247 Mo. 640 | Mo. | 1913
From sentence of death imposed by the circuit court of Livingston county defendant ap
Deceased, his wife and one Urton lived in a house on Third street, in Chillicothe, and defendant lived some two or three blocks distant. Deceased was a butcher, conducting no establishment of his own, but accepting employment in killing hogs and cattle for others as opportunity offered. Defendant at times engaged in the same business and he and deceased frequently worked together.
On the day of- the killing defendant, Urton, deceased and the latter’s wife w'ere at the Watts home and had been drinking a mixture made of water and alcohol which deceased procured and his wife prepared i for consumption. None of the party seems to have been very much intoxicated, however, if Mrs. Watts is to be believed. During the afternoon Urton and deceased had a difficulty over some coal Urton had picked up along the railroad and wanted to sell to one Elliott. A struggle or scuffle between the two ensued but neither was injured and Urton left the premises. There is. evidence deceased was angry. Later a corn-knife belonging to Urton was found in the room, but deceased’s wife seems not to know when or how it got there, though she admits she removed the weapon after her husband was killed.
After Urton’s departure, according to Mrs.. Watts’s testimony, deceased and defendant engaged in a friendly scuffle from which they desisted when she suggested they might knock over a lamp or table. Immediately thereafter, she says, defendant left the house, taking with him a small rifle and a butcher knife used for killing hogs. Defendant had asked to borrow the knife for use the following day, but deceased had declined to lend it. With these defendant left and ■ went west toward the business part of the city. De
When defendant started away from where he and deceased had stood, the latter “broke out in a cry and began to call him to come back.” Witness did not hear what was said between the two; could hear the sound of yoices but could not understand what was
The only wound upon the body was a knife wound in the leg. The wound of entrance was almost exactly the width of the knife blade, the weapon having been driven straight to the femur and the point having severed the femoral artery. Death resulted from loss of blood in about an hour and one-half or two hours after the stabbing occurred. The wound on the deceased’s leg was about three or four inches below the hole cut by the knife in deceased’s trousers.
Prom the point on the sidewalk where the witnesses say deceased was standing when defendant returned to him, after being called back, to the bed upon which deceased fell, there was a trail of blood. Defendant’s hat was afterwards found in the house. The knife and rifle were found in the western part of Ohillicothe and there was evidence that about an hour after the stabbing defendant was seen, apparently very drunk, in that part of the city. He was arrested at his home nearly two hours thereafter. There is some little evidence of furtiveness in defendant’s manner of approaching his home, but the only witness who testified in regard to this says defendant knocked on the door two or three times and demanded to be let in, but, receiving no reply, struck a match, stood there a little while, and then “came back past the west side of the house and as he got to the southwest corner he made a dive out where there is some brush there. . . and came right out toward the yard fence.” Witness, seeing defendant would discover him, started toward
At this time two blocks and a half away at deceased’s residence a somewhat large and excited crowd bad gathered. As witness and bis prisoner proceeded westward along tbe street defendant fell down several times and acted as if drunk. He was bareheaded and unarmed.
Tbe information charged not only murder in tbe first degree but also charged defendant bad been previously convicted of assaulting one Lina Kiles with intent to kill her. Tbe judgment of conviction of that assault was in evidence as was a certificate of Warden Andrae to tbe effect defendant bad been incarcerated in tbe penitentiary, served tbe term adjudged and bad been discharged.
Tbe evidence for tbe defense disclosed that deceased and defendant bad been together most of tbe day from eleven a. m. until tbe killing took place and that they were at all times observed to be in a good humor. Sometime after Urton bad brought Elliott to tbe Watts home to close tbe sale of coal and failed, Urton and deceased were seen in tbe street in front of tbe bouse “quarreling and fussing” and deceased seemed very angry.
There was some evidence deceased and bis wife differed as to permitting Urton to continue living with them, deceased opposing it. According to defendant’s testimony there is reason to believe deceased was jealous of Urton.
Defendant testified ■ as to being with deceased various times during tbe day and to deceased having ordered Urton to leave tbe place. This last resulted in a difficulty between deceased and Urton in wbicb
At this juncture defendant says he seized deceased’s hand and a struggle for the knife ensued in which both contestants finally got down upon their linees; that while they were struggling and swaying to and fro deceased suddenly cried out as if in pain and relaxed his hold upon the knife, whereupon defendant seized it and hurried out of the house, picking up the rifle as he went. This he explained by saying he did not want to be shot in the back. According to defendant deceased called to his wife he was cut
Among other, instructions the following was given:
“The court instructs the jury that flight raises the presumption of guilt, and if the jury find and believe from the evidence that the defendant, after the alleged commission of the offense set forth in the information, fled from the scene of the difficulty, for the purpose of avoiding- arrest and trial for said offense, you may take this fact into consideration in determining his guilt or innocence, but in considering the evidence that the defendant left immediately after the difficulty, you will also consider the evidence before you, respecting -the defendant’s mental condition at the time, and that immediately after the defendant left the scene of the difficulty he lost his memory and had no recollection of anything that happened from that time until he remembered being in the county jail of this county on the following morning, and you will also consider the evidence that the defendant was arrested in the vicinity of his own home.”
I. Counsel for defendant contends the evidence is insufficient to support a conviction of first degree
Further, though many decisions of this court approve instructions to the effect that flight to avoid arrest and prosecution raises a presumption of guilt the rule best supported by reason and authority is that such flight is merely a circumstance to be considered and weighed by the jury in connection with the other evidence in the case in determining the issues. The contrary rule seems to be peculiar to this State, as has been pointed out by other courts. [State v. Poe, 123 Ia. 118; Territory v. Lucero, 16 N. M. 652, 39 L. R. A. (N. S.) 58 and note.] Though this rule be adhered to, however, the instruction given had no evidence to support it and was, consequently, erroneous.
The judgment is reversed and the cause remanded. Boy, C., concurs.
The foregoing opinion of Blair, C., is adopted as the opinion of the court. All the judges concur.