State v. Sebastian

Decision Date15 December 1908
PartiesSTATE v. SEBASTIAN.
CourtMissouri Supreme Court

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

John Sebastian was convicted of murder in the second degree, and he appeals. Affirmed.

This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of Monroe county, Mo., convicting him of murder in the second degree. On the 14th day of December, 1906, the grand jury of Monroe county returned an indictment against the defendant charging him with murder in the first degree, which indictment, omitting formal parts, was in the following form:

"The grand jurors for the state of Missouri, summoned from the body of Monroe county, being duly impaneled, charged and sworn to inquire within and for the body of said Monroe county, and true presentment make upon their oaths, present and charge that John Sebastian, at and in the county of Monroe and state of Missouri, on the twenty-fourth day of October, in the year of our Lord one thousand nine hundred and six, in and upon one Benjamin Sager, in the peace of the state, then and there being, feloniously, wilfully, deliberately, premeditatedly and on purpose and of his malice aforethought, did make an assault, and that the said John Sebastian, a certain revolving pistol, then and there charged with gunpowder and leaden balls, which said revolving pistol, he, the said John Sebastian, in his right hand then and there had and held, against, at and upon him the said Benjamin Sager, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did discharge and shoot off, to, against, at and upon him the said Benjamin Sager; and that the said John Sebastian, with the leaden balls aforesaid, out of the revolving pistol aforesaid, then and there by the force of the gunpowder aforesaid by the said John Sebastian discharged and shot off as aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did strike, penetrate and wound him, the said Benjamin Sager, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, giving to him, the said Benjamin Sager, in and upon the left side a little under the second rib, of him the said Benjamin Sager, one mortal wound, of the depth of six inches and of the breadth of one-half inch, of which said mortal wound he, the said Benjamin Sager, then and there instantly did die.

"And so the grand jurors aforesaid, upon their oath aforesaid, do say, that the said John Sebastian, him, the said Benjamin Sager, then and there, in the manner and form and by the means aforesaid, at the county aforesaid, on the day aforesaid, feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state."

To this indictment the defendant waived a formal arraignment and entered his plea of not guilty, and on the 4th day of January, 1907, the trial of this cause was begun. The testimony introduced on the part of the state at the trial tended to prove that the defendant and deceased were both farmers, residing five or six miles northwest of Paris on adjoining farms in Monroe county. The deceased had a cornfield rented from defendant on shares, and there seemed to have been some dispute between them about the division of the corn. Most of the corn had been cut on October 24, 1906, when Frank and Claude Sager, both sons of the deceased, taking with them a two-horse wagon, went to the field in question and began gathering corn, which the deceased claimed. This was about 8:30 a. m. In about 20 minutes the defendant and Bradley Overfelt, who was working for him, came into the field and began working on a fence, some 30 or 35 rods from the Sager boys. In a little while the defendant came over to where the boys were at work. When he discovered that they had three or four bushels of corn in the wagon, he said, "Say, boys, do you know you are gathering my corn?" After Claude Sager replied that they were not, the defendant said, "Well, you are," and got up into the wagon and began throwing the corn out. Claude Sager also got into the wagon and tried to keep the defendant from pitching the corn out. Claude Sager took out one of the false standards in the wagon, and the defendant took the other. Claude got down, and defendant threw the corn out of the wagon, and got down on the ground also. The defendant started up to Claude and said, "Say, young man, I just as soon knock your brains out and bury you right here as do anything else," and knocked Claude's hat off with said standard. The defendant further said: "God damn you, you are not the one I wanted to see; that is your daddy, go and get him." Immediately Claude Sager left for his home, but soon returned in company with his father. In the meantime, the defendant talked to Frank Sager about the corn. Frank declined to engage in any conversation with him, but asked him to go over where Bradley Overfelt was fixing the fence. Finally the defendant left and went off to work, but returned to the wagon shortly after the deceased and Claude Sager arrived there. As soon as the deceased arrived at the wagon, he and his two boys began throwing into the wagon the corn that defendant had thrown out of it. The defendant came up and said to the deceased, "Say, Ben, do you know you are gathering my corn?" and the deceased replied that he was not. The defendant said, "Well, you are, and I am going to have it." Immediately the defendant pulled his pistol from his pocket and fired one shot. There were two corn knives in the hind end of the wagon which the Sagers had been using the day before. Deceased grabbed one of them, and, as he turned towards the defendant, the defendant fired the second shot at deceased. This shot took effect in the deceased, and he fell to the ground. Claude Sager, taking the other corn knife, started around the corn pile toward where the...

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    ...114; State v. Gillmore, 95 Mo. 554; State v. Vaughan, 141 Mo. 514; State v. Parker, 106 Mo. 217; State v. Partlow, 90 Mo. 608; State v. Sebastian, 215 Mo. 58; State v. Cable, 117 Mo. 380. (b) Perfect self-defense was fully covered by Instruction 8 given by the court, which has received the ......
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