State v. Philpott

• Decision Date: 09 May 1912
• Citation: 146 S.W. 1160
• Parties: STATE v. PHILPOTT.
• Court: Missouri Supreme Court

146 S.W. 1160

STATE v. PHILPOTT.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

1. WITNESSES (§ 337)—IMPEACHMENT—REPUTATION OF ACCUSED.

Where a defendant in a criminal case testifies in his own behalf, the state may attack his credibility by showing that his reputation for morality in the community where he lives is bad; such inquiry not being limited to his reputation for truth and veracity.

2. CRIMINAL LAW (§ 1175) — REVIEW—VERDICT —SUFFICIENCY—CORRECTION.

A verdict finding accused guilty of murder in the second degree and assessing his punishment at "10 years in the penitentiary" was sufficient to support a judgment of conviction, and hence its correction by the court with the assent of the jury so as to assess punishment "by imprisonment in the penitentiary for the term of 10 years" was not reversible error, being an immaterial change.

3. HOMICIDE (§ 152)—MURDER—EVIDENCE— SUFFICIENCY.

Proof that accused killed deceased by stabbing raised the presumption that he was guilty of murder in the second degree, in the absence of other evidence.

4. HOMICIDE (§ 309)—TRIAL—INSTRUCTIONS —FOURTH DEGREE MANSLAUGHTER.

That deceased struck accused on the head with an iron lid lifter, and was continuing to strike him when accused killed deceased, constitutes sufficient provocation for the killing in the heat of passion to reduce the crime to manslaughter in the fourth degree, and hence, where accused testified to this effect, an instruction on manslaughter in the fourth degree should have been given.

5. CRIMINAL LAW (§ 1137) — APPEAL—REVIEW —INVITED ERROR.

Where accused objected at the close of the evidence to any instructions on any degree of homicide less than that charged, he cannot complain of the failure of the court to give an instruction on fourth degree manslaughter, although he moved for a new trial on the ground of such failure, in view of Rev. St. 1909, § 5115, forbidding reversal of judgments in criminal cases for error committed at the instance or in favor of the defendant.

Appeal from Circuit Court, Livingston County; A. B. Davis, Judge.

William Philpott was convicted of murder in the second degree, and he appeals. Affirmed.

Scott Miller, for appellant. The Attorney General and John M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, J.

This is an appeal from the circuit court of Livingston county. Appellant, William Philpott, at the January term, 1910, of said circuit court was convicted of murder in the second degree for having killed John Shellhorn by stabbing him in the neck with a butcher knife. The jury assessed his punishment at imprisonment in the penitentiary for a term of 10 years, and from the sentence pronounced and judgment entered he appealed to this court.

The state introduced evidence tending to show the following facts: The defendant, a man 64 years of age at the time of the homicide, lived in the town of Dawn in Livingston county, where he was engaged in the business of running a meatmarket. The deceased, who was 35 years of age, worked for a man named Lionberger who had a restaurant in Dawn. Deceased was a much larger and stronger man than the defendant. On the 25th of December, 1909, during the forenoon, defendant and deceased, while in Lionberger's restaurant, had a quarrel about a bottle of whisky. Defendant left the restaurant and went to his meatshop. Between 11 and 12 o'clock that morning deceased went to defendant's meatshop to buy a soupbone. A quarrel ensued over the price. Two witnesses were present during a part of the quarrel, but, according to their testimony, neither of them was an eyewitness to the homicide. They both testified, however, that the deceased was intoxicated when they saw him at defendant's place of business. One of them testified that defendant asked him to take deceased out of his shop. The witness endeavored to persuade deceased to leave the shop with him, but deceased refused to go. About 12 o'clock, and after both witnesses had left the shop, defendant went to the post office and also to a store and requested several men to go to his shop and see about Shellhorn, telling them that he thought he had killed him. Two men went to defendant's shop and found Shellhorn lying on the floor dead. He had been killed by a knife stab that severed the jugular vein. The witness who was last to leave the defendant's shop while the two men were quarreling gave a very meagre and unsatisfactory account of what he observed. He testified that while the men were quarreling he started to leave. When he reached the door, and while his back was to them, he heard a noise as if they were scuffling, and, looking back, saw them facing each other, and saw blood on the floor. He went out of the room, walked down the street, and said nothing about what he had seen until after the defendant had appeared on the street and requested the men he met to go to his shop and see about Shellhorn.

The defendant testified in his own behalf. He gave the following version of the killing: After the quarrel in the early forenoon deceased came to his shop to buy a soupbone. He cut and wrapped up the bone and told deceased the price of it was 25 cents. Deceased, with an oath, exclaimed that the price was too high, became very much enraged, and refused to receive his purchase. He repeatedly cursed the defendant, using numerous vile epithets. Defendant ordered him out of the shop, and requested a witness who was present to take him out, but deceased refused to leave. Defendant, with a butcher knife in his hand, went to a table on which there was a hind quarter of beef and began to cut out a kidney. While he was so engaged, deceased assaulted him by striking him on the back of the head with an iron stovelid lifter. He ran to the rear door of his shop and attempted to escape. Deceased followed him and continued striking him with the lid lifter when he threw up his hand in which he held the knife, in an attempt to ward off the blows of deceased, and in so doing struck deceased with the knife and inflicted the fatal wound.

The state, in rebuttal, offered testimony tending to show that the defendant bore a bad reputation for morality in the community in which he lived. The cross-examination of the state's witness in rebuttal developed the fact that the deceased also had a bad reputation for morality.

The court submitted the case to the jury under instructions which authorized a conviction of murder in the first or second degree, or an acquittal on the ground of self-defense or on the theory of an accidental killing. The jury returned into court the following verdict: "We, the jury, find the defendant guilty as charged in the indictment of murder in the second degree, and assess his punishment at 10 years in the penitentiary." When the verdict was read, the court, with the consent of the jury, corrected the form of the verdict so that it read as follows: "We, the jury, find the defendant guilty as charged in the indictment of murder in the second degree, and assess his punishment by...