State v. Henson

• Citation: 16 S.W. 285,106 Mo. 66
• Parties: STATE v. HENSON.
• Decision Date: 19 May 1891
• Court: United States State Supreme Court of Missouri

16 S.W. 285

106 Mo. 66

STATE v. HENSON.

Supreme Court of Missouri, Division No. 2.

May 19, 1891.

MURDER — INSTRUCTIONS.

The accused was indicted for the murder of his wife. Their son testified that they were "fussing," and the accused twice put a pistol to his wife's head, threatening to blow her brains out if she did not shut up. Each time the witness induced the accused to put the pistol up. The accused again spoke to his wife, and a reply was given, when the accused held the pistol to her head and discharged it. The accused testified that there was no quarrel; that, after the boy had gone out, he took the pistol from a bureau to carry it up stairs; and that he grabbed his wife around the shoulders, and said, "Let's go to bed," when the pistol went off by accident. Held, that the trial court did not err in failing to charge the jury in regard to any lower degree of homicide than murder in the first degree.

Appeal from St. Louis criminal court; J. C. NORMILE, Judge.

Dodge & Mulvahill and L. A. McGinnis, for appellant. The Attorney General and Ashley C. Clover, for the State.

THOMAS, J.

The defendant shot and killed his wife at No. 405 South Second street, in the city of St. Louis, on the 4th day of February, 1889. In January, 1890, he was tried for this homicide in the criminal court of that city, and was found guilty of murder in the first degree, and sentenced to death. The case is now here by appeal. The instructions of the court confined the jury to a conviction of murder of the first degree, and an acquittal on the ground that the homicide was accidental. Defendant contends that the court ought to have authorized, by its instructions, a conviction of murder of the second degree, and manslaughter of the fourth degree, and this contention raises the only question for our determination. The instructions given, it is true, are criticized somewhat, but, after a careful examination of them, we find they are couched in language that has been often approved by this court on the subject of murder in the first degree. Did the court commit error in failing to instruct the jury in regard to a lower grade of homicide than murder of the first degree? It is now the settled law in this state that it is the duty of the court to instruct the jury "upon all questions of law arising in the case," whether asked to do so or not. State v. Palmer, 88 Mo. 568; State v. Barham, 82 Mo. 67. Let us see if the evidence justified the contention that instructions for a lower grade of homicide ought to have been given. The defendant and his stepson Gus Kreitling were the only eye-witnesses of the tragedy. The latter, who was a son of deceased, testifies that defendant and deceased were "fussing" about one of the boarders, deceased saying that it was none of his business; whereupon defendant retorted, "Shut up." Then defendant drew the revolver from his pocket, and held it to her temple; whereupon witness ran between them, and induced him to put the pistol away. The defendant again said to deceased if she did not shut up he would blow her brains out. The defendant again drew the pistol, and held it to her head, whereupon witness again induced him to put it up. Defendant again spoke to deceased, and a reply was made, when the defendant held the pistol to her head, and discharged it, deceased falling to the floor. Witness saw defendant fire the pistol at her head. On cross-examination, witness says he came home about 9:15, and found defendant and deceased "fussing," which continued up to the time she was shot, deceased saying to defendant: "You would not shoot a fly." "Question. Was that all she said? Answer. Well, she said a few words more; I don't remember them." Defendant testified that deceased, he, and others were celebrating her birthday. About 9:15 the boy Kreitling came in. About 10 P. M. defendant went to the front door, and heard two girls screaming, and ran up Spruce street. He told Taylor, a boarder, he had better leave those girls alone, and if he could not quit using that language he could get another house. Taylor then left. Deceased then said to defendant, "What is the reason Taylor left?" Defendant replied: "I told him not to interfere with those girls; `I do not want the police around my house:' and to mind his own business." The boy Gus Kreitling went out. Then defendant went in the little room, and got the keys and revolver from a bureau, and said: "Ida, let's go to bed." At that time defendant had in his right hand the pistol and two keys. He grabbed her around the shoulder, and said, "Let's go to bed." When the pistol went off she dropped down. He knelt, and called her, "Ida, are you dead?" The boy then came in from the front, and then ran out again. The second shot he did not remember. (The pistol would go off at half or full cock, as was demonstrated to the jury by counsel.) Defendant stated to Officer Mueller that it happened in fun; always got on well with his wife, and never threatened to...