State v. Clay

• Decision Date: 05 March 1907
• Citation: 100 S.W. 439,201 Mo. 679
• Parties: STATE v. CLAY.
• Court: Missouri Supreme Court

100 S.W. 439

201 Mo. 679

STATE v. CLAY.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. HOMICIDE — MURDER — INDICTMENT — SUFFICIENCY.

An indictment for homicide charging that accused feloniously willfully, deliberately, premeditatedly and of his malice aforethought assaulted deceased with a pistol, which he feloniously, willfully, deliberately, premeditatedly and of his malice aforethought discharged against and upon him, thereby feloniously, willfully, deliberately, and premeditatedly striking, penetrating, and mortally wounding deceased, of which mortal wound he instantly died, sufficiently charges the offense of murder in the first degree.

2. SAME — TRIAL — INSTRUCTIONS — CONFORMITY TO EVIDENCE.

Where, in a prosecution for murder in the first degree, there was no evidence of personal violence offered defendant by deceased, nor of any facts which would have a tendency to arouse such a sudden passion as would reduce the killing from murder in the first or second degree to manslaughter in any degree, it was not error not to charge on manslaughter in the fourth degree.

3. SAME — MANSLAUGHTER — NATURE AND IMMINENCE OF DANGER.

An honest belief entertained by accused, that deceased was about to inflict some great personal injury on him without any reasonable grounds for such belief, is insufficient to reduce the grade of crime from murder in the first or second degree to manslaughter.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Tom Clay was convicted of murder in the first degree, and he appeals. Affirmed.

This cause is now pending in this court upon appeal by the defendant from a judgment of the circuit court of Boone county, Mo., convicting the defendant of murder of the first degree. On October 14, 1905, the grand jury of Boone county returned an indictment, charging the defendant with murder in the first degree. As the sufficiency of the indictment is challenged, it is well to here reproduce it. It is as follows: "State of Missouri, County of Boone. In the Circuit Court, October Term, 1905. The grand jurors for the state of Missouri, summoned from the body of the inhabitants of Boone county, being duly impaneled, sworn, and charged to inquire within and for the body of the county of Boone aforesaid, on their oaths present and charge that Tom Clay, at Boone county, Missouri, on the 10th day of October, 1905, in and upon one Warren Merideth, in the peace of the state there being, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did make an assault, and that the said Tom Clay, a certain pistol then and there charged with gunpowder and leaden balls, which said pistol, he, the said Tom Clay, in his hands then and there had and held, then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did discharge and shoot off, to, against, and upon the said Warren Merideth, and that the said Tom Clay, with the leaden balls aforesaid, out of the pistol aforesaid, then and there by force of the gunpowder aforesaid, by the said Tom Clay discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did strike, penetrate, and wound him, the said Warren Merideth giving to him, the said Warren Merideth, in and upon the left side, and front part of the head of him, the said Warren Merideth, one mortal wound of the depth of about four inches and the breadth of about one-half inch, of which mortal wound he, the said Warren Merideth, at the said county of Boone and state of Missouri, on the said 10th day of October, 1905, then and there instantly died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say: That the said Tom Clay, him, the said Warren Merideth, then and there by the means aforesaid, at the county and state aforesaid, on the day aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder; against the peace and dignity of the state. F. G. Harris, Prosecuting Attorney. A True Bill. J. W. Read, Foreman of the Grand Jury."

The defendant entered his plea of not guilty, and, at the October adjourned term, 1905, of said court, he was put upon his trial. At the trial, the following state of facts were developed: The state's evidence substantially tended to prove that on the 10th of October, 1905, Mr. Wigginton was acting as bartender in the Blue Front saloon in Columbia, and that Alex Hicks had charge of that portion of the bar which was used by colored persons. The defendant and deceased, and most of the state's witnesses are negroes, and the shooting occurred in the west part of the saloon. The Blue Front saloon was operated by Mr. Kreutz, formerly by Mr. Victor, and faces east on Ninth street, in Columbia. It has an alley on the north and west sides of it. The front door opens to the east. The side door opens to the north, and the back door opens to the west. The bar is on the south side of said saloon. About 4 o'clock on the afternoon of said day, the deceased was standing at the bar talking to a relative of his, and smoking. The defendant came in the north door of said saloon, spoke to Alex Hicks, who was behind the bar, said something about going on a fishing trip, lighted a cigar, and went out the west door. At that time John Grant, Turner Bass, Lawrence Diggs, John Emerson, Walter Hunt, and Emmet Kimbrough, were in said saloon, some talking, some drinking, and others smoking. In a short time, variously estimated from five to ten minutes, the defendant returned with a pistol in his right hand, hanging down by his side. Deceased was still standing in the same position at the bar. Defendant walked within about four feet of the deceased, leveled the pistol at him and fired two shots. The deceased fell to the floor, and the defendant fired a third shot. All three of said shots took effect in deceased, and death was almost instantaneous. The defendant endeavored to fire his pistol a fourth time, but for some reason it was not discharged. The defendant then went out the west door, walked around to the north alley and on toward Ninth street. The coroner, M. P. Parker, was called and the body of deceased examined and removed. Dr. J. E. Thornton, who held the post-mortem examination, testified that he found three wounds on the body of deceased. The wounds indicated that one bullet entered about the middle of the back, one bullet entered about an inch below the right ear, and the third bullet entered about an inch above the left eye. Either wound was sufficient, in the opinion of the physician, to have produced instant death. In deceased's pockets the coroner found some tobacco, a memorandum book, and an old knife. The knife was shut up. All the state's witnesses testified that not a word was spoken by the defendant, nor by deceased, at the time of nor just prior to the shooting, and the deceased never moved from the position he was in when defendant was in the saloon the first time till deceased's body fell to the floor. The state's evidence further showed that some time in the afternoon the defendant was at a colored barber shop, and showed a pistol to Robert Bannister, stating that he had had trouble with the deceased that morning, and that if it had not been for Mr. Victor, deceased would have killed him. Defendant further said: "I left there this morning to keep out of trouble, but I am going back this afternoon, and, if Warren looks like he wants to do anything to me, I will pull out my gun and fill him full of holes." The defendant's evidence tended to prove that he had trouble with the deceased that morning; that deceased drew a knife and put it in his pocket and looked like he was mad at the defendant; and at the time of the shooting, the defendant says that the deceased suddenly turned toward him and at the same time reached his hand in his trousers pocket, and, believing from the actions of deceased that he (the deceased) was about to attack him with a knife, which he had previously seen, he immediately began to shoot. The defendant made complaint of the first trouble to the city marshal, Mr. Rogers, who advised him to keep out of deceased's way, and told him he had a right to protect himself, if necessary. The defendant also introduced evidence tending to show that some 20 years before, the deceased had served a term in the penitentiary for burglary, and larceny, and also that nine years before a coroner's jury found that one George Candy came to his death by reason of having been shot by the deceased, Warren Merideth. In rebuttal, the state proved that the deceased was never indicted nor prosecuted for the murder of George Candy.

At the close of the evidence the court very fully and fairly instructed the jury upon every possible phase of the case to which the testimony was applicable. The instructions for the state covered murder in the first and second degrees, appropriately and correctly defining the essential elements of those grades of crime, and those for the defendant presented with extreme liberality the law upon self-defense, reasonable doubt, credibility of witnesses, and of the weight to be given to their testimony. Learned counsel for appellant, neither in their brief nor oral argument, challenge the correctness of the instructions as given, therefore we deem it unnecessary to burden this opinion with a reproduction of them. Counsel for defendant did, however, request the court to give the following instruction: "The court further instructs the jury that, although they may believe from the evidence that the defendant did not have reasonable cause to believe that Merideth was about...