106 Mo. 36 | Mo. | 1891
Defendant was jointly indicted with his father, Thomas Stockwell, in the circuit court of St. Francois .county in February, 1887, for the killing of Juda Bess. Upon a trial had, Thomas Stockwell was acquitted, but the defendant was convicted of manslaughter of the fourth degree, and sentenced to imprisonment in the penitentiary for a term of two years.
The difficulty out of which this prosecution grew occurred on the sixteenth of November, 18S6, in St. Francois county. ' At the time, Robert Stockwell, the appellant, lived on a farm in said county, the legal title to which was in his wife. Thomas Stockwell, the father of Robert, made his home with him. Jonathan Bess and family occupied a part of the same premises, living in a house distant about a quarter of a mile from the Stockwell residence. They were there by virtue of some claim which was not recognized by Stockwell, and they paid no rent.
On the morning of November 16, Robert Stockwell and his hired man were cutting firewood near where Bess lived. After they had been there awhile, Bess and his son Daniel went into the timber and commenced cutting. As soon as Robert Stockwell saw them he went home. (He is very deaf, and he said his purpose in going home was to get his father to go with him and talk to Bess and warn him from cutting the timber.)
Daniel Bess testified that defendant, Robert Stock-well, twisted the gun out of his hands “threw the muzzle of the gun back up hill and shot Juda. When he shot her, he said: ‘ By God, I have killed- one and I will be God-damned if I don’t kill another.’ ” Defendant testified in regard to the homicide as follows: “I grabbed the gun with my left hand and threw the muzzle in the air; I grabbed it with my right hand and
The court instructed the jury in regard to murder of the first and second degrees, and manslaughter of the second and fourth degrees. The technical terms used in the indictment were .properly defined. The court also properly defined that heat of passion which reduces murder of the first to murder of the second degree as well as that heat of passion which reduces a homicide to manslaughter. .
The defendant contends that the court erred in giving the following instruction: “If you believe, and find from the evidence in this cause, that Juda Bess struck, or assaulted, the defendant, Robert Stockwell, and, while under the influence of violent passions aroused by the act and conduct of Juda Bess, he fatally shot and killed Juda Bess with a shotgun, but not in a cruel or unusual manner, without malice, as defined in these instructions, whether with, or without, an intent to kill, and he did this under such circumstances as does not constitute excusable homicide, and that Thomas Stockwell was then and there present, and abetting, counseling, encouraging or assisting the defendant, Robert Stockwell, in the commission of such offense, you will find defendants guilty of manslaughter in the fourth degree.”
Defendant says “this instruction in view of the evidence is manifestly erroneous. The killing was clearly accidental; deplorable of course, but involuntary and accidental.” We think the evidence not only warranted, but required, the court to instruct the jury in regard to an accidental killing, and, if the court had gone no further than to give the instruction under review, error would have been committed; but the court did not stop here. The jury was further instructed as follows : “The court instructs the jury that if they shall believe from the evidence in the cause that Juda Bess was shot
The two instructions quoted presented to the jury very clearly the theories of the defendant as well as the prosecution. The definition of manslaughter of the fourth degree, as given by the court, is correct. State v. Thomas, 78 Mo. 328; State v. Gee, 85 Mo. 647.
And the definition of an excusable homicide, as applied to the facts of this case, was certainly as favorable to defendant as he could ask. The jury must have found that the killing was not accidental, and the evidence justified such a finding.
II. The defendant insists that there was no evidence upon which to base instructions for murder of the first and second degrees, and manslaughter of the second degree. We do not concur in this view of the evidence, but, even if the contention be right, this would not authorize the reversal of the judgment for the simple reason that defendant was not convicted of either one of those grades of homicide.
Finding no error of law or fact in this record, the judgment of the trial court is affirmed.