State v. Silk

• Decision Date: 01 March 1898
• Court: Missouri Supreme Court
• Parties: STATE v. SILK.<SMALL><SUP>1</SUP></SMALL>

44 S.W. 764

145 Mo. 240

STATE v. SILK.¹

Supreme Court of Missouri, Division No. 2.

March 1, 1898.

HOMICIDE — INDICTMENT — SUFFICIENCY OF CHARGE — INSTRUCTIONS — EVIDENCE — DELIBERATION — WILLFULNESS.

1. An indictment for murder charging the felonious assault with a deadly weapon, to wit, a pistol, then and there loaded with gunpowder and leaden balls, and with which defendant shot at, struck, and penetrated the deceased, giving him a mortal wound, sufficiently advised defendant of the nature of the charge against him, though it would have been better with the usual allegation, "that, with the leaden balls so shot out of said pistol, the mortal wound was inflicted."

2. Where the evidence showed an intentional killing with a deadly weapon, without any lawful provocation therefor, but failed to show any circumstances of deliberation, the jury were properly instructed for murder in the second degree.

3. It was not error to instruct that "willfully means intentionally, not accidentally"; that, in the absence of qualifying facts the law presumes that a person intends the ordinary and probable result of his acts; and that if the jury believed from the evidence, beyond a reasonable doubt, that defendant, with a pistol, shot the deceased in a vital part, and killed him, they should find that defendant intended to kill him, unless the facts showed the contrary.

Sherwood, J., dissenting.

Appeal from circuit court, Randolph county; John A. Hockaday, Judge.

Elisha Silk was convicted of murder in the second degree, and appeals. Affirmed.

F. P. Wiley and A. H. Waller, for appellant. Edward C. Crow, Atty. Gen., and Sam. B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

From a conviction of murder in the second degree, the defendant appeals. The indictment was preferred at the July term, 1896, of the Randolph circuit court. The defendant was duly arraigned, and the cause was continued twice on his application. He was tried at the July term, 1897, and sentenced to the penitentiary for 20 years. These facts were substantially shown on the trial: Elisha Silk, the defendant, is a man over the age of 60 years, a resident of the city of Moberly, in this state, for more than 15 years. At the time of the commission of the offense, he was, and had been, street commissioner of the city of Moberly, and in his effort to exercise, do, and perform the duties of his office, in the way of taking up and impounding stock running at large within the city limits, he committed the act for which he was tried and convicted. Complaint had been made to the defendant, and also to the mayor of the city, that stock had been, and was, running at large in the north and northeastern portion of the city. He was instructed by the mayor to take up said stock, and place it in the city pound. On Sunday morning, June 21, 1896, the defendant, on horseback, and with his son James and one Tuggle, went to the territory where the stock was running at large, for the purpose of executing his official duty. On his way, defendant notified several persons whose horses were running out to take them in, and save cost and trouble, as complaint had been made. On reaching that part of the city where the stock was running at large, he found about 12 head of cows grazing on vacant lots within the city limits. He requested his son and the other gentleman who was with him to come to his assistance, and drive the cattle west towards Morley street. Young Hellensmith, the deceased, was at that time sitting with a number of other boys in front of a greenhouse on Morley street, and, upon seeing the defendant driving his cattle towards the city, started towards him, claiming to the defendant that he was in charge of the cows, and insisted upon his being permitted to take them outside of the city limits to graze. The defendant continued to drive the cattle towards Morley street, paying no particular attention to the boy, other than insisting upon impounding them. As he drove the cattle towards Morley street, the boy approached him from the west, and, after meeting him, turned, and walked along the side of the cattle with the defendant, at the same time trying to drive the cattle back to the east, and out of the city limits. It appears that, a few moments before the shooting took place, he ran around defendant's horse, threw up his hands, in which he held a bunch of grass, weeds, or his hat, and at the same time stating that the cattle were in his charge, and that he expected to take them outside of the city limits, when defendant's horse jumped to one side. At this juncture defendant threw his right hand into his right hip pocket, drawing his revolver, and saying to the young man, "Stand back, or I will shoot you. You have been warned of this before. Stand back;" and, as he said "Stand back" the last time, he pointed his revolver at the young man, and fired, the bullet striking and proving fatal. This statement seems to be borne out by a number of witnesses who were introduced on the part of the state. In fact, it does not seem to be denied by the defendant. The only defense set up by defendant is that the act was committed accidentally; that his only purpose in drawing the revolver was to scare the boy, so that he would not further molest him in the exercise of his official duties. There was evidence tending to prove that, after defendant had told the boy to stand back the last time, he raised his revolver, pointed it at him, and, after taking aim, fired. After defendant had fired the shot, his horse trotted off about 200 yards, when he alighted, and walked up to where the young man was, and, finding what he had done and the gravity of the act, went at once to the city hall, and placed himself in the hands of the proper authorities. The evidence in the case is that the defendant is a man of good reputation as a law-abiding citizen. The gravity of the case requires an examination and consideration of each ground assigned for a reversal of the sentence.

1. The sufficiency of the indictment is questioned, because it does not allege that the leaden balls struck and penetrated the body of the deceased. The indictment charges that ...