State v. Martin

• Decision Date: 05 November 1894
• Citation: 28 S.W. 12,124 Mo. 514
• Parties: STATE v. MARTIN.
• Court: Missouri Supreme Court

28 S.W. 12

124 Mo. 514

STATE v. MARTIN.

Supreme Court of Missouri, Division No. 2.

November 5, 1894.

PROSECUTION FOR MURDER — INSTRUCTIONS — EVIDENCE — RES GESTAE.

1. Mere words of reproach, however grievous, unaccompanied by an assault or battery, do not constitute such provocation as to reduce a homicide from murder to manslaughter.

2. There being no evidence of a provocation caused by actual violence on the part of deceased, it was not error to refuse to submit to the jury the question of such provocation in connection with the provocation arising from deceased's application of opprobrious epithets to defendant.

3. Where it appears that deceased, in walking peaceably along, met defendant, who jostled him and passed on, and that deceased stopped and objected to such action, calling the defendant vile names, whereupon defendant immediately turned and stabbed him, it is proper, to charge that, "when a person strikes another with a deadly weapon in a manner calculated or likely to produce death, no words of reproach or epithets, however opprobrious or insulting, amount to or constitute any justification or excuse in law for the killing, if death results from such striking."

4. Where, on a criminal trial, the contradiction in the testimony of two witnesses is clear, and evidently the result of false testimony, it is proper to instruct the jury that, if they conclude that any witness has sworn willfully falsely as to any material matter, they may reject or treat as untrue the whole or any part of his testimony.

5. It is proper to instruct the jury that they must find affirmatively all the elements in either degree of the crime, beyond a reasonable doubt, before they convict of either degree.

6. On a trial for murder it is proper to instruct the jury "that he who willfully — that is, intentionally — uses upon another, at some vital part, a deadly weapon, must, in the absence of qualifying facts, be presumed to know the effect is likely to be death, which is the probable and ordinary consequence of such an act; and, if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly, and such killing is murder in the first degree; and while it devolves upon the state to prove the willfulness, deliberation, premeditation, and malice aforethought, all of which are necessary to constitute murder in the first degree, yet these need not be proved by direct evidence, but may be deduced from all the facts and circumstances attending the killing."

7. It is proper in a criminal cause to ask a witness, for the purpose of discrediting his testimony, how often he has been in the county jail on sentence for crime, and it is unnecessary in such case to produce the record of convictions.

8. A question which, considered by itself, was immaterial, but, when taken in connection with certain unproved facts, was material, was properly excluded, no offer being made to prove such facts.

9. Where defendant and L. were jointly indicted for murder, but a severance was had, and defendant tried alone, it was proper not to permit defendant to tell what L., in speaking to defendant of the murder, said he did; it being no part of the res gestae, and L. not being a party to the record.

10. Deceased was walking on the street when defendant stabbed him, and he then called for the police, and said he was "fainting," "gone," etc. He was carried to a saloon, and a witness ran for a doctor, and returned at once; and an officer, who had arrived by the time the witness had returned, asked deceased, "Who did it?" and was answered: "Two niggers; one a little yellow fellow." Held, that such statement was admissible as a part of the res gestae, and was properly admitted.

11. A party making no objection to the admission of certain testimony upon the trial cannot take advantage of the incompetency of such testimony upon appeal.

Appeal from criminal court, Jackson county; John W. Wofford, Judge.

Philip Martin was convicted of murder, and appeals. Affirmed.

At the September term, 1893, of the criminal court of Jackson county, at Kansas City, Philip Martin and Frank Lyle were jointly indicted for the murder of Eli Stillwell, by stabbing, on July 4, 1893. A severance was granted, and the defendant herein, Philip Martin, was put upon his trial, and the jury returned a verdict of murder in the first degree against him. The defendant is a young negro man. Eli Stillwell was a white man, a day laborer, and was married. He resided with his family at Seventeenth and Vine streets, Kansas City. On the 4th day of July, 1893, Stillwell had been drinking until he was perceptibly intoxicated, though not enough so to prevent his walking. About 10 o'clock on the night of that day, he met his brother-in-law, Charles Stewart, who had come from Sibley, and together they started for Stillwell's home, walking east on Eighteenth street. When they reached a point near Harrison street, they met the defendant Martin and his codefendant, Lyle, another negro man, going in the opposite direction, from a negro picnic in the neighborhood of Eighteenth and Grove streets. Stillwell and Stewart were walking together abreast, going east, and Martin and Lyle abreast, going west. The parties were wholly unacquainted with each other. The sidewalk was about 12 feet wide, affording ample opportunity for the passage of both parties; but, when Martin and Lyle came within four or five feet of the white men, they threw themselves shoulder to shoulder, and pushed themselves between Stillwell and Stewart with such force that it shoved Stewart out towards the street, and Stillwell in towards the buildings, on the inside of the walk. The two negroes passed on about 10 feet, when Stillwell, who had been staggered by the shoving, said, "Don't shove me," or "Don't push me." As if expecting some protest, the two negroes immediately halted, and turned about; and the defendant Martin commanded Stillwell "to move on," and, as Stillwell did not obey this order promptly, advanced on him, as the sequel shows, with an open knife in his hand, and, without further provocation, stabbed him with the knife, the blade of which penetrated the left breast, cutting the arch of the aorta, and inflicting a wound from which Stillwell died that night. Either Martin or Lyle then attacked Stewart also, and he ran across the street to avoid them. Stillwell immediately called for the police, and ran or walked a few feet, and fell down, exclaiming, "I'm fainting! I am gone! Catch me!" His cries attracted several persons, and he was carried into a saloon near by, and a physician sent for, who resided a block and a half away, but he declined to come, either for the reason that it was too late, or he was sick. He was at once taken into the saloon; and while yet bleeding profusely, and in not exceeding five minutes, an officer arrived, and inquired of Stillwell, "Do you know who did it?" and he answered: "Yes; two niggers; one a little yellow fellow." After stabbing Stillwell, the defendant Martin and his codefendant, Lyle, resumed their journey west, together. As they moved on, Martin, the defendant, was heard to say, "I fixed him;" and, further down the street, Martin showed Lyle the knife with which the stabbing was done. It is of the kind the negroes of that city call a "switch," and, it seems, in very general use among them. The defendant Martin was arrested next morning at his home, and the knife, with the handle and blade both still fresh with blood, was found in his house. After defendant was confined in his cell in the city prison, one of his fellow prisoners inquired if he was not sorry he did that, and he replied: "No; I am glad I killed the white son of a bitch, and if I had it to do over, would do it again." At the trial, defendant testified in his own behalf, and said that Lyle did the cutting, and that the knife belonged to Lyle, and not himself. He admitted fully and circumstantially his presence at the scene of the homicide, and that he and Lyle were together, and had the altercation with Stillwell and Stewart, but says Stillwell called Lyle "a black son of a bitch," and then Lyle stabbed him. In rebuttal, his character for morality was shown to be very bad. In other words, his reputation was that of a "tough," and he had on another occasion stabbed a man named Hurley. The court instructed the jury on murder in the first and second degrees, on the credibility of witnesses, and reasonable doubt, and the presumption of innocence, and refused to instruct on manslaughter in the fourth degree and self-defense.

Thos. N. Williams and T. R. Stockton, for appellant. R. F. Walker, Atty. Gen., Morton Jourdan and Marcy K. Brown, for the State.

GANTT, J. (after stating the facts).

1. Learned counsel for defendant assign as error the failure to instruct on manslaughter in the fourth degree. Their theory of the case is that the defendant did not do the cutting; that deceased was stabbed by Lyle, who was only guilty of manslaughter in so doing, because he was provoked thereto by the vile epithet applied to him by the deceased, and, in addition thereto, that there was evidence tending to show that Stillwell and Stewart were the aggressors. We are of opinion that there was no evidence in the case upon which to base an instruction for manslaughter. Stewart, who was present, testified that Stillwell was doing nothing when Martin stabbed him. He says Lyle was on the outer edge of the sidewalk, nearer to him (Stewart). And in this he is thoroughly corroborated by the witness Perkins, the paper hanger and painter, who says, not only that Martin stabbed Stillwell, but that "Stillwell was doing nothing." The defendant was innocent, not only of murder, but of manslaughter as well, if his testimony is to be credited. He had not jostled deceased. Deceased had applied no epithet to him. He did not return and enter into a difficulty with deceased, but stood by a mere spectator, in no manner...