State v. Bostwick

• Decision Date: 13 November 1912
• Citation: 150 S.W. 1063,245 Mo. 483
• Parties: STATE v. BOSTWICK.
• Court: Missouri Supreme Court

150 S.W. 1063

245 Mo. 483

STATE v. BOSTWICK.

Supreme Court of Missouri, Division No. 2.

November 13, 1912.

1. CRIMINAL LAW (§ 1064)—APPEAL—PRESENTATION BELOW—OBJECTIONS TO INSTRUCTIONS.

Objections to instructions cannot be considered on appeal if accused did not call the trial court's attention to them in his motion for new trial.

2. HOMICIDE (§ 45)—MANSLAUGHTER—EPTHETS.

Insulting epithets inducing homicide are not alone sufficient to reduce it from murder to manslaughter.

3. CRIMINAL LAW (§ 1159)—VERDICT—CONCLUSIVENESS.

The question for the appellate court to determine on accused's appeal is not whether accused was guilty but whether there was substantial evidence introduced by the state making out a case as charged.

4. CRIMINAL LAW (§ 448)—EVIDENCE—OPINION EVIDENCE.

In a prosecution for homicide committed while accused was attempting, at his tenant's request, to have decedent leave a house rented by accused, evidence that witness expected decedent to carry out the threat made by him to the tenant was properly excluded.

5. HOMICIDE (§ 169)—EVIDENCE—RELATIONS OF PARTIES.

Evidence of quarrels on the day preceding the night of the homicide between decedent, who was then intoxicated, and one who had induced accused to attempt to put decedent out of his house, was not admissible.

6. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR.

In a prosecution for homicide committed while accused was attempting to eject decedent from a house leased to another by accused, upon the tenant's request that accused go down with him to the house, a witness testified that when the tenant's family left the house decedent's wife and daughter were screaming and begged another to go down there because decedent was going to kill their baby, and such other said that he did not have his pants on and to go down and get accused. An objection to the evidence was sustained, but the evidence was not withdrawn from the jury. It was offered to show that accused did not seek an encounter with decedent, but went to the house at the request of others, which clearly appeared from other evidence. Held, that accused could not have been prejudiced by the court's action; what the women were saying not being material.

Appeal from Circuit Court, St. Francois County; Peter Huck, Judge.

Ellis Bostwick was convicted of second degree murder, and he appeals. Affirmed.

Defendant appeals from a conviction upon an information charging murder in the second degree. The jury found him guilty as charged, and fixed his punishment at 10 years in the penitentiary.

The defendant operated a poolroom and restaurant in the town of Taylortown, St. Francois county. As agent for the owner, he had rented a house near by to one Stegall, who lived therein with his wife and children, and with whom lived the deceased, who was Stegall's father-in-law. During the day preceding the night of the homicide, the deceased had indulged freely in liquor, and was in an ugly frame of mind. He quarrelled with Stegall during the day, and on the evening in question frightened Stegall and his family out of the house. After leaving the house, Stegall and his wife and baby went to defendant's place of business, stating to defendant that James Meeker, the deceased, was in a dangerous frame of mind, and was threatening to kill him (Stegall), also that Meeker had a knife which he was prepared to use. Having attempted to get hold of an officer, and failing, Stegall requested the defendant to go with him to his home in order that he might get his hat before going to seek an officer of the law. Bostwick, the defendant, consented to go with him, saying that if necessary he would put Meeker out of the house and nail it up, and took with him for this ostensible purpose a claw hammer. Up to this point the evidence is not in dispute. The testimony for the state shows that, upon reaching the home of Stegall, the deceased was found sitting in a chair. The defendant reproached him for his conduct, and there was some exchange of violent language between deceased " and the defendant. As defendant was standing at the door, and apparently about to leave, deceased approached him and applied to him a vile epithet, and further...