State v. Craig

• Citation: 190 Mo. 332,88 S.W. 641
• Parties: STATE v. CRAIG.
• Decision Date: 03 July 1905
• Court: Missouri Supreme Court

88 S.W. 641

190 Mo. 332

STATE v. CRAIG.

Supreme Court of Missouri, Division No. 2.

July 3, 1905.

1. HOMICIDE — INSTRUCTIONS — MURDER IN FIRST DEGREE.

A person indicted for murder in the first degree, and convicted of a lesser degree of homicide, cannot complain of an instruction as to murder in the first degree.

2. DYING DECLARATIONS—ADMISSIBILITY.

Though deceased, when advised of a change for the worse, said that he did not feel any worse, and that he could not afford to die, his statement thereupon made that he believed he was about to die, and that he had been told by the doctors that he was about to die, and made it as his dying statement, was admissible; it appearing that he had confidence in his physician, and the circumstances tending to show that his opinions as to his recovery had undergone a change, and his death having occurred within three hours after the statement was made.

Appeal from Criminal Court, Buchanan County; Benj. J. Castell, Judge.

Robert S. Craig was convicted of manslaughter, and he appeals. Affirmed.

F. F. Harl, K. G. Porter, and C. F. Strop, for appellant. H. S. Hadley, Atty. Gen., and John Kennish, for the State.

BURGESS, P. J.

Defendant was tried and convicted at the June term, 1903, of the criminal court of Buchanan county, of manslaughter in the fourth degree, and his punishment fixed at two years' imprisonment in the penitentiary, upon an information filed by the prosecuting attorney of said county charging him with murder in the first degree, for having, on the 3d day of November, 1902, at said county, stabbed and mortally wounded with a knife one Walter J. Lincolnhoeger, from the effects of which stabbing and wounding, on the 16th day of November, 1902, the said Lincolnhoeger died. The defendant, Robert S. Craig, at the time of the homicide, was a blacksmith in the city of St. Joseph, Mo., and had in his employ as such the deceased, Lincolnhoeger, and one Philip O. Lucas. Craig and deceased had a difficulty over the location and arrangement of a forge. It seems from the evidence that Lincolnhoeger had placed in position the bellows which was to be used in the operation of the forge, but which did not work well, and Craig was dissatisfied over it. He made some remark to the effect that the bellows did not work to suit him, when Lincolnhoeger retorted, "I guess everybody is damned fools that hangs bellows that way." Craig then walked over to where Lincolnhoeger was standing, and said, "Don't talk back to me in my shop." Deceased replied, "Come outside, and I will whip you in a minute." Craig then said, "I won't go out to fight you." After saying this he (Craig) went into a closet connected with the shop, came out in a few seconds with a big knife in his hand, went around the closet to where deceased was, and said to him: "You big son of a bitch, shut up now, or I will make you shut up." He then struck at deceased with the knife, and at about the same time deceased struck at him with his fist. Craig cut and stabbed deceased four or five times, when deceased struck him a blow with his fist and knocked him down. Deceased then ran out of the shop, and came near running into a carriage team that was being driven along the street. The driver saw him running out, and a man following him, and checking his team, he (the driver) heard deceased say, "Mr. Craig, please call me a doctor." To this defendant replied (prefixing the remark with a vulgar epithet), "You ought to bleed to death." The next day, in talking about the difficulty, defendant was shown to have said in the hearing of two persons, in answer to a question as to how the difficulty happened: "Oh, you know my beastly temper. My temper got the best of me." When deceased ran out in the street. Lucas went out to him, and he requested Lucas to get him a doctor; at the same time stating that he was bleeding to death. Lucas took him to a doctor, and his wounds were examined and given surgical attention. The examination disclosed a gash on his left arm just above the elbow; a stab wound on the left side below the arm, and further down another stab between the ribs; a stab wound on the right side between the fourth and fifth ribs; and one or two scratches that did not require attention. It was found that the stab wound on the right side had penetrated through the chest wall and punctured the lung tissue to a depth of about three-quarters of an inch.

The deceased, after his wounds were dressed, was removed to a hospital. His condition seemed to improve at the hospital until the 16th day of November, 1902, when about 7 o'clock in the morning of said day he began to change for the worse. The attending physician arrived about 9 o'clock, discovered the change in the patient's condition, and sent for the prosecuting attorney and his assistant. After they arrived, the doctor advised the deceased of the change in his condition. The deceased answered that he did not feel any worse. The doctor testified: "I said: `Walter, you are a very sick man, and the chances are all against your getting well. You are sinking now.' He looked at me and said: `Doctor, am I going to die?' I said: `Walter, I don't believe you can possibly get well.' He said: `I can't afford to die.'" The prosecuting attorney then interrogated him, and he made a written statement of the facts concerning his condition, saying he believed he was about to die, and also as to the facts concerning the difficulty between him and the defendant, which statement the prosecuting attorney reduced to writing, read the same over to him, and he signed it. The declaration was signed about 11 o'clock a. m., and deceased died about 1:20 p. m., the same day. The paper read as the dying declaration of deceased was as follows:

"Walter Lincolnhoeger, believing I am about to die, make this statement at 10:55 a. m., this 16th day of November, 1902. On Nov. 3rd, 1902, Bob Craig cut me with a knife. He called me a big son of a bitch. I called him no name. We had an argument first and then we decided to let the argument drop. He went to the closet and then he came out with the knife. I went into a corner to wash and soon he came out, called me the name and he reached up his hand and I saw it was fight. When he pulled his glasses off I knew it meant fight. I don't know who struck first, I think we struck about the same time. He cut me with the knife. I never at any time had any weapons in my hand. I was cut four or five times. I tried to defend myself as best I could. I am 26 years old this month. After our first argument and when we agreed to drop the matter I supposed everything was settled— went to the corner to wash myself and he went to the closet. He soon came out and took his glasses off, called me a son of a bitch and had his big knife. I was taken entirely by surprise and defended myself as best I could. I am told by the doctors I am about to die and make this as my dying statement. [Signed] W. J. Lincolnhoeger."

The defendant, as witness in his own behalf,...