Schrader v. State

• Decision Date: 18 April 1904
• Citation: 84 Miss. 593,36 So. 385
• Court: Mississippi Supreme Court
• Parties: EDWARD SCHRADER v. STATE OF MISSISSIPPI

36 So. 385

84 Miss. 593

EDWARD SCHRADER v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

April 18, 1904

March 1904

FROM the circuit court of Washington county HON. A. MCC. KIMBROUGH, Judge.

Schrader the appellant, was indicted, tried, and convicted of murder and appealed to the supreme court.

The evidence showed that one Connelly, early in the night, had a difficulty with one Anderson, and ordered him to keep out of his dramshop; that Anderson, after leaving, returned to the dramshop, and he and Connelly got into a fight, and were separated; at about the time they were separated, Schrader came in, and urged Anderson to fight Connelly, at the same time hurling some abusive epithets at Connelly; that Connelly made no reply, but walked out of the dramshop, leaving Schrader inside; that it was proposed by some one in the crowd that Connelly and Schrader retire to the back yard and fight it out; Schrader and Anderson and some others did go into the back yard, and stayed there a short time, but Connelly did not go; that when these men came back and got near to where Connelly was standing, Schrader approached Connelly, and abused him, saying, "I will fight you myself, " and struck at Connelly; that both Schrader and Connelly started to shooting. The evidence is conflicting as to which shot first. Schrader was wounded and Connelly was killed. The defendant objected to the introduction of the testimony which refers to the difficulty between Anderson and Connelly before Schrader came in, because Schrader was not present, and there was no conspiracy shown to exist between Anderson and Schrader.

No evidence was introduced as to the character of defendant, and the language of the prosecuting attorney, made in his closing argument, and objected to by the defendant, is as follows "I want to take the prisoner here, and walk with him and you that night, and show you how the people regarded him." "Knowing his past, the policemen did not try to stop Schrader." It is urged by appellant that these remarks were a successful effort on the part of counsel to place in evidence the character of the defendant as being bad, when there had been no testimony as to his character.

The ninth instruction asked by the defendant, and refused by the court, is as follows: "Instruction No. 9. The court instructs the jury, for the defendant, that no words nor assault with the fist alone will justify the taking of human life, and even if the jury believe from the evidence in this cause that the defendant, Schrader, used insulting language to and struck at deceased, yet they will acquit the defendant if they further believe from the evidence that, at the time that the defendant undertook to strike deceased, deceased shot defendant, and defendant, being so shot, drew his pistol and fired and killed deceased, believing himself to be in actual or apparent danger of losing his own life, or of having some great bodily harm done him."

Affirmed.

Jayne & Watson, for appellant.

The court below erred in permitting evidence to be introduced with reference to the first difficulty between Connelly and Anderson. From the beginning of such testimony to the ending of the state's evidence appellant interposed and insisted that any evidence with reference to a difficulty between Anderson and Connelly was inadmissible, because appellant was not present at such difficulty, and, further, because there was no conspiracy shown to exist between Anderson and the appellant. It was clearly the purpose of the state, in introducing this testimony, to create the impression that appellant was present at Connelly's dramshop for the purpose of aiding in a difficulty with Connelly. It is unjust to appellant that evidence tending to show his attack upon Connelly was premeditated by the introduction of evidence of what was said and done when he was not present, no conspiracy having been shown to exist. No authority is required to sustain this proposition.

During the prosecutor's argument exceptions were made to his speech. Once when he said, "I want to take the prisoner here and to walk with him and you that night and show you how people regarded him, " was nothing more nor less than a successful effort on the part of counsel to place in evidence the character of a man as being bad, when there had been no testimony as to character. True it is, counsel says that what he did say was that he was going to show from the evidence in the ease and the testimony of witnesses before the jury, etc. But how could this help his cause, when there had been no evidence before the jury of character? We think under the testimony a new trial should have been granted to appellant, by reason of the fact that the juror, Mann, when he qualified as a juror, did so knowingly and corruptly. There can be no question, after he was subpoenaed and before he was examined on his voit dire, that he had stated to Calhoun and young Jayne what his purpose and intentions were--viz., to send Schrader to the penitentiary, which he was successful in doing. It is true, he disputed what these young men said, but the weight of evidence is entirely against his statement.

Under the facts of this case we do not believe that appellant should have been convicted of murder. The testimony is overwhelming that Connelly fired the first two shots, had shot Schrader nigh unto death, and that Schrader never fired on Connelly until he, Schrader, had received two terrible wounds. The testimony of everybody on the scene, except McLoughlin (who says that somebody else rather than Schrader shot Connelly) and two lewd women, all agree that Connelly fired first. The policeman, the captain of the police, and every other witness who saw the shooting, agreed that Connelly fired the first two shots. Captain Quinn says that when he begged Connelly to go off, Connelly said that he could take care of himself. It is true that Schrader was the beginner of the difficulty with Connelly, but it must be remembered that he only struck at Connelly with his fists, which did not deny Schrader the right of self-defense when Connelly assaulted him with a deadly weapon. Prine v. State, 73 Miss. 838; Smith v. State, 75 Miss. 542, 630.

William Williams, attorney-general, for appellee.

As to the action of the court in admitting testimony of Frank Dorsey in regard to first difficulty between Anderson and Connelly: Schrader came in at an opportune moment of the second difficulty. Anderson had left the dramshop after the first difficulty and had returned. Connelly saw him in his house again and reminded him to stay out. The two clinched when these words were spoken, and the witnesses say Schrader appeared as they were being separated, or, as one witness says, while they were still clinched. The time is estimated by one witness as a...