State v. Bates

• Citation: 239 Mo. 507,144 S.W. 99
• Parties: STATE v. BATES.
• Decision Date: 06 February 1912
• Court: United States State Supreme Court of Missouri

144 S.W. 99

239 Mo. 507

STATE v. BATES.

Supreme Court of Missouri, Division No. 2.

February 6, 1912.

1. HOMICIDE (§ 309)—TRIAL—INSTRUCTIONS.

Where accused testified that, while he and deceased were riding on a street car, deceased called him vile names, assaulted him, knocked him down, and was choking him, when he drew his knife and killed deceased, a charge upon manslaughter in the fourth degree should be given.

2. HOMICIDE (§ 309)—TRIAL—INSTRUCTIONS.

Where it appeared that deceased attacked accused while on a street car, called him vile names, and was choking him when accused stabbed him, a charge on manslaughter should have been given, although accused testified that deceased was killing him, and that he was dying, for the fact that self-defense was also sought to be shown does not render unnecessary an instruction on manslaughter.

3. HOMICIDE (§ 309)—MURDER—REQUISITES.

Malice is an essential of murder, and, where there was evidence tending to show provocation of accused, an instruction on manslaughter should be given.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Julius Bates was convicted of murder, and appeals. Reversed and remanded.

Chas. P. Johnson, Jos. G. Williams, and I. A. Rollins, for appellant. Elliott W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

BLAIR, C.

Having been convicted in the circuit court of the city of St. Louis of murder in the second degree and sentenced to the penitentiary for a term of 10 years, defendant has appealed.

Defendant and deceased, Joseph Driskell, were entire strangers, and the killing occurred upon a crowded street car, upon which both were passengers. Deceased was standing upon the rear platform of the car when defendant boarded it and took his position at the door and in front of deceased, who was in front of, and leaning against, the first of two rails running across the platform dividing it into three sections. The defendant and deceased were very near each other, and the sudden jerking of the car as it started up caused defendant to "brush" or "bump" against deceased, and out of this trivial incident grew the tragedy.

The evidence offered by the prosecution was fully sufficient to support the verdict returned, though the state's witnesses did not agree in some important particulars. The testimony of the witness who seems to have occupied the best position to see what happened, and hear what was said, was to the effect that defendant was holding to the handle on the car door and (doubtless after the motion of the car had thrown the two against each other) said to deceased: "Why don't you go inside?" Deceased replied: "I don't have to go inside. I have been standing here all this while. You get inside." Deceased then added: "Don't lean or rub against me." Defendant then started to turn facing deceased, and, opening his knife, said to him: "Don't talk that way to me." As defendant turned Driskell "grabbed at him," the two men clinched, and defendant went down backward into the car, deceased on top of him. A bystander seized defendant's right arm, and the witness lifted deceased to his feet. Other witnesses gave somewhat different versions of the affair, one declaring that defendant stabbed deceased as he turned facing him, and that deceased was not down at any time. Another, that he, the witness, seized defendant from behind, and threw him backward to the car floor, and that deceased was bending over the defendant as the latter lay upon his back. It appeared that two of deceased's companions took defendant's knife from him, one holding his right arm and the other placing his foot upon his neck and face and jerking the knife out of his hand, thereby cutting defendant's fingers slightly. Deceased died from the effects of a knife wound which pierced the left ventricle of the heart. Another slight wound was found upon the head back of the left ear. Despite his wounds, the testimony is that deceased stood in his former position, leaning against the rail, while the car ran two blocks, and then, with some assistance, walked from the car to the sidewalk, where he sat down and died.

On the part of the defense, there was evidence that defendant's reputation for peace, quiet, sobriety, and industry was good. It appeared from the testimony of the policeman who arrested him that defendant's lips were bruised and bleeding, and his fingers had been cut.

Defendant testified that, when the car jerked and caused him to brush against deceased, the latter asked him, "What in the hell was the matter with him?" and, when he tried to explain and asked deceased to excuse him, deceased said: "Like hell I will excuse you. You damn black son of a bitch, stand up there." At this juncture the conductor came back for defendant's fare and passed on. Deceased then said: "Get off this car and I will fix you." Defendant replied that he had paid his fare, and "didn't have no right to get off the car," whereupon deceased called defendant a vile name and struck him in the mouth with his fist, and immediately a man seized him (defendant) from behind and jerked him down in the car, deceased leaping upon him, and commencing to choke him with both hands. Defendant's testimony is further to the effect that not until he was down and deceased upon him, choking him, did he draw his knife; that he then got his knife out of his pocket; that he had to do something because deceased "was killing him"; that, having taken out his knife, he "made a blow somehow"; that some one seized his right hand and another put his foot upon his neck, and, seizing the knife, jerked it away, thereby cutting his fingers. He further testified that, when he got to his feet, he "didn't have no forethought, because he was crowded on and scared to death."

1. Defendant's counsel requested and the trial court refused to give an instruction on manslaughter in the fourth degree, and as a consequence this judgment must be reversed and the cause remanded for retrial. The testimony of the defendant discloses a typical case of manslaughter as that offense is defined in the text-books and reports. Why the instruction requested was refused it is difficult to understand. The trial court should not have thus, by implication, excluded from the consideration of the jury any part of the defendant's testimony. According to that testimony, defendant, after being called vile names, was suddenly and violently assaulted, knocked down, and was being choked when he drew his weapon and struck the fatal blow. That this was evidence of lawful and reasonable provocation sufficient to engender that heat of passion which reduces the offense of slaying another to manslaughter in the fourth degree is too apparent to require discussion or the citation of authority.

The defendant's testimony tending to show that the killing was manslaughter, it was the duty of the trial court to submit that question by proper instructions, and leave it to the jury to say whether that testimony was true. If courts can, without error, refuse to instruct juries upon one phase of a...