State v. Bowles

• Decision Date: 07 November 1898
• Citation: 47 S.W. 892,146 Mo. 6
• Parties: STATE v. BOWLES.
• Court: Missouri Supreme Court

47 S.W. 892

146 Mo. 6

STATE v. BOWLES.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

HOMICIDE — INTENTIONAL ACT — DEADLY WEAPON — MALICE — PREMEDITATION — INSTRUCTION — SELF-DEFENSE — PHYSICAL DISPARITY — USE OF KNIFE IN FIST FIGHT.

1. Deceased and accused (acquaintances, without previous ill feeling) got into a fist fight over a scarecrow placed by the deceased and others, for a joke, at the roadside, along which accused passed shortly thereafter. It was dark, and in the fight accused stabbed deceased with a knife. Held, that the stabbing was not unintentional, and an instruction as to murder in the second degree was proper.

2. In a fight, accused struck deceased with a sharp instrument, inflicting a fatal wound, from which the deceased died in a few hours. Held, that the knife used was a deadly weapon.

3. Deceased and accused, without previous ill feeling, got into a fist fight over a scarecrow placed by deceased and others, for a joke, on a roadside hedge at night to scare passers-by, of whom defendant was one. Accused and his companion indulged in offensive and insulting oaths and epithets, and the companion threatened to shoot deceased. In the fight, which occurred in the dark, accused drew a knife, and stabbed deceased in the right groin, severing the iliac artery and penetrating the peritoneum. Held, that the evidence was sufficient to go to the jury on the question of malice and premeditation, and hence a charge on murder in the second degree was proper.

4. Where an indictment did not charge conspiracy or a joint offense, and there was no effort to connect another with the crime for which accused was being tried, a charge that the jury could not consider anything said by such other person at the time of the difficulty as bearing on the accused's conduct was unnecessary and properly refused.

5. Where a killing resulted from a fist fight, in which accused drew a knife and stabbed deceased, a heavier and stronger man than himself, and the defense was self-defense, it was error to exclude accused's evidence that at the time of the difficulty he was suffering from an acute nervous disease, especially affecting his hip joint; that he was unable to perform manual labor, to ride horseback, or to move out of a walk, and continually had to take hypodermic injections to allay the pain caused by the affliction, — since it tended to show great disparity in the physical condition of the two men.

Appeal from circuit court, Platte county; C. A. Anthony, Special Judge.

C. C. Bowles was convicted of murder in the second degree, and he appeals. Reversed.

E. C. Hall and Witten & Hughes, for appellant. Edward C. Crow, Atty. Gen., Sam. B. Jeffries, Asst. Atty. Gen., and W. W. Graves, for the State.

GANTT, P. J.

The defendant was indicted for murder in the second degree, — of Hugh Hall, in Clinton county, on the 6th of March, 1897, — and was convicted as charged. No error is assigned or perceived in the record proper. The evidence, briefly stated, establishes that the homicide occurred near a small village called "Lilly." There are two stores in the place. The deceased was a clerk in one; and defendant, in the other. There is no evidence of ill feeling between the two prior to the night of the homicide. On that night the deceased, Hall, and several others, in the spirit of a joke, made a scarecrow, by cutting openings for a human face in a paper box, and placing a lamp inside, for the purpose of frightening John Shaver, the proprietor of the store in which defendant clerked, and one Atcheson, a young man visiting in the neighborhood. Shaver lived on his farm, about one-half of a mile north of Lilly. Having constructed their scarecrow, the deceased and his party, about 9 o'clock that night, went up the road leading from Lilly to Shaver's house, about a quarter of a mile, and placed the scarecrow in a hedge fence on the east side of the road. Opposite to this place was a haystack, in a field across the road. Two of the party went into an adjoining cornfield, and the deceased and others went behind the haystack to await the coming of Shaver and Atcheson. About 9 o'clock that evening, Shaver closed his store, and he and the defendant, Bowles, started to his home together, up the said public road; Shaver riding a pony, and defendant walking. The night was dark and cloudy. When they reached the point in the road where the scarecrow had been placed in the hedge fence, Shaver discovered it, and shot at it with his pistol. Thereupon the young men in hiding all laughed, and indicated their hiding place. Shaver said to defendant: "There they are behind the haystack. You shoot them on that side, and I will shoot the sons of bitches when they come around on this side." The deceased was then on top of the stack, and rose up and said, "Shoot me, if you wish." After a wordy altercation, deceased came down, and, being asked, said he had put up the scarecrow. Defendant thereupon said: "Hugh, you ought not to have put that there. It might make trouble." A quarrel ensued, and resulted in a mutual rencounter between deceased and defendant with their fists. According to the defendant's evidence, deceased struck him first with his fist; but it was dark, and the witnesses could not state definitely which struck first, but both were engaged in it. The fight continued between these two until defendant was forced or knocked back to the ditch on the side of the road, when defendant was seen to strike deceased with a swinging lick; and, as he did, Hall, the deceased, cried out: "He has a knife. He has stabbed me, and stabbed me bad," — and leaned or fell against a post. He began to sink down, and was caught by some of his companions and laid on the ground. One of the party immediately went after a physician. Defendant's evidence tended to show that deceased was striking him when the fatal stab was given, and that defendant had seen deceased make a motion towards his pocket, as if to get a weapon, but that it was so dark defendant could not see whether he had anything in his hand. On the other hand, the state's evidence tended to show that before the fatal blow was given the combatants had ceased fighting for a few moments, and deceased was standing still, and his hands had dropped to his side, when defendant suddenly sprang forward and stabbed him. The wounded man was taken back to the store, and when the physician came it was ascertained that deceased had been cut in the right groin. The wound had been inflicted by a sharp instrument. It cut through "two parts ligament, severed the iliac artery, and cut through the peritoneum." The physicians testified that the wound was in a vital part, and was necessarily fatal. The body of deceased was examined that night, and no weapon found upon him, and the state's witness testified he made no attempt to use any in the fight. On the part of defendant, he and his brother testified to finding an open knife next morning near the place of homicide, which they identified as either belonging to defendant, or being very similar to one he usually carried. This evidence, in turn, was rebutted by the state.

1. The first, and we think the most serious, contention of the learned counsel for defendant is that under the facts there is no murder in the case, and it was error to instruct upon the elements of murder in the second degree, as was done by the circuit court. The propriety of this charge depends upon the law. In this state it has been uniformly and consistently adjudged that, when one intentionally stabs another in a vital part with a deadly weapon, the law presumes that he intended the natural consequences of his act, and from the use of the deadly weapon the existence of malice may be inferred, and he will be guilty of murder in the second degree, in the absence of qualifying or mitigating circumstances, or...