The State v. Weakley

Decision Date09 December 1903
Citation77 S.W. 525,178 Mo. 413
PartiesTHE STATE v. WEAKLEY, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.

Reversed and remanded.

Jno. A Gernez for appellant.

(1) A homicide committed without malice and in hot blood engendered by adequate provocation, though with lethal instruments, and intentionally, is but manslaughter in the fourth degree. State v. Reed, 154 Mo. 130; 2 Bish. New Crim. Law sec. 699; 1 McClain Crim. Law, sec. 336; Wharton on Homicide, secs. 430, 431; 2 Roscoe's Crim. Evid. (8 Ed.), 966; State v. Hill, 4 Dev. & B. (N. C.) 491; State v. McDowell, 32 Vt. 541; 1 East P. C. 233, 234, 235; 4 Black. Com. 191; 2 Bish. Crim. Law, secs. 695, 697, 699, 701; State v. Bowles, 146 Mo. 15; State v. Garrison, 147 Mo. 556; State v. McKenzie, 102 Mo. 632; State v. Edwards, 70 Mo. 480; State v. Watson, 95 Mo. 411; State v. Gartrell, 71 S.W. 1025. (2) It was error in the trial court to fail to instruct on manslaughter in the fourth degree under the evidence. Authorities supra.

Edward C. Crow, Attorney-General, and Bruce Barnett for the State.

(1) (a) Appellant did not ask the court to instruct the jury on all points of law arising in the case. To the instructions given by the court he saved exceptions as shown in the following words: "To the giving of which instructions the defendant then and there duly excepted as not fully setting out and instructing the jury upon all the law in the case." If appellant desired further instructions, he should have either offered them or asked the court to instruct the jury upon all the law of the case. The only difference between a civil and a criminal case in this regard is that in a civil case the party must ask for each particular instruction which he may desire, while in a criminal case the request may be in general form. State v. Meadows, 156 Mo. 110; State v. Waters, 156 Mo. 132; State v. Palmer, 161 Mo. 152; State v. Huff, 161 Mo. 459; State v. Norman, 159 Mo. 531. And this rule has not been changed by section 2627, Revised Statutes 1899. State v. Vinso, 171 Mo. 576. (b) Nor can this court review the instructions which were given in this case, no objection having been made, nor exception saved thereto, on account of errors therein, but only because of the alleged fact that there were not enough of them. In other words, the error claimed by appellant was one of omission and not commission. (2) (a) Appellant complains in his motion for new trial that the court erred in failing to instruct the jury on manslaughter in the fourth degree. The State's evidence showed a killing done premeditatedly and with malice aforethought, and the defendant swore to a state of facts which, if true, would make out a case of self-defense. There was no room for middle ground and no evidence to call for an instruction on manslaughter in the fourth degree. To have given such an instruction would have furnished the jury an opportunity of returning a compromise verdict not based upon any evidence, and would have been as prejudicial to the defendant as to the State. State v. Sumpter, 153 Mo. 436; State v. Renfrow, 111 Mo. 589; State v. Smith, 114 Mo. 406; State v. Brady, 87 Mo. 142; State v. Lane, 64 Mo. 319; State v. Johnson, 76 Mo. 127; State v. Dunn, 18 Mo. 419; State v. Hollingsworth, 156 Mo. 178; State v. Meadows, 156 Mo. 110. (b) But since the defendant asked for no instruction on manslaughter in the fourth degree, he can not now complain, regardless of whether he was entitled to such an instruction. State v. McGinnis, 158 Mo. 105; State v. West, 157 Mo. 309; State v. Weber, 156 Mo. 249; State v. Pitts, 156 Mo. 247.

Jno. A. Gernez for appellant in reply.

(1) The proposition laid down by respondent in the first point of his brief, is not now nor has it ever been the law of this State, nor is such the doctrine enunciated by the cases cited. To the contrary, they prescribe the manner which shall be proper for a defendant in excepting to inadequate instructions, and this manner is identically the one defendant used at the trial. Defendant properly saved his exceptions at the time the court gave its instructions, and subsequently when the motion for a new trial was overruled. (2) The cases cited to the second point of respondent's brief are undoubtedly correct enunciations of law as to instructing on manslaughter, as far as these particular cases are concerned. They simply hold that no instruction for manslaughter is warranted unless there is evidence upon which to base such instructions. That is admittedly the law. But appellant insists that in the present case the evidence of the defendant and of other witnesses detailed a condition where all the facts in evidence not only warranted such instruction but failure to give it by the court was grievous error. Whether such instruction is warranted must be determined by the trial court in view of all the evidence. The error complained of is that the trial court entirely disregarded such evidence in determining upon the instructions.

OPINION

BURGESS, J.

Defendant was convicted of murder in the second degree, and his punishment fixed at ten years' imprisonment in the penitentiary, for having shot and killed with a pistol one John Fox in the city of St. Louis on the evening of December 25, 1901. The case is before us upon his appeal for review.

Both defendant and deceased were negroes. The killing occurred at a negro clubroom in said city, of which both parties were members.

William Fox, a brother of the deceased and acting vice-president of the club, testified on behalf of the State substantially as follows:

That at about half past eight in the evening of Christmas day he was at the clubrooms when Clarence Weakley, the defendant, came in, and witness said to him, "I told you about your treating me; it isn't right the way you have acted, shooting here," and that defendant replied, "What shooting?" and witness said, "You done it;" and defendant answered, "I have done it and what are you going to do?" and witness said, "There is nothing to do but to go out and stay out;" whereupon defendant put his hand back to his pocket as if to draw a pistol, and upon this witness's brother, John (the deceased) stepped into the room and pointed a gun at the defendant saying: "Chance, don't do that, I am bound to protect his life;" and Chance replied, "I have not got nothing." Deceased wanted witness to search defendant, but witness said, "I never took advantage of no one. I am not going to run from him." The defendant then said that he "didn't have nothing," and witness said, "Let him go, John." The deceased then put up his gun and said to the defendant, "Don't think hard of me for what I have done; I haven't done anything but what you would do for your brother." Defendant then said, "That is all right, John." The deceased then walked into the next room, but a moment later said to the defendant, "Chance, I can talk to you," and defendant replied, "Certainly." The deceased and the defendant then walked out into the hall and in four or five minutes deceased returned saying, "Everything is all right." And the defendant said, "Everything is all right with me and him, John." The deceased then turned his back, and the defendant fired two shots at deceased, which took effect in the head and jaw. He fell in witness's arms, and as far as witness could tell, died almost instantly. At the time deceased was shot he had in one hand a cane, which he carried as a regular habit, having become crippled some time before, and in the other hand a cigar, which he was smoking. Witness did not see defendant at the time the first shot was fired, but he did see him as he fired the second shot, defendant having gotten to the door by that time. Immediately after this occurrence defendant turned and ran away and was seen no more about the clubrooms. Just before defendant fired the shot he said, "Yes, it is all right with me, John."

Malcolm Powell, who was at the club at the time of the shooting testified in substance that the defendant came to the clubrooms that night with some other parties and witness's brother; Will Fox told defendant that he had mistreated him, shooting off his gun, and that if he could do no better he wished he would stay away; that he would do him a great favor by doing so; words became very hot, causing witness to quit playing cards, and to go to the room where they were in time to hear defendant say to Will Fox, "Well, I have done, it, what are you going to do about it?" to which Will Fox replied, "I can do nothing but tell you to stay away;" that defendant then stepped back and made a motion as if to draw a gun from his pocket, whereupon witness's half-brother, John Fox, the deceased, stepped in and lowered a pistol at the defendant with these words, "Don't do that, Chance, I am saving my brother's life and at the same time protecting your life." The defendant then said, "I have not got anything, I have not got any gun." The deceased then walked into an adjoining room, but very soon returned and said to the defendant: "Chance, I haven't done anything more than you would do for your brother. I am protecting my brother's life and yours at the same time. I don't want you to think hard of me, I have not done anything more than you would do, can't I talk to you?" and to this defendant smiled and answered, "Yes." Defendant and the deceased then went out into the hall to talk, and soon the deceased returned saying, "Everything is all right, ain't it, Chance?" and Chance said, "Yes, everything is all right with me." Just as deceased stepped over the doorsill witness heard a shot fired, and defendant then stepped just inside the room and fired a second shot, and deceased fell across the door; ...

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