Stalcup v. The State

• Decision Date: 24 November 1896
• Docket Number: 17,865
• Citation: 45 N.E. 334,146 Ind. 270
• Parties: Stalcup v. The State
• Court: Indiana Supreme Court

45 N.E. 334

146 Ind. 270

Stalcup v. The State

No. 17,865

Supreme Court of Indiana

November 24, 1896

From the Marion Criminal Court.

Reversed.

Willard Robertson, for appellant.

W. A Ketcham, Attorney-General, and F. E. Matson, for State.

OPINION

Howard, J.

The appellant was convicted of murder in the second degree and sentenced to imprisonment in the State's prison during life for the killing of George Owens.

It is assigned as error on this appeal that the court overruled appellant's motion for a new trial.

The quarrel which resulted in the death of George Owens occurred on May 13, 1895, in a drinking place, known as Power's barrel house, on East Washington street, in the city of Indianapolis. Both parties were colored persons. Excepting appellant himself, the only witness who testified to the circumstances leading up to and immediately following the fatal blow, was the barkeeper, John R. Merl. His testimony shows that at a little before 11 o'clock in the evening Owens came into the place with a white man. It could be seen that both had been drinking. Owens stood with his back to the bar, not far from the screen, his left elbow resting on the bar. The appellant was then standing near the stove, about nine feet from Owens. Owens did not say anything at first, but in a short time raised his head and looked over at the appellant, asking, in very gross language why appellant was always bothering him. Appellant replied that he was not bothering him. With that both men seemed to move towards one another. Owens afterwards falling back to the bar, but a little farther down towards appellant. Appellant then also stopped, standing about two or three feet from Owens. Owens was at this time, as the witness says, standing "away from the bar and using the bar as a brace, leaning back." The witness continues: "While leaning back in that shape --he came in once before with a knife in his hand--I could see the blade of the knife in the palm of his hand, about that position (indicating), like that, and standing about like that (indicating). * * * Dave [appellant] had stopped walking, I think." At this time the deceased said: "Oh, damn you, and your family and your sisters." Appellant replied: "Don't you damn me and my sisters, don't you damn me and my family and sisters," calling him also a vile name. The barkeeper then saw that there was to be trouble and started around the screen to part them. His evidence continues: "When I got around there they had parted, just as I got around there. It looked like Mr. Owens braced himself that way and struck Dave that way, and in striking out fell over towards the barrels." "Did he miss Dave or hit him?" "Missed him." "That is the only strike you saw him make at Dave?" "I think it was, unless he struck the same time Dave did." The barkeeper then parted them, Dave, the appellant, going out on the street; and Owens also starting out, when apparently realizing that he had been hurt, he said, "I am cut." As appellant was going out the barkeeper had said to him, "Did you cut him, Dave?" but appellant made no answer.

Appellant's own evidence as to the quarrel is that he was near the stove when Owens came in and stood leaning at the bar, and then continues: "He began to monkey with me, picking at me. I asked him to go away. I told him that he was full, and I did not care about fooling with him. He was drunk. After he found I would not fool with him, he got mad and cursed me, and he said: 'Damn you, you little black son of a b--h, I will cut your damned head off,' spoke that way. I did not know whether he meant it or not. I said to him: 'Maybe you will, you are big enough to do it.' Just that way. He said: 'Yes, damn you, I will do it.' I said, 'Well, I do not know;' so he gets back against the bar, and says to me: 'Damn you, and your mother and sisters, and the whole family of you.' I stepped out, I said: 'George, don't damn me and my family, my mother and sisters, they are not bothering you.' Just that way. He said: 'I will cut your damn head off.' He said that. When he said that I stepped back towards him from the stove, and said: 'Don't curse me and my mother and sisters.' They were not bothering him. He said: 'I will cut your damned head off.' He was leaning on the bar on his elbow, he had a knife in his hand, I saw the knife. I stepped back after he straightened up from the bar. I stepped back and he made two or three steps towards me with the knife in his hand. I saw he had the knife and I ran my hand in my pocket and pulled my knife out and opened it. He kept cursing me and coming towards me with the knife; he came three or four steps towards me. I saw he was going to cut me. He raised the knife and stepped back, and I got my knife open and he rushed on, and I stuck my knife at him, that way (indicating). He kept coming towards me. After I stuck my knife at him I did not know I had cut him until he rushed up by the door and stopped very sudden and fell down. When he got up his knife fell. He said, 'I am cut.' He gets back against the bar with the knife in his hand. By that time Johnny Merl [the bartender] came around from behind the screen." Certain statements made by appellant to the officers at and after his arrest were also given in evidence.

The two men were acquainted, but do not seem to have had any relations, either friendly or unfriendly, with each other, except that they had, during that day, a little scuffle. Appellant was a laborer and his reputation, previous to this, is not called in question. The deceased was much larger and stronger than appellant. He was abusive and quarrelsome when in drink, but otherwise apparently good natured. He had been sentenced to the workhouse for assault and battery. He had been in the barrel house twice before, during the evening of the fatal accident, once about half past six and once about nine o'clock. He was under the influence of liquor each time, and acted in an abusive manner.

Fred Baum testified that he saw Owens in the barroom about half past six. "He came in there," says this witness "and commenced to raise a disturbance right away. * * * He stepped up to the bar and asked for a drink,...