206 Mo. 626 | Mo. | 1907
On the 21st day of August, 1905, the prosecuting attorney of Carter county filed an information, duly verified, charging the defendant with murder in the first degree. The offense was alleged to have been committed on the 20th day of August, 1905, the weapon used was a knife, and the name of the deceased was Alvy Chilton. At. the September term,
The State’s evidence tended to prove that a protracted meeting was being held in one of the churches in the town of Rogers Mill, near Brushy Creek, in Carter county, which meeting continued for some time. The defendant and the deceased were both young men and both attended the meeting on Saturday night. There was an unfriendly feeling existing between the young men, and on Saturday night the defendant stepped twice on the toes of the deceased. Eiach time the deceased requested him to keep off of his feet, and the defendant, each time he walked near the deceased, put his hand in his pistol pocket. The next morning, about eleven o’clock, the defendant was introduced by William Bowman to a Mr. Williams, when Mr. Williams asked the name of the creek, and the defendant said that it was the “Big Savage,” and that trouble had been brewing there for some time and that it would probably happen there that night. That night about 7:30 the deceased and others were sitting in the church, services having just commenced, when the deceased went out, and walked to a well of the F. M. Rogers place, which was only a few feet from the church. In about five minutes the defendant got up and followed him over to the well. Several persons testified to seeing a difficulty between the two beginning with a fist fight and then hearing the deceased say, “You have cut me, you have killed me;” and the defendant say, “You tried to draw a pistol on me.” The deceased walked a short distance away and fell, when the defendant said, “I guess, by Gicd, he is fixed.”
The defendant’s evidence tended to prove that there was a very unfriendly feeling existing between the defendant and the deceased; and that on the night before the fatal difficulty the deceased followed the defendant around in the crowd near the church. At one time the deceased said to the defendant, “Damn you, don’t you step on my toes any more.” A little before dark on the evening of the homicide, one Lee Beavers and several other young men and boys were attending the evening service at said church,' when Beavers climbed the fence and went to the well on the Rogers place. About the time he had drawn up1 a bucket of
I. The information is sufficient both in form and substance to charge murder in the first degree, but the prosecuting, attorney, with the permission of the court, elected to try the defendant • for murder in the •second degree. All the evidence in the case was ■admitted without any objection on the part of the defendant’s counsel, save and except in one instance. During the cross-examination of the defendant’s witness, Lee Beavers, the prosecuting attorney asked him if the defendant’s father had
H. The instructions given by the court fully cover all the points of law arising upon the evidence. The court defined murder in the second degree and the technical terms used therein, as they have often been explained and approved by this court. The court also instructed on manslaughter, reasonable doubt, presumption of innocence, and the credibility of the witnesses. It is unnecessary to burden this opinion with the reproduction of the instructions, because they are in the often-approved form on each of these subjects. It is true that the defendant, in his motion for new trial, assigns as error the failure of the court to fully instruct the jury on all questions of law in the case, but independently of the fact that no objection was made at the time to such failure, if any, and no exception saved, we have been unable to conceive of any proposition regarding the instructions which was not covered.
III. The defendant was found guilty of murder in the second degree and we have read the record and the whole testimony in the case to ascertain if the evidence supported the verdict. The evidence discloses that there was a state of ill-feeling existing between the defendant and the deceased. There was testimony that on one occasion shortly before the fatal encounter, the defendant had apparently purposely trod on the toes of the deceased, and that on the morning before the homicide that night the defendant had uttered a threat to the effect that trouble had been brewing there for some time and would probably happen that night. The evidence further tended to show conclusively that the defendant went to the- church that night armed with a pistol and a knife. It appears that after the young men had taken their seats in the church the deceased remarked to a companion that he was going out to get a drink of water, and left the church and went to a well in the yard of Mr. Rogers, who lived only a few steps from the church. On the part of the State the evidence showed that a few minutes after the deceased left the church, the defendant and a relative of his also left the church and went to this same well in the Rogers yard. After taking a drink of water, the defendant remarked, according to the evidence, that some young-men were making enough racket to have a little hell. According to the evidence on the part of the defendant, the deceased replied that “he.would like to have a little trouble that night.” To which the defendant replied, “I guess that is what you have been following me around for,” and thereupon they mutually began to strike each other with their fists. During this encounter, the testimony of the defendant shows that he drew