22 S.W. 699 (Mo. 1893), The State v. Duncan

Citation:22 S.W. 699, 116 Mo. 288
Opinion Judge:Sherwood, J.
Party Name:The State v. Duncan, Appellant
Attorney:W. Farmer and G. W. Royse for appellant. R. F. Walker, attorney general, and C. O. Bishop, assistant circuit attorney, for the state.
Case Date:May 30, 1893
Court:Supreme Court of Missouri

Page 699

22 S.W. 699 (Mo. 1893)

116 Mo. 288

The State


Duncan, Appellant

Supreme Court of Missouri, Second Division

May 30, 1893

Page 700

[Copyrighted Material Omitted]

Page 701

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Page 702

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

On change of venue to the circuit court of St. Louis county, the defendant, a negro, was convicted of having murdered James Brady, a policeman, in the city of St. Louis, by shooting him with a revolver. In conformity with the verdict the defendant was sentenced, judgment accordingly and he appeals to this court.

The homicide occurred October 6, 1890, in a saloon at 715 North 11th street, kept by Charles Stark, a negro, and mostly frequented by that race. On the evening in question about 8.30 o'clock, a large crowd, principally negroes, was assembled on the sidewalk in front of the saloon and by doing so obstructed the passage not only of the sidewalk, but also of the street up to the car-track. The crowd was gathered together, it seems, to witness a sparring going on between Luther Duncan, a brother of defendant, who kept a barber shop next to the saloon, and Bob Henderson another negro barber. Complaint being made to Policeman Gafney who patrolled that beat, of the obstruction thus caused, he hastened to the spot. He was in full uniform and well known to all the parties there. On his arrival, he pushed his way through the crowd and found the two negroes sparring, and the defendant standing beside them. As was his duty, he ordered the crowd to disperse and told the sparrers to desist; to move on and open a way on the side-walk for passers by. Speaking to Luther Duncan, who worked in a barber shop close to the saloon, Gafney said: "You know this will not do; go up there where you work, and get the crowd up." In response to this request, Duncan put up his fists and shoved against the officer, who repeated his request, and said "If you don't go away I will have to take you away." Thereupon Luther Duncan replied: "You can go to hell; you can't take me away." When this remark was made, the crowd began closing in upon the speakers, and Gafney laid his hand on Luther's arm when defendant struck Gafney a violent blow in the face and eye. Then the Duncan brothers assisted by others set upon the officer, he was hustled through the crowd out into the street, receiving numerous kicks and blows, one of them in the stomach, a very painful blow, and finally his baton was wrested from him, and with this the Duncan brothers beat him over the head and left him lying unconscious on the street. During this fierce assault there were cries in the crowd of "Let's kill the son of a bitch while we are at it."

Recovering consciousness, Gafney rose to his feet and drawing his revolver fired twice in the air in order to attract the attention and secure the help of other officers in the vicinity. Just then Luther Duncan threw something at the officer and fled into Stark's saloon; Gafney followed him, but being weak from the treatment he had received, he was unable to open the door; but finally someone opened the door for him and he entered the saloon. Passing through the saloon he saw Luther in the billiard hall, which was a platform in the rear or west end of the room, some six or eight feet higher than the bar-room floor, and reached by two short stairways on each side of the saloon, one on the north and the other on the south. Gafney with revolver presented, went up the north stairway where Luther was standing, and approaching him said: "I want you." Upon this, Luther started to go with the officer, but when they had nearly reached the north stairway for the purpose of descending, a cry was raised of "Don't shoot," and Gafney turning his head at the sound, received (from the defendant) a violent blow on the head. This blow was given with such force that it knocked Officer Gafney's hat off and sent him reeling and bleeding, with a great gash cut, over his eye and on his head, down the north stairway. Luther then disappeared.

On striking this blow, the defendant, who had not been seen by Gafney, sprang forward and wrenching the revolver out of Gafney's hand, went across the platform and started, pistol in hand, to descend the south stairway. At this juncture, attracted by the shots fired on the outside by Gafney, police officers Maloney and Conners, hastening from the adjoining beat, entered the saloon. As they did so, they saw Gafney staggering down the north stairway, his hat off and the blood streaming down his forehead and face, and he exclaimed to them that he was nearly killed. Just then, Starks, the proprietor of the saloon, who was immediately behind the defendant, pointed him out, and cried: "Here is the man who did it." Maloney who was in advance of Conners and moving across the center of the saloon, called out to defendant: "Throw up your hands, you are my prisoner." Defendant threw up the hand in which he held the pistol and retorting: "Yes, God damn you," fired two shots at Maloney and one at Conners, who was endeavoring to cut off defendant from darting behind the counter, which was on the south side of the saloon. When Maloney called on defendant to throw up his hands, neither he nor Conners had drawn their pistols. As defendant began firing at him, Maloney dropped to the floor, and then both he and Conners drew their pistols and began returning defendant's fire, who then managed to run behind the counter and crouch under it. Both officers then went up to the counter and endeavored to cover the defendant with their weapons. The defendant occasionally sprang up from behind the counter and shot at the officers and they returned his fire and defendant instantly crouched again behind the counter.

About this time, officer Brady, of that beat, in full uniform, came into the saloon to assist in arresting defendant. He approached the counter, and as he did so and was alongside the other officers, defendant jumped up and fired at them, then Brady hallooed to defendant to "surrender." Defendant not doing this, Brady leaned over the counter and fired one shot at defendant, who was crouching behind it with nothing but his legs and feet exposed. Defendant thereupon sprang up, suddenly, shot Brady, who fell over dead, and at the same time Maloney and Conners fired at defendant and slightly wounded him in the side, and he immediately dropped again behind the counter. The attention of the officers was then engaged in looking after their dead companion. Pretty soon Conners discovered the defendant slipping around the west end of the counter having a pistol in his hand, and covering him at once with his own revolver, said: "You make a move with that gun and I will kill you." Defendant replied: "Stop where you are." Conners said: "If you raise that gun I will kill you." Defendant then said: "I've killed one; I'm satisfied," and threw his pistol behind the counter and Conners then secured him and he was taken to the police station.

The next morning defendant was taken to the office of the police captain at the station; when asked by the captain, "What have you got to say about this trouble last night?" in answer stated: "I was in the saloon, and Gafney was chasing my brother into the saloon; just as they reached the head of the steps of the billiard hall I knocked Gafney down with the billiard cue; Gafney had his gun in his hands; I took his gun away from him; I started to go out of the saloon; as I went down the steps, some other officers came in with guns in their hands; I shot at them and ran behind the counter; they were shooting at me, and then Brady came in; he leaned over the bar and was trying to shoot me, when I raised up from behind the bar and shot Brady; I shot him with the gun I took away from Gafney; I had no other gun." These admissions or confessions were testified to by several police officers.

When defendant was taken from St. Louis to Clayton for trial, several small steel saws were found concealed in one of his slippers, wrapped in a cloth, and these were shown to the jury. This was the substance of the evidence offered on behalf of the prosecution.

On behalf of the defendant, the testimony was to this effect: The crowd in front of Stark's was attracted by a talking parrot. The trouble between Luther Duncan and Henderson was slight, and was all over when Gafney came. Neither of the Duncan boys was doing anything at the time, but Gafney assaulted them first. Defendant defended himself with his fist, and then both went into the saloon. Gafney followed them in a little afterward, with a pistol in hand, and, pointing it at defendant, said: "You black son-of-a-bitch, I'll blow your head off!" Defendant, to save himself, knocked the officer down with a billiard cue, took the pistol from him, and started to leave the saloon. Maloney and Conners came in, with revolvers in hand, and opened fire upon defendant at once and without a word. He fired at each of them once, and exhausted the chambers. He threw up his hands in token of surrender, but the officers continued shooting at him. He ran behind the counter and crawled under it, and while there was shot twice by the officers, leaning over. He remained crouched there until the shooting was all over, when Stark called to him to come out and surrender...

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