14 Mo. App. 567 | Mo. Ct. App. | 1884
delivered the opinion of the court.
The defendant was convicted of murder in the first degree, for killing one George Ingram, in St. Louis, in April, 1881.
The deceased and the defendant were negroes. The homicide was committed in a bar-room on the east side of Seventh Street, which was a resort of prostitutes. The premises had a bar in front, with a sort of sitting-room for the women and their associates in the rear. This back room was separated from the front by a partition eight feet high with a doorway in the middle. This room had a side door opening into a narrow alley-way which communicated with a yard in which were tenement houses. The yard opened upon an alley between Sixth and Seventh, Wash and Carr Streets, known to the police as Clabber Alley. The deceased was living in concubinage with a woman named Lizzie Denney. The cause of. his death was a stab in the right breast. He received on the same occasion four other wounds. One on the face, which was dangerous, but not necessarily mortal, and three in the back which were not dangerous, the knife not penetrating beyond the left shoulder blade.
On the day of the homicide, about noon, deceased was sitting reading a letter in the back room spoken of above. Three or four women were sitting in the room. Defendant
This is substantially the testimony of the witnesses for the State. From their statements it would appear, that Ingram used no bad language and no threats, from first to last, except that he told Emerson when he pressed upon him, to keep back or he would fire.
One witness for defence testified, that the wound in the
One witness for the defence testified, as follows, as to the origin of the difficulty: “Williams got hold of Lizzie Denny. She told him to let her go; she was sick. Ingram raised from his chair and told him to leave that woman be; that was his woman. Emerson spoke, says he: ‘We’ve known this woman as long as you have, I guess.’ Williams spoke up; says he: ‘ She is as much my woman as she is yours.’ Ingram spoke, says he: ‘ You are a God damned liar.’ Well then, it was a ‘ damned lie’ and a ‘ damned son of a bitch,’ forwards and backwards, for about a minute, so fast that I could not tell who was cussing the fastest. Ingram spoke out as loud as he could, and said: ‘ God damn you, I’ll show you whose woman she is,’ and rushed by me, through the door, and ran behind the counter, and took Mr. Goldsmith’s pistol.”
Rose on his own behalf, testified that he never saw Ingram before the quarrel; that he knocked the pistol aside when pointed at his heart, to save his life ; that he did not stab Ingram, and that he had no knife.
In rebuttal, the state read the testimony of defendant at a former trial, in which he stated that Ingram cursed him and his companions for “ fooling” with the woman Denny; that Rose remonstrated that he ought to address Emerson, who also had touched the woman; that deceased then said to Goldsmith, that the black sons of bitches were putting the women about, and that he would permit no black son of a bitch to do so, and made various threats;
In this testimony, also, Eose says that he had no knife. The police officer who arrested Eose, says that he told him that he had had a knife, and cut deceased in self-defence.
There was a testimony tending to show that deceased was of a quiet disposition, and not known to swear or use rough language; and also testimony tending to show that he was of a quarrelsome disposition, and that he had quarrels before about the woman Denny.
The court instructed as to murder in the first and second degrees, and as to the law of self-defence.
In defining murder in the first degree the court defined “ deliberately ” to mean, “ in a cool state of the blood, not in a sudden heat of passion engendered-by a lawful, or some just cause of provocation; ” and the court told the jury
It is not necessary to repeat what has been said as to these instructions in the opinion in the case of The State v. Douglass, delivered with this opinion. The supreme court has very recently said (The State v. Ellis, 74 Mo. 206): “ What words of reproach and attendant circumstances will be deemed a just cause of provocation, and constitute the homicide murder in the second degree, is, in every case, a question of law for the court; and whether the state of mind necessary to make the killing the lowest grade of murder, was, in fact, superinduced by such provocation, and actually existed at the time of the killing, is a question of fact for the jury. And the cases must be decided as they arise, each upon its own facts. Nor do we see the propriety of instructing a jury in every case of murder as to what constitutes that technical heat of passion, or other sudden passion, which will mitigate a homicide when the facts in evidence do not tend to show the existence of any such passion. It is for the court to determine what grade or grades of homicide the evidence tends to establish; and it is the duty of the court to confine its instructions to such grade or grades. Where there is no evidence of such sudden passion, a jury may be instructed as follows: “ Deliberately, means done in a cool state of the blood, not in sudden passion engendered by a lawful, or some just, cause of provocation; and the court instructs you that, in this case, there is no evidence tending to show the existence of any such passion or provocation.” When there is evidence
In the present case there was some evidence of degrading' language addressed by deceased to defendant and his companions, and of attendant circumstances well calculated to produce that sudden rage which is held not to be consistent with deliberation. The weight of the evidence as to this was for the jury. But it was not for the court to shut its eye to this evidence, however clearly contradicted; and the court should have told the jury that the provocation and passion, if established by the evidence, did, as a matter of law, reduce what would otherwise have been murder in the first degree to murder in the second degree. It was error, in view of the evidence, to leave it to the jury to determine what was and what was not “ just provocation.”
In The State v. Andrew (76 Mo. 101), it is held that evidence of recent threats by deceased against defendant — that his pistol was found under his body after he was killed, — the effort of the principal witness for the state to conceal this pistol, — in connection with the testimony of the accused, warranted an instruction for murder in the second degree. In the present case, the evidence that de
Our attention is not directed to any other error in the record, nor have we discovered anything else upon which we think it expedient to comment.
The judgment is reversed and the cause remanded.