State v. Dettmer

• Citation: 27 S.W. 1117,124 Mo. 426
• Parties: The State v. Dettmer, Appellant
• Decision Date: 05 November 1894
• Court: Missouri Supreme Court

27 S.W. 1117

124 Mo. 426

The State v. Dettmer, Appellant

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Andrew Circuit Court. -- Hon. William S. Herndon, Judge.

Murder in the first degree was the accusation against defendant, and on that he was found guilty of the second degree of that crime, and his punishment fixed at ten years in the penitentiary, and he appeals to this court.

The homicide of which defendant was convicted occurred at Dick Porter's saloon in the city of St. Joseph on the night of February 27, 1892. From a mass of irrelevant testimony these facts in regard to the killing are obtained: Two weeks before the homicide the defendant, William Dettmer, and Frank Breeze, the deceased, had a difficulty in which the defendant was worsted; no weapons were used by either party. As the defendant left the room he remarked, in the hearing of those who accompanied him to the door, "I will get that s -- of a b before a week;" similar threats were made by defendant to others down to a short time before Breeze was killed. On the night of the killing, the deceased was in the saloon with a number of others, and was about to engage in a game of pool, and had just commenced the game, when the defendant came in. While the deceased was standing at the pool table the defendant began to abuse him with foul epithets, keeping, at the same time, his hand on his pistol in his pocket, when the deceased said in reply that he wanted nothing to do with defendant and for him to go away, but if the defendant would go out into the yard he would whip him. The defendant continued his abuse, when the deceased again told him to go away, that he did not want to have any trouble with him; at which time the barkeeper began to remonstrate with the defendant and insisted on his keeping quiet; just at this juncture the defendant drew a revolver and fired at Breeze, who was standing near the pool table; the latter apprehending that the defendant was about to shoot at him dodged or attempted to dodge down behind the pool table, and the first shot fired by the defendant missed him, and the ball entered the wall of the room behind where the parties were standing. Immediately after the first shot was fired the deceased straighted up, wheeled half round, facing toward the door and from the defendant, and fled from him. The defendant then fired the second shot while Breeze was running away from him, and with his back turned, which struck the deceased between the middle lobe of the left ear and the base of the skull, and ranged upward and inward toward the frontal bone lodging near the right eye. From the effect of this wound the deceased died almost instantly.

The testimony on behalf of the defendant was to the effect that Breeze began the difficulty by using profane and obscene abusive words to defendant, at the same time having a cue and a billiard ball in his hand, when defendant said: "Breeze, you beat me up once, give me the worst of it; I am not looking for the worst of it again;" that Breeze continued his abuse, when the bartender came out and asked defendant to keep quiet, and defendant told him he would, etc.; that Breeze renewed the trouble and abuse, told defendant he had whipped him once and could do it again, and drew back the billiard ball as if to throw it at defendant, saying, "I will get you now," when defendant fired his pistol off "just to scare him," when he dodged down behind the pool table, and raised up again as if in the act of throwing, when defendant fired again, but "not with the intention of hitting him;" that when the second shot was fired, though Breeze was looking at defendant when Breeze came up from behind the table, yet he turned his face away from defendant, turned his head around from him in order to throw the ball at him. There was other testimony corroborating to a considerable extent that of defendant. One of the witnesses in describing the attitude of breeze when shot, saying: "He was facing to Dettmer, looking over his left shoulder, with his body to the wall."

There was also testimony that Breeze bore the reputation of being a quarrelsome, turbulent man, and there was testimony of a contrary effect. And there was testimony that the reputation of defendant as having a quiet and peaceable disposition was good.

After committing the crime defendant fled, and was subsequently captured in Tennessee, where he was living under an assumed name.

At the November term, 1893, of the Andrew circuit court, to which the venue had been changed, defendant filed his second application for a continuance on account of absent witnesses, which application was denied.

Affirmed.

Thomas F. Ryan and James W. Boyd for appellant.

(1) First. The court erred in overruling defendant's application for a continuance. The application complied with every requirement of the statute. R. S., sec. 4181. Second. The court erred in permitting the state, over the objection of the defendant, to introduce counter affidavits to rebut the showing made in defendant's application for a continuance. There is no law or authorities that justify the court in allowing the consideration of such affidavits. If the defendant's application made a proper showing for a continuance, then the court should have granted it, and ought not to have considered the counter affidavits. Besides, it had the effect of prejudicing the minds of the panel of jurors against the defendant to have the affidavits read in their presence, which was done in this case. We submitted this as clearly error upon the part of the court. (2) The court erred in permitting the state to introduce evidence of a former difficulty which the defendant had with another person that occurred two weeks prior to the fatal difficulty with the deceased. The effect of the evidence was to present to the jury testimony relating to another assault and to an entirely different transaction, which prejudiced the minds of the jury against the defendant in reference to the charge for which he was on trial. People v. Gibbs, 93 N.Y. 471; State v. Clayton, 100 Mo. 520; State v. Reavis, 71 Mo. 419; Wharton's Criminal Evidence [9 Ed.], secs. 30 to 50; 2 Bishop's Criminal Procedure, secs. 1121, 1124. (3) The court erred in refusing to instruct the jury as to manslaughter in the fourth degree, as asked for in the defendant's first instruction. The evidence on the part of the defendant shows that the deceased provoked the difficulty by using indecent and opprobrious epithets towards the defendant, and was in the act of assaulting the defendant with a billiard ball when the defendant fired the fatal shot, and that when the defendant killed the deceased he did so while in a heat of passion and aroused by the epithets used towards him and the assault made upon him by the deceased. The killing under such circumstances is not murder, but if not justifiable homicide, is only manslaughter in the fourth degree. State v. Stiltz, 97 Mo. 20; State v. Elliott, 98 Mo. 150; State v. McKinzie, 102 Mo. 620; State v. Douglas, 81 Mo. 231; State v. Berkley,, 92 Mo. 41; State v. Berkley, 109 Mo. 665; State v. Crabtree, 111 Mo. 136.

R. F. Walker, Attorney General, and R. E. Culver, Prosecuting Attorney, for the state.

(1) There was no error in overruling the application for continuance. State v. Murphy, 118 Mo. 7; State v. Banks, 118 Mo. 117. (2) The filing by the state of counter affidavits to defendant's application for a continuance was proper. State v. McCoy, 111 Mo. 517; State v. Bailey, 94 Mo. 311. (3) Under the particular circumstances in this case, it was not error to admit evidence of a former difficulty between deceased and defendant, for the purpose of showing the malice which actuated the latter on firing the fatal shot. State v. Williamson, 106 Mo. 162; State v. Senn, 11 S.E. (S. C.) 292; White v. State, 20 Tex.App. 652; People v. Thompson, 92 Cal. 506; Billings v. State, 12 S.W. 574; State v. Schleagel, 50 Kan. 325. (4) The failure to require the sheriff to be sworn before taking charge of the jury, as directed by section 4210, Revised Statutes, 1889, does not constitute reversible error, unless it is shown that defendant suffered prejudice thereby. State v. Frier, 118 Mo. 648. (5) No objections were made and exceptions saved at the time to the remarks alleged to have been made by the prosecuting attorney in his argument to the jury, and they will not be considered by this court. State v. Welsor, 117 Mo. 570; State v. Foster, 115 Mo. 451; State v. Bulling, 105 Mo. 204; State v. Musick, 101 Mo. 260; State v. Elvins, 101 Mo. 243; State v. DeMosse, 98 Mo. 340. (6) Evidence of statements made by defendant at a former trial are admissible. State v. Rose, 92 Mo. 207; State v. Jefferson, 77 Mo. 136; State v. Eddings, 71 Mo. 548.

OPINION

Sherwood, J.

I. There was no error in denying defendant's application for a continuance, and this is true for several reasons: Both of the absent witnesses are permanent residents of Buchanan county, and were there a few days before the trial. The day before the trial, a brother of the deceased saw and talked to both of the witnesses, one in Savannah Andrew county, where the cause was pending, and the other in St. Joseph. The record shows that a similar application on account of the absence of one of these witnesses had been granted by the court on a former occasion. The affidavit for the continuance states that affiant knows of no other witnesses by whom the same facts can be proved as by the absent witnesses and yet the record shows that there were...