State v. Kelleher

Decision Date14 December 1909
Citation123 S.W. 551
PartiesSTATE v. KELLEHER.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Danl. D. Fisher, Judge.

Edward Kelleher was convicted of murder in the second degree and he appeals. Reversed and remanded.

See, also, 201 Mo. 614, 100 S. W. 470.

This cause is now pending before this court upon appeal by the defendant from a judgment of conviction of murder in the second degree in the circuit court of the city of St. Louis, Mo. In what was known as Walsh's saloon, located at the northeast corner of Pine and Twenty-Second streets, in the city of St. Louis, between 2 and 3 o'clock Sunday morning, January 29, 1905, defendant, Edward Kelleher, with a pistol, shot and killed Thomas Sullivan, a prize fighter by profession, and known as "St. Louis Tommy Sullivan" in prize-fighting circles. The defendant was charged by indictment with murder in the first degree, for the killing of said Sullivan. The sufficiency of the indictment is not challenged, hence there is no necessity for reproducing it. This is the second appeal of this cause. See State v. Kelleher, 201 Mo. 614, 100 S. W. 470.

The evidence on the part of the state at the second trial tended to show that Herman Sellinger, Mike Morissey, William Taylor, and the defendant, Edward Kelleher, were all standing at the bar in said Walsh's saloon drinking, when Sullivan and the witness, John Howard (now deceased), came into the saloon, and Howard ordered the drinks for himself and deceased, Sullivan; that the defendant was standing near a water cooler at the north end of the bar, which ran north and south in said saloon; the next south of him was a friend of defendant by the name of Sellinger, and at the extreme south end of the bar, next to the partition or swinging door, near the front entrance of said saloon, stood the defendant, Edward Kelleher, and near the bar stood the witness, William Taylor. A man by the name of Gerwitz was the barkeeper. There were only two shots fired, and those by defendant. One bullet went wild and hit the bar, and the other one entered the body of deceased in the right side, just below the ninth rib, in what is know as the axillary line, and ranged forward to the left and downward and came out about one inch to the left side and one-half inch above the umbilicus. Deceased went from said Walsh's saloon to Bumberry's saloon near by, and after remaining there for a few minutes was taken to the city hospital, where an operation was performed on him early that day. Deceased died on the following Friday morning, February 3d, of sceptic peritonitis, due to the pistol shot wound in the abdomen, as above described.

To fully appreciate the nature and character of the testimony it is well to give a brief statement of the testimony of the witnesses as to the main facts developed at the trial of this cause. We have examined in detail the record disclosing the evidence, and by verification find that the learned counsel for appellant, in his brief abstract of the evidence of the various witnesses, substantially states the leading features of the testimony of such witnesses as disclosed by the record.

John Howard was a witness in this cause upon the former trial, and the testimony of Howard was preserved for the purpose of review upon the former appeal. This witness, at the time of the second trial, was dead, and his testimony, which was preserved in the bill of exceptions, was presented to the jury. The main features of his testimony were as follows: "I am a bartender in my father's saloon at 1900 Chestnut street. I knew the deceased for several years and we were friendly and intimate for about a year before his death. I also knew the defendant to speak to him for a long time. I met the deceased about 1:30 a. m., on the night of the shooting at Manly's saloon, Twenty-First and Chestnut streets. We had two or three drinks of whisky there and after about 30 minutes we went to Walsh's saloon at Twenty-Second and Pine streets. I saw Edward Kelleher, Herman Sellinger, and William Taylor standing at the bar in the order named, the defendant standing near the south end of the bar which was on the east side of the room and ran north and south. I don't recall to have seen Mike Morissey in there. I saw two or three other persons standing near the music box which was against the west wall and about opposite the middle of the bar. I recognized one of them as a man whom I knew by sight as McTaff or McTague. Deceased and I walked up to the bar and took a position between Sellinger and Taylor, Sellinger being to my right, Kelleher next to him, the deceased to my left and Taylor behind him. I ordered drinks for deceased and myself, and, just as we had about taken them, Kelleher applied an epithet to deceased, and said, `You are a fighter; this ain't no place to come looking for trouble.' Then deceased jumped back `like that' (illustrating), and then I saw the gleam of a revolver and heard a shot and I started to run, and as I ran toward the front door I heard another shot. I could not say when Kelleher pulled the gun or where from. When I first turned upon hearing him speak to deceased, I did not see it. I did not wait to see what Sullivan did. As soon as he reached back I turned. I saw the flash of the gun and saw the flash of the shot and run. I next saw the deceased at the hospital that morning, when he said to me, `I am a croppy; I am a dead one.' I don't know whether deceased said anything to Kelleher before Kelleher addressed him or not; I did not hear him if he did. I could not say whether they had any altercation or not. I don't know." Cross-examination: "Deceased was a prize fighter and roomed at my father's at 1914 Chestnut street. I lived with `my girl,' Maude Brooks, at 2024 Pine street. I generally drink about 25 or 30 whiskys a day and 40 or 50 beers. The night of the shooting I had drunk 10 or 12 whiskys and 14 or 15 bottles of Budweiser. Defendant was a barkeeper at Walsh's saloon at Twenty-Second and Pine streets, and deceased was accustomed to staying a good deal in the neighborhood at Kehoe's saloon, between Twenty-Second and Twenty-Third on Pine street. As we went in Walsh's saloon I spoke to Sellinger, but I did not hear deceased speak to anybody. After we took our places against the bar I did not look at any of the parties while waiting for and while drinking our drinks. I don't know whether Taylor was in the room when the shooting occurred, and I did not take any notice of what the deceased was doing, nor at whom he may have been looking. I do not know of any previous trouble between Kelleher and deceased, and I did not know what Kelleher referred to when he said to deceased, `This is no place to come to look for trouble.' I don't know whether I stated at the inquest that Kelleher applied an epithet to the deceased. Kelleher had no gun in his hand when he spoke to deceased, nor until deceased jumped back from the bar and threw his hand back. If he had any in his hand I certainly would have seen it. After Kelleher addressed the deceased he jumped back and faced Kelleher and threw his hands back (illustrating by taking a position); I can't say what he was reaching for. I was arrested during the night and I then, and several times afterwards, denied positively to the police that I knew anything about the shooting."

William Taylor, a witness introduced by the state, in substance testified as follows: "I am known as `Buck' Taylor; for the past two years I have been in the penitentiary at Jefferson City serving a seven-year sentence for perjury. I was brought down here by a guard to testify, and after testifying I expect to be taken back for further imprisonment under said sentence. I was with Kelleher, Morissey and Sellinger the night of the shooting and we were in Walsh's saloon about a half hour before it occurred. Howard and the deceased came in only a few minutes before the shooting. After one or two drinks deceased turned toward Morissey and asked for the light of a cigarette, and that is when Kelleher shot him. Deceased was not facing Kelleher, but was facing Morissey when he was shot. Kelleher did not say anything. Deceased ran past me and out of the door on Twenty-Second street and...

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4 cases
  • the State v. Kelleher
    • United States
    • Missouri Supreme Court
    • 14 de dezembro de 1909
  • State v. Constitino
    • United States
    • Missouri Supreme Court
    • 6 de janeiro de 1916
    ...unarmed at the time of the stabbing. Under the rule announced in State v. Parker, 172 Mo. 191, loc. cit. 202, 72 S. W. 650, and State v. Kelleher, 224 Mo. 145, loc. cit. 167 et seq., 123 S. W. 551, 19 Ann. Cas. 1270, we are of the opinion that the unarmed condition of deceased was a circums......
  • Goo v. Fat
    • United States
    • Hawaii Supreme Court
    • 17 de março de 1941
    ...Roberson v. Woodfork, 155 Ky. 206; Perkins v. Stevens, 24 Pick. 277, 278 [Mass.]; Yarborough v. The State, 41 Ala. 405;State v. Kelleher, 224 Mo. 145, 123 S. W. 551.) A majority, if not all, of the decisions which adhere to the theory of disqualification come from jurisdictions expressly pr......
  • State v. Kunkel
    • United States
    • Missouri Supreme Court
    • 19 de novembro de 1926
    ...v. Vansant, 80 Mo. loc. cit. 76, 77; State v. Parker, 172 Mo. 191, 72 S. W. 650; State v. Kelleher, 224 Mo. loc. cit. 167, 168, 123 S. W. 551, 19 Ann. Cas. 1270; State v. Wilks, 278, Mo. loc. cit. 488 and following, 213 S. W. loc. cit. 120; State v. Kyle (Mo. Sup.) 225 S. W. loc. cit. 1016,......

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