254 Mo. 458 | Mo. | 1914
Guy Stanley, the deceased, was a young man, “big and strong,” who had been employed on the farm for several months; he had been reared in the community. He was addicted to excessive drinking. The defendant used intoxicants, but the evidence does not show that he became intoxicated. The defendant and the deceased were congenial', going out together on trips to town.
The killing occurred on Sunday, December 3,1911, at about seven-thirty in the evening.
Glenn Burge, a sixteen-year-old boy and cousin of the defendant, testified that in watermelon time prior to the killing, Stanley told him in language not proper
Bert Stewart testified that about a week before the killing he was going to town with the deceased in a buggy and that he told Stanley that if he was bothering Mrs. Vest any he had better go away from there or he would get his head shot off; and that Stanley fired five shots from his revolver and said that was a game two men could play at. There was evidence tending to impeach the reputation of this witness. Neither of those witnesses told anyone about what the deceased told them until after the killing.
Glenn Burge and Pearl Barker testified that on Friday evening, before the killing, in the absence of defendant, in the kitchen of the Vest home, and while Mrs. Vest was in the adjoining room, Stanley came in intoxicated, having a pistol, indulged in vulgar talk, said that he could have sexual intercourse with Pearl Barker, and made other offensive statements. The evidence tended to show that this language of the deceased was overheard by Mrs. Vest. The evidence does not show where either the defendant or Stanley stayed all night that night. After the scene in the kitchen, Stanley left, and Mrs: Vest testified that Pearl Barker took charge of the pistol. On Saturday, the defendant and Stanley drove together to the town of Oraig, returning about ten o’clock that night. Mrs. Vest and Pearl Barker testified that Stanley was drunk and came into the room where they were in bed together, while the defendant was in the kitchen, and that he lay down across the foot of their bed and pinched their limbs. They made him get up and told him to go to bed. He got up, but lay down on the floor
About nine o’clock Sunday morning, the defendant and Stanley left home afoot to go to Bigelow, about three miles distant. Stanley returned to dinner. The defendant took dinner at the home of Ed Burge, his uncle, about three-quarters, of a mile distant. There were several visitors at the Vest home that Sunday afternoon, including a neighbor, Mrs. Smith. There was some card playing, and the time appeared to be pleasantly spent as to all parties concerned,, including Mrs. Vest, Pearl Barker and Stanley. Mrs. Vest and Pearl Barker testified that during the afternoon Stanley in a jocular way spoke of having pinched them the night before, and that he acted like he was going to pinch Mrs. Smith; that she said for him to behave himself, saying that she was too old a lady for him to be fooling around. About six o’clock everyone left the Vest home, except Mrs. Vest, the baby and Stanley. Just after dinner that day, the defendant, his uncle and Lester Burge, his cousin, drove across the river to Fargo, Nebraska, and were about twenty minutes in a saloon where they drank a beer.
Lester Burge testified that they got back from Fargo and he took Vest in a buggy to Vest’s home, letting him out at the gate about one-eighth of a mile from defendant’s house, about seven o’clock. That as "they parted, defendant in a jocular way said, “I have blood in my eye. ’ ’
Alex Cunningham testified that he heard the defendant make the same statement while on the road that night. After leaving the defendant at his farm gate, Lester Burge drove back home and was putting-up his horse when a phone message was received at the Burge home from Vest, calling them down to the Vest home. Just at that time Pearl Barker and Lee Blevins, who had gone to church together, in a buggy, finding there were no church services, reached the
The witness Adams testified that he got to Stanley’s bedside early in the night and asked him if he
Tom Bridgeman said to him, “Guy, what was the trouble between you and Frank?” He said, “There wasn’t any trouble.” Then he asked about insulting his wife, and Guy said, “Nothing more than pinched her leg. ’ ’
Adams further testified that Bridgeman asked Stanley how Frank came to shoot him and he said, “Frank came to the door and says, ‘Guy, I am going to shoot you,’ or ‘kill you,’ ” and that he, Stanley, answered, “I wouldn’t do that.” At another time, deceased said that he answered-defendant by saying, ‘ ‘ Help yourself, go to it. ’ ’ Stanley stated that the defendant then opened up the pump-gun on him. Tom Bridgeman’s testimony was- to the same effect. Bridgeman further testified that the deceased said, “I was lying on my right side with my back to the door and I was about half asleep and had been in bed but a short time. ’ ’
Mrs. Yest testified that just after six o’clock on Sunday evening after the others had been gone awhile, she was putting the baby to sleep and the following occurred:
“While I was trying to put him to bed, Mr. Stanley took off his hat and coat and went into his bed room, and I thought he was going to bed. In a few minutes, he came out in his. night clothes, and tried to force me into his bed room, and I told him to go away, and I called him a dirty dog, and I told him to tend to Ms own business, or I would tell my husband when he came home. He said he didn’t give a God damn for him.
*464 “Q. And what did he do then? A. Took hold of me, and grabbed me, like he was going to force me into his bed room, and I got away and ran ont the south kitchen door, and went around to the front gate.
“Q. Pretty soon after that, whom did you see coming? A. My husband.
“Q. Tell the court and jury, in your own way, Mrs. Vest, what Frank did or what you said to him when he came up to you? A. He asked me what the matter was, and I told him that Guy had come out in his night clothes and tried to force me into his bedroom, and then he asked me where he was, and I told him he was in the house, and we came on in the house together. ’ ’
She also testified that she then told her husband about the conduct of Stanley on Friday and Saturday nights preceding. She stated that her husband was mad, crazy mad, and terribly excited after hearing what she had told him. The defendant testified that he got home about six-thirty and found his wife at the front yard gate crying, and that she told him that just a few minutes before he came home Stanley had come into her room in his night clothes and had grabbed her and was going to force her into his bed room and she told him to go away and then he grabbed her and was going to take her in there, and also told him how he had acted on Friday night and Saturday night before and that she said, “I want you to take him away from here; I am afraid of him.”
Defendant testified that he then went into Stanley’s bed room and found Stanley lying on his right side, with his back towards the front of the bed. He further testified:
“A. I asked Guy, ‘Why have you been treating Iva the way you have?’ He said: ‘I don’t know as it is any of your business.’ I says, ‘I want you to get up and get out of here, and never set foot on my premises again. You need killing.’ He said, ‘Hop to her,’ and*465 grabbed Ms revolver, and then I grabbed my shotgun that was sitting behind the door, and fired three shots as quick as. I could.
“Q. What did you do that for? A. Well, sir, I thought there was one of three things- for me to do: I either had to run, and leave my family there alone and leave my home, or shoot him, or be shot and killed. •
“Q. Did you know that he had a revolver about the— A. Yes, sir.
“Q. Did you see it then? A. Yes, sir.”
No pistol was found about the deceased after the shooting.
Several witnesses impeached the reputation of the defendant for morality, but stated that he was truthful and paid Ms debts.
There was an objection to the introduction of the dying statements of the deceased on the ground that the deceased was not conscious when they were made, and that they were not made under a realization of impending death. All of the witnesses who testified to dying statements testified that the deceased, when making such statements, appeared to understand what he was saying.
The court instructed on first and second degree murder and gave all other instructions' usually given in such cases, including those of presumption of innocence, reasonable doubt and self-defense. Though requested, the court refused to instruct on manslaughter.
OPINION.
That language seems to indicate that every sort of provocation is a matter of consideration for the jury, but like all other legal rules the one there laid down is subject to some very clear exceptions and limitations. One rule is that mere words, will not of themselves amount to provocation sufficient to reduce murder to manslaughter. [State v. Barrett, 240 Mo. 161; State v. Bostwick, 245 Mo. 483.] It was held in State v. France, 76 Mo. 681, that in order to reduce murder to manslaughter where a husband killed another on account of his adultery with the defendant’s wife, it was necessary that the killing should have occurred at the very time of the adultery.
In State v. Holme, 54 Mo. 153, the court cited Maher v. People, 10 Mich. 212, in which the assault was committed half an hour after the husband had seen his wife and the party assaulted entering and emerging from a wood under suspicious circumstances, and had followed up and assaulted the man while laboring
It appears from those authorities that there are some very clear rules with reference to what is an adequate provocation. As was said in State v. Barrett, supra, speaking of that rule, that mere words do not constitute adequate provocation, “This rule is well established, and we imagine it would not be the part of wisdom to substitute in its place one fluctuating or less rigid, which would require the accused to he judged in each case according to the excitement incident to his natural temperament when aroused by real or fancied insult given by words alone. ’ ’
Law is made for the restraint of passions. The libertine must restrain his lust. The father of a family, finding his wife or daughter in the grasp of an adulterer, is tenderly considered by the law, and if in his frenzy he slays the wrongdoer, his offense is reduced to manslaughter. Where such violation of a man’s home is attempted in his absence and fails, the law does not consider that there is. any adequate cause to arouse the passions of the husband or father to such an extent as to overthrow his reason. He is required to restrain his passion for slaughter. Especially is that true where, as in this case, the party killed was evidently drunk, not only when he insulted the wife, but when killed by the husband. Stanley’s indecent be
We have not bad tbe advantage of a brief in behalf of tbe defendant, but have diligently searched tbe record for errors, guided by tbe motion for a new trial, and we have been unable to find any fault with tbe conduct of tbe trial.
Tbe judgment is affirmed.
Tbe foregoing opinion prepared by Rot, C., was modified by tbe court and as modified is adopted by tbe court.