State v. Bailey
| Decision Date | 31 July 1874 |
| Citation | 57 Mo. 131 |
| Parties | STATE OF MISSOURI, Respondent, v. WILLIAM BAILEY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court.
McBeth & LaDue, for Appellant.
H. Clay Ewing, Atty. Genl., and B. G. Boone, for Respondent.
The defendant was indicted for murder in the first degree, in killing one Hopkins, and on his trial he was convicted of manslaughter in the second degree. To reverse that judgment he has appealed to this court.
The evidence shows that ill-feeling had, for some time, existed between the defendant and Hopkins, in consequence of Hopkins being the author and circulator of a cruel slander against defendant's mother.
On the evening when the homicide was committed, Hopkins was in a store in the town in which he lived, and in a short time thereafter, defendant came in. Hopkins was boisterous and flourished his pistol, and accused defendant of following him, ordered him to leave, and then declared that they might as well settle their difficulty at that time. Defendant denied that he was following him, but declined leaving, saying that he had as good right to stay there as Hopkins. A couple of men then took hold of defendant and besought him to leave, in order to avoid a conflict. He went out with them in front of the door, and Hopkins immediately followed. At that time defendant's mother, who had been informed of what was going on, came up and said to Hopkins, that if he wanted to shoot anybody to shoot her. He answered her with a disgusting blackguard expression, and the firing immediately commenced, several shots being fired on each side.
The witnesses do not attempt to fix, with any accuracy, the point as to who fired the first shot. Some say that they think the defendant fired first; others say that Hopkins was the first to fire, but all concur, that the firing on both sides was nearly simultaneous.
A great many objections are now urged against the proceedings below, but after examining them carefully I am of the opinion, that most of them are too technical to be available, and it will therefore be only necessary to consider some of the instructions excepted to. As abstract propositions of law, the instructions are correct, and the only question to be determined, is, whether they were warranted by the evidence.
The fifth instruction given for the State tells the jury, that if they find, from the evidence, that defendant, Bailey, and deceased, Hopkins, had a difficulty which resulted in the death of Hopkins, and that the defendant commenced the difficulty or brought it on by any willful and unlawful...
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... ... plaintiff's instructions, submitting to the jury, whether ... the train was run and managed with ordinary care or not ... State v. Bailey, 57 Mo. 131; Music v ... Railroad, 57 Mo. 134; Flori v. St. Louis, 3 ... Mo.App. 231; Sheedy v. Streeter, 70 Mo. 679. (8) ... ...
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...v. Railroad, 185 Mo. 255; Gutridge v. Railroad, 194 Mo. 472. (4) The court erred in giving instruction number two for the State. State v. Bailey, 57 Mo. 131; State v. Sayers, 58 Mo. 588; State v. Hudson, 59 Mo. 138; State v. Chambers, 87 Mo. 409; State v. McKenzie, 102 Mo. 631; State v. May......
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