The State v. Kelleher

• Decision Date: 05 March 1907
• Parties: THE STATE v. EDWARD KELLEHER, Appellant
• Court: Missouri Supreme Court

100 S.W. 470

201 Mo. 614

THE STATE v. EDWARD KELLEHER, Appellant

Supreme Court of Missouri, Second Division

March 5, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.

Reversed and remanded.

Thos B. Harvey for appellant.

(1) Error was committed by the circuit attorney and the court in violating the provisions of section 2638, by referring to the right of the defendant to testify in the presence of the jury and while discussing the admissibility of testimony. State v. Weaver, 165 Mo. 13; State v Guinn, 174 Mo. 686; State v. Snyder, 182 Mo. 462; McKnight v. U.S., 54 U.S. Cir. Ct. App. 367; Wilson v. U.S., 149 U.S. 60; Yarbrough v. State, 70 Miss. 593; State v. Baldoser, 88 Iowa 56; State v. Graham, 62 Iowa 111; State v. Ryan, 70 Iowa 156. (2) The court should have given the instruction on the doctrine of incomplete self-defense, or one in lieu thereof. Partlow Case, 90 Mo. 608; State v. Gordon, 191 Mo. 114; State v. Gilmore, 95 Mo. 554; State v. Rapp, 142 Mo. 448; State v. Garrett, 170 Mo. 397. (3) The court should have given the instruction requested by the defendant on the subject of manslaughter resulting from hot blood, or one in lieu thereof. (4) Statements made by the deceased in Bumberry's saloon at 2214 Pine street, in regard to how he was shot, were not a part of the res gestae, and should not have been admitted. State v. Hudspeth, 150 Mo. 27; State v. Ware, 62 Mo. 597; State v. Snell, 78 Mo. 240; State v. Brown, 64 Mo. 367; State v. Evans, 65 Mo. 574; State v. Day, 100 Mo. 242. (5) The court erred in excluding as incompetent uncommunicated threats, after the evidence was conflicting as to whether the deceased or the defendant was the aggressor. State v. Spencer, 160 Mo. 123.

Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.

(1) The question of the admissibility of the testimony of the witnesses, as to what was said by the deceased in the presence of the defendant, is now of no importance, for the reason that the defendant admitted the shooting and relied upon self-defense as his justification of the murder. At the time defendant was taken in the presence of the deceased, he stood in the attitude of denying any connection with the affair, and the police were endeavoring to locate the person who did the shooting. The charge was made by deceased, at the time he was in the hospital, that he knew the man who had shot him, but did not know his name, and defendant was taken to the bedside of deceased, to ascertain if he, defendant, was the one who did the shooting. Defendant was identified, and complains because the police officers were allowed to testify to the fact that deceased identified defendant, and that defendant stood mute. If there had been a denial, upon the trial, that defendant shot deceased, he might claim that he was prejudiced by the identification, and the subsequent testimony that he was so identified, but when that theory of his defense was abandoned, the error, if error it was, was not prejudicial. (2) Defendant complains because the court would not allow him to show that the defendant was in the habit of carrying concealed weapons. Upon this proposition see State v. Griffin, 87 Mo. 613.

OPINION

BURGESS, J.

Defendant was convicted in the circuit court of the city of St. Louis of murder in the second degree, and his punishment fixed at twenty-five years' imprisonment in the penitentiary, under an indictment preferred against him by the grand jury of said city charging him with murder in the first degree, in having at said city, on the 29th day of January, 1905, shot with a pistol one Thomas Sullivan, from the effects of which said shot said Sullivan, at said city, to-wit, on the 2d day of February, 1905, died. Defendant appeals.

The shooting occurred at Walsh's saloon, at the northeast corner of Twenty-second and Pine streets in said city, between two and three o'clock in the morning. The defendant was at the time one of Walsh's bartenders, but was not then on duty. He and some of his associates, however, were standing at the bar. The deceased was a prize fighter.

The evidence on the part of the State tended to show that Sullivan, the deceased, was standing near a filter at the north end of the bar, which ran north and south; that next south of him was a friend of defendant's by the name of Sellinger, and at the extreme south end of the bar, next to a partition caused by swinging doors, near the corner entrance to the saloon, stood the defendant, Edward Kelleher, and that north of the bar stood Buck Taylor. The other persons in the saloon were the barkeeper, Gerwitz, and two or three who were standing near the west side of the room.

John Howard, a witness for the State, testified as follows:

"Sullivan and I walked into the saloon; we walked to the bar, passed Kelleher and Sellinger, and I stepped behind; Sellinger and Sullivan went back of me, near the filter; walked to the bar, and I said to the bartender, 'Give me a little booze. What do you want, Tommy?' He says, 'I want the same.' So he gave us water on the side, and I told him that I wanted soda. So he gave me the soda, and I poured out my whiskey, and drank the whiskey, like that (illustrating), reaching for my soda to drink it, and had it to my lips like that, and was standing like that at the bar (stands up and illustrates), and I saw when I turned around, after having it like that, to say, 'Here is luck,' I saw Kelleher standing there. He said to Sullivan, he says, 'You [applying a vile epithet], you are a fighter?' He says, 'This ain't no place to come looking for trouble.' And as he did why Sullivan jumped back, like that (illustrating), and Kelleher -- I don't know where he pulled the revolver from, or where he got it from -- but I saw the gleam of the revolver like that, like you would throw a piece of paper or anything through the air; but I heard a shot, and I started to run; then I heard another shot. I run out the front door."

"Q. Did you notice whether or not Kelleher had that gun in his hand at the time you turned around when you first noticed him? A. I couldn't say whether he did or not.

"Q. Did you afterwards see the gun in his hands? A. I saw the gun when he pulled it.

"Q. When he was drawing it down you saw it for the first time? A. Yes, sir. When he came up to him he came up to him like I walk up to you, saying, 'You are a fighter, you come in here looking for trouble.'

"Q. What kind of a gun was it? A. I couldn't say.

"Q. Was it nickel plated? A. No, looked like a black gun to me.

"Q. Looked like one of these blue steel guns? A. Yes, sir; looked like a black gun.

"Q. Which way did you run? A. I run out of the front door.

"Q. The door you came in? A. Yes, sir.

"Q. You came in the front door, as I understand, and passed through these doors here in the partition? A. Yes, sir.

"Q. What kind of doors? A. There is glass in them. They are swinging doors.

"Q. Swinging doors? A. Yes, sir.

"Q. What did Sullivan do? A. I couldn't say. I didn't wait to see. I ran.

"Q. Well, did you see him turn, or did he turn and run while you were there? A. I didn't wait to see.

"Q. You didn't wait to see? A. No, sir. As soon as he reached back I turned. I saw the flash of the gun and saw the flash of the shot and run.

"Q. How soon after Kelleher addressed him before these shots rang out? A. Well, I couldn't say the limitation of time.

"Q. You were there, you were a witness to it? A. Yes, sir.

"Q. You turned and saw Kelleher? A. Yes, sir.

"Q. What occurred then? Just tell how fast this thing took place. A. I don't know the exact time. All I know here you can judge for yourself, that Sullivan jumped back, and then I saw the flash of the revolver, like pulling it from your pocket, like that (illustrating), and then a shot, and I turned to run and I heard another shot, and I ran out the front door.

"Q. Do you know whether Sullivan had a gun or not? A. I couldn't say."

Two days after the shooting and while the deceased was lying in the hospital, he made an ante mortem statement, which was taken down in shorthand, transcribed, signed by the deceased and witnessed.

The ante mortem statement is as follows:

"Q. State your name? A. Thomas J. Sullivan. Q. You are known as 'St. Louis Tommy Sullivan?' A. Yes, sir. Q. You know you are dangerously injured and liable to die? A. Yes, sir. Q. How old are you, Tommy? A. Twenty-four. Q. Where were you born? A. St. Louis. Q. Where do you reside? A. 3456 Lindell boulevard. [Last two questions and answers objected to as irrelevant and immaterial and not a part of the fatal occurrence; which objection is by the court overruled; to which ruling of the court the defendant, by counsel, duly excepted then and there at the time.] Q. Now, we want a correct statement of what took place at Walsh's saloon 2131 Pine street, Sunday morning, the 29th inst., and we want the name of those who were present when the shooting occurred. What time did you go into the saloon? A. About three o'clock in the morning. Q. Who was with you? A. Johnnie Howard. Q. He went with you in the saloon? A. About three o'clock in the morning. Q. Who was with you? A. Johnnie Howard. Q. He went with you in the saloon? A. Yes, we went in together. Q. Was anybody else with you? A. No, sir. Q. Where did you meet Johnnie Howard? A. Twenty-first and Chestnut street. Q. Where did you go then? A. We went to Joe Daneri's, Twenty-second and Chestnut streets. Q. How long did you stay in Daneri's? A. About three-quarters of an hour. Q. Did you have any drinks while in there? A. Yes, sir. Q. About how many? A. Three, I believe. Q. What was it, beer or whiskey? A. Whiskey. Q. Where did you go from Daneri's? A. Over to Walsh's; Johnny says 'Let's go in and get...