in my belly.’ Howard did not say a word; he was under arrest at this time.” This evidence was admitted, we presume, on the principle that, statements made in the presence and hearing of a party, and not denied, are implied admissions; but the rule has no application when the person is under arrest at the time the statements are made in his presence. State v. Young, 99 Mo. 674; State v. Mullins, 101 Mo. 514. This error, however, should not operate as a reversal, for the evidence only tended to identify the defendant as the person who shot Kelly, a fact disclosed by the evidence on both sides and not disputed by anyone. The evidence could not have prejudiced the defendant. State v. Hamilton, 55 Mo. 520 ; State v. Owens, 78 Mo. 367.
3. The witness McKenna having testified that he had seen deceased at the defendant’s saloon on several occasions, and that he heard deceased make the threats against defendant, before narrated, was asked, on cross-examination by the prosecuting attorney, if he had ever
A conviction may be put in evidence for the purpose of discrediting a witness, but the mere fact that he has been arrested is inadmissible for any- such purpose. The evidence should have been excluded. Such a cross-examination is simply badgering the witness, and can have no other effect but that of bringing the administration of the law into disrepute, and produce reversals where cases have been otherwise w7ell tried. As this evidence, showing that defendant had been arrested for minor offenses, shows, also, that he was never convicted, we do not see how it could have prejudiced the defendant. The error was a harmless one in this case.
The evidence of this witness only goes to show threats made by the deceased and communicated to defendant, — threats which deceased never attempted to carry into execution, lest it was when defendant was chasing him with a pistol. We are not prepared to say the court would have erred had it refused to instruct upon self-defense.
The judgment is affirmed.