153 Mo. 548 | Mo. | 1900
Indictment for murder in the second degree, trial and conviction of manslaughter in the third degree, and defendant appeals.
The difficulty which resulted in the tragedy which forms ■the basis of this prosecution, arose between defendant and G-astine on July the 3d, 1897, in relation to a quarrel between their boys. Gastine died on the 17th of the same month, and the State asserts that his death resulted from wounds inflicted on him by defendant with a pocket knife.
The defendant’s account of the matter as abstracted by the State, is the following: “I am the defendant. On July 3, 1897, a number of the neighbors had come over to my house to have dinner, and after we had dinner I lay down and went to sleep, and along in the afternoon the boys came in and was talking about a fight among the children. Directly there was a row again among the women, and I asked what was the matter and Mr. Spaulding’s boy said that Mr. Gastine’s boy had whipped my boy and that Mr. Gastine would not allow him to defend himself. Well, I says, I just guess that is a mistake. I says, Eph, I guess you raised a racket, and if you have I will punish you. I went in the house and put on a pair of shoes and proceeded to the pump where Gastine was. I asked, what is the matter with the boys. He said, ‘nothing that I know.’ I said Mr. Spaulding’s boy had come and complained, and that if my boy has been imposing on your boy I want to whip him. He shall not impose on my neighbor’s children. Gastine said there was nothing wrong with the boys. I said, I don’t know,
In'many particulars defendant’s testimony was corroborated by his witnesses as well as by some of those on the part of the State.
The evidence on the part of the State while it discloses that the knife penetrated the pleural cavity, yet did not show that the lung was cut nor that the wounds were fatal. Dr. Applegate, although he at first answered that he considered the wounds fatal, yet on cross-examination admitted that he was just speaking of the time he saw Gastine, four days after the stabbing when the wounds having received no medical attention whatever, were greatly inflamed.
Dr. Harrison, the coroner, who held a postmortem on the body, testified that Gastine died of blood-poisoning and that the left lung had suppuiated almost entirely away; and he could not “tell what injury was done to the lung; it might-have been cut all to pieces, and might not have been touched to amount to anything.”
The court gave as asked by the Stats instructions on murder in the second degree, manslaughter in the third degree, in the fourth degree, self-defense, reasonable doubt, presumption of innocence and good character. It is only necessary 1 o quote a portion of the instructions given, as follows:
“2. Manslaughter in the third degree for the purposes*554 of this trial is 'the killing of a human being in a heat of passion without a design to effect death, by a dangerous-weapon in any case except such wherein the killing of said human being is justifiable or excusable as explained in the subsequent instructions ......
“3. The court instructs the jury that if they believe and find from the evidence in this cause that at the county of Dunklin and State of Missouri, on July 3, 1897, defendant, John Strong, who is indicted herein as John Strawn, did willfully strike one G-. ~W. Gastine upon the body with a knife having a blade two and one-half inches in length and that such knife was a dangerous weapon and that said blow was struck in the heat of passion without a design to effect death and the said Gastine died from the effect of said wound on July 20, 1897, in said Dunklin county, then you will find the defendant guilty of manslaughter in the third degree; notwithstanding you may also find and believe from the testimony that unskilled medical treatment aggravated such wound and that deceased might have recovered if greater care and skill had been employed in treating him.”
I. The court permitted Dr. Applegate to be asked the question whether the proper treatment of Gastine would not have been to have inserted a drainage tube in the lung cavity and have kept a constant drainage from that part of the body. This he answered in the affirmative. Subsequently, Dr. Harrison, the coroner, was asked a similar question which, on objection by the State, he was not permitted to answer. The same idea which refused permission to the question, finds enunciation in the latter part of instruction 3 already quoted.
On the topic thus embraced in the evidence denied and the instruction given, a learned text-writer says: Hf death ensues from a wound given in malice, but not in its nature mortal, but, which being neglected or mismanaged, the party died; this will not excuse the prisoner who gave it; but he will be held guilty of the murder, unless he can make it clearly
In this case there was no attempt made, nor offer to'show that the sole cause of Gastine’s death was one of the things mentioned by Greenleaf as sufficient to accomplish the exoneration of one charged with homicide. This being the case, there was no error in rejecting the evidence or in giving the instruction. To the same effect, see State v. Landgraf, 95 Mo. 97.
II. In State v. Rapp, 142 Mo. 443, we have said, quoting from a former opinion, that “self-defense is an affirmative, positive, intentional act” If this be true, then an instruction in relation to manslaughter in the third degree should not be given in conjunction with an instruction relative to self-defense, since the latter embraces every self-protective intention known to the law, even though it embrace the taking of life.
And although defendant swears he did not intend to kill Gastine, though he stabbed him once in the arm and twice in the side, yet his testimony on this point is not to be received or made the basis of an instruction. [State v. Nelson, 118 Mo. loc. cit. 126 et seq. and eases cited.]
This view also accords with what is said in regard to a similar instruction in regard to manslaughter in the third degree. [State v. Pettit, 119 Mo. loc. cit. 416, which overrules State v. Talmage, 107 Mo. 543.]
The instructions should therefore have been confined, so far as concerns the grade of the offense, to grades other than that of manslaughter in the third degree.
III. There was error in giving instruction 4, at the State’s instance, because no definition was given of the words
IV. No error occurred in the refusal to admit testimony that defendant immediately after the stabbing, went after a physician for Gastine. Such self-serving acts are inadmissible. [State v. Taylor, 134 Mo. 154, and cases cited.]
Eor the errors set forth we reverse the judgment and remand the cause.