126 Mo. 597 | Mo. | 1895
— At the March term, 1893, of the St. Louis criminal court the defendant was indicted for murder in the first degree, charged with shooting with a pistol, and killing, one John J. Schmidt in said city on the twenty-second day of November, 1890. On application of defendant the venue of the cause was changed to the circuit court of Montgomery county, where, upon trial had to a jury, he was found guilty of murder in the second degree and his punishment' assessed at ten years’ imprisonment in the penitentiary. The cause is in this court on his appeal.
Deceased was the son of Oapt. Joseph Schmidt, who, on the twenty-second day of November, 1890, kept a grocery and saloon in the city of St. Louis. About 5:30 on the evening of that day Capt. Schmidt was behind the bar in the saloon when defendant and three others came in and took some beer. About half an hour afterward defendant came in again, accompanied by a little girl, he having in his hand a pitcher
Defendant proved a good character for peace and quiet, and introduced evidence tending to show that when he had received the pitcher full of beer from Captain Schmidt, he said to the latter “in a joking spirit,” “what will you do with a man that has no ■ money?” In reply to which Schmidt said that he would not give him the beer. Appellant then took from his pocket a half-dollar, and with his thumb and forefinger flipped or spun it on the counter, and it rolled off the counter behind. Schmidt charged defendant with having thrown the coin in his face, and when this was denied, called appellant a liar, came from behind the counter, caught him by the collar of his coat and said he would put him out, struck him in the chest and on his head and called to Johnnie (who stood at the money drawer) to bring “what was
Defendant testified in his own behalf as follows: “After he (Captain Schmidt) struck me, I felt that I was going to be injured and I pushed my hand down behind me. He still had hold of me. I got the revolver up and raised the trigger on the hammer. In doing so at this very time the hammer fell and exploded a cartridge. I was trying at this time to cope with Captain Schmidt, who was attacking me. Immediately after that I became perfectly unconscious of further proceedings in that house. My last recollection,. the moment I had the revolver in that position that I indicated, I took it out then and raised the hammer in order to intimidate him from attacking me; that moment, from what cause I do not know or understand, I became perfectly unconscious. I did not level or attempt to level the pistol at Johnnie Schmidt at any time or to shoot him. At the time the pistol exploded, I intended to use it on Captain Schmidt; I did not intend to injure Johnnie; the trigger accidentally fell down and exploded the cartridge; I had no reason to discharge the revolver in the direction it went; I did not mean to explode it; I intended to use it on Captain Schmidt, provided he continued his attack on me.”
“By the Court: ‘You did not intend to shoot Captain Schmidt at the time the revolver exploded— did you, or did you not?’ A. ‘I had it for the purpose of warding off his attack.’
“Q. ‘ Did you, when the revolver exploded, intend by that shooting to shoot Captain Schmidt?’ A. ‘That is the purpose I took it out for — it was the intention to njure Captain Schmidt.’
“Q. ‘But it exploded prematurely, did it?’ A. ‘Yes.’
“By Mr. Johnson: ‘You tried to get out your pistol to protect yourself against assault?’ A. ‘Against the assault of Captain Schmidt.’
“ Q. ‘It went off before you .got it into position?’ A. ‘Yes.’”
In rebuttal.the state offered testimony (over the objection of defendant) tending to show that one Alexander Coudry, who had testified as an eyewitness for' defendant, was not present in the saloon at the time of the difficulty.
The court instructed for murder in the first and second degrees, manslaughter m the fourth degree, self-defense, and on the good character of defendant.
It is claimed that the court committed error in instructing for murder of the second degree. This contention is placed upon the ground that there was no evidence upon which to predicate such an instruction; but this is not borne out by the evidence, which, if the state’s evidence is to be believed, tended strongly to show defendant guilty of murder in the second degree, if, indeed, not of the first degree; and of the weight of the evidence the jury were the sole and only judges.
The state over the objections of defendant was permitted to introduce in evidence and to present to the jury a photograph of the interior of the saloon in which " the shooting occurred on which were grouped three prearranged figures to indicate the position of defendant, deceased, and the father of the deceased. It is argued, by counsel for defendant, that this deprived defendant of the right of cross-examination, with reference to the accuracy of the positions assumed, thus giving undue weight to the theory of part of the witnesses as to the manner in which the homicide occurred. This same question was raised by counsel for defendant by instruction after the evidence was all in, in which the
The photograph was taken shortly after the shooting and more than three years before the trial. It was shown to be- a true representation of the inside of the saloon at the time of the difficulty, and the positions of the three persons, as seen in the photograph, to be those, as near as could be determined by the witnesses, occupied by the defendant, deceased and Capt. Schmidt. It has always been permissible to use diagrams in the trial of causes, both civil and criminal, and especially in the latter class to use diagrams, if shown to be correct, to illustrate the position of persons and places, and to better enable the witnesses to properly locate them. If, then, a diagram may be used for such a purpose, we can see do good reason why a photograph may not be, by which is presented to view everything within the range of the camera at the time the photograph is taken. This did not deprive the defendant of the right to cross-examine the witnesses who testified to its correctness, and as to the positions of the persons in the saloon, or its fixtures. He had the same right in this regard that he would have had, had a diagram been used instead of the photograph.
In Shaw v. State, 83 Ga. 92, the prosecution, over the objection of defendant, introduced in evidence a photograph of the locality, scene of the homicide, and of persons who were placed in the positions said to have been occupied by the defendant and his accomplices at the time of the killing, and while.it was said that there was no necessity for using the photograph, it was held that there had been no error committed in admitting it.
In People v. Jackson, 111 N. Y. 362, a photograph
A further contention is that the court committed error in excluding evidence offered by defendant tending to show that he was intoxicated at the time he did the shooting, as bearing upon the questions of premeditation, deliberation, and malice aforethought. It has so often been decided by this court that voluntary drunkenness is no excuse for, or extenuation of, the crime of murder, that it is unnecessary to say more than 'that there was no error- committed in excluding such evidence. Schaller v. State, 14 Mo. 502; State v. Harlow, 21 Mo. 446; State v. Pitts, 58 Mo. 556. Nor could the jury take it into consideration in determining whether the defendant acted willfully, deliberately and premeditatedly. State v. Cross, 27 Mo. 332; State v. Sneed, 88 Mo. 138.
The jury were instructed upon every phase of the case authorized by the facts in proof, including that of 'good character, which instructions were eminently fair to the defendant and fully justified by the facts.