State v. Crabtree

Citation20 S.W. 7,111 Mo. 136
PartiesThe State v. Crabtee, Appellant
Decision Date01 July 1892
CourtUnited States State Supreme Court of Missouri

Appeal from Gasconade Circuit Court. -- Hon. R. Hirzel, Judge.

Reversed and remanded.

Thos B. Crews for appellant.

(1) "General threats are competent when clearly connected by independent evidence with some subsequent criminal action." State v. Grant, 79 Mo. 137. But not otherwise. Wharton on Criminal Evidence, sec. 756; Redd v. State, 68 Ala. 492. (2) It was not shown, and does not appear from the statement itself, that the dying declaration testified to by witness, Conrad Meyers, was made in extremis, and, furthermore, it contains an expression of the declarant's opinion of vital consequence. Such declarations are to be limited and restricted to the identification of the prisoner and deceased and to the act of killing, and all circumstances immediately attending said act and forming part of the res gestae. State v Chambers, 87 Mo. 406; State v. Vansant, 80 Mo 67; State v. Draper, 65 Mo. 335; State v. Parker, 96 Mo. 382; State v. Elkins, 101 Mo. 344. (3) There was abundant evidence of a direct and unprovoked attack on accused by deceased and of the use of personal violence by him in the inception of the conflict. The whole evidence shows lack of determination to kill, and the court should have instructed the jury as to the law of manslaughter, although not asked by the defense at the time. State v. Branstetter, 65 Mo. 149; State v. Cooper, 45 Mo. 65; State v. Sloan, 47 Mo. 604. There was evidence of a legal provocation; a vigorous personal assault upon the accused, testified to by accused and two other witnesses, and the scars made by the deceased's club were exhibited to the jury, and under such circumstances "the inference of malice is overcome," and if death results from the use of a deadly weapon the crime is manslaughter and not murder. State v. Holme, 54 Mo. 165; State v. Starr, 38 Mo. 277; 3 Greenleaf's Evidence, 122, et seq,; State v. Ware, 62 Mo. 597; State v. Jones, 61 Mo. 232; State v. Bryant, 55 Mo. 75; State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592; State v. Tate, 12 Mo.App. 327; State v. Ellis, 74 Mo. 207.

John M. Wood, Attorney General, and C. O. Bishop for the State.

(1) There was no middle ground in the case; it was either murder or justifiable homicide; and it does not follow that, because the evidence warranted an instruction on justifiable homicide, there should necessarily have been given instructions on some lower degree of homicide, even on murder of the second degree. State v. Starr, 38 Mo. 270; State v. Kilgore, 70 Mo. 546; State v. Johnson, 76 Mo. 121; State v. Jones, 79 Mo. 441; State v. Ramsey, 82 Mo. 133; State v. Anderson, 86 Mo. 309; State v. Wilson, 86 Mo. 520; State v. Anderson, 89 Mo. 312; State v. Rider, 95 Mo. 475. (2) The trial court committed no error in admitting as a dying declaration the statement of the deceased as to the circumstances of the shooting -- the statement being made within a half hour after the shooting, and when declarant believed he was about to die from the wound. It appears from the record that the trial court was exceedingly cautious in the admission of this evidence. When profert of it was made, the jury was excluded from the courtroom, and the witness who was to testify as to the statement was closely examined by counsel on both sides, and by the court.

OPINION

Thomas, J.

The defendant appeals from a sentence to imprisonment in the penitentiary for forty-five years by the circuit court of Gasconade county for murder of the second degree.

The evidence on the part of the state tended to prove that defendant had been an employe of the St. Louis & San Francisco Railway Company, but at the time of the homicide had quit that service; that Louis H. Wilmers, the deceased, was a police officer of the city of St. Louis, and being dressed in the uniform of such officer approached defendant on the evening of August 25, 1890, at a saloon on the corner of Chouteau avenue and Manchester road in that city, and told him he had been informed he had a pistol, and if he had, it was his duty to arrest him; defendant denied having a pistol; the officer then felt of his person and defendant shoved him off, causing the officer to stagger; defendant ran across the street and down to the railroad yards, and was followed a short distance by the officer who returned, however, in a short time to the saloon; in about twenty minutes afterwards the officer went to the railroad yards and the defendant met him, pistol in hand, and said, "I have got you now and I will give it to you;" the officer closed in on him and the defendant shot him in the back, and then stood over him for a second and said, "I will blow your head off, God damn you," and ran away, and the officer shot at him as he ran. The defendant left on a freight train that night, and was arrested a day or two afterwards in Dent county, Missouri. To the officer having him in custody he stated he was drunk when he shot, and that the officer struck him several times with his club. It does not appear that the officer made any attempt to arrest defendant at the time of the difficulty, and up to that evening they had been acquaintances and on friendly terms. The officer survived some time, but finally died of the wound inflicted on this occasion by defendant. What occurred between the parties at the time of the shooting was proven on the part of the state mainly by the dying...

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