State v. DiEckman

• Decision Date: 07 March 1882
• Citation: 11 Mo.App. 538
• Parties: STATE OF MISSOURI, Respondent, v. WILLIAM DIECKMAN, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 538

STATE OF MISSOURI, Respondent,

v.WILLIAM DIECKMAN, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 7, 1882.

1. An indictment for murder in the first degree will support a conviction for murder in the second degree.

2. Evidence of threats by the accused against the deceased, made a few hours before the homicide, are competent in a trial for murder.

3. Evidence of threats susceptible of an innocent interpretation, but which, taken in connection with other threats made directly against the deceased may have a guilty meaning, may properly go to the jury.

4. If, in pursuance of a previously formed design, one prepares his weapon, provokes another to combat, and kills him, his mental excitement at the time does not necessarily reduce the crime to murder in the second degree.

5. If the design to kill is suddenly formed under heat of blood caused by lawful provocation, the killing is murder in the second degree.

6. If the design to kill is suddenly formed under heat of blood produced by an assault upon the accused, the killing may be manslaughter in the third or fourth degree.

7. If there is evidence to go to the jury as to different grades of crime, the matter is properly left to the jury under proper instructions as to the different grades.

8. Evidence of statements made by jurors after the trial will not be received to impeach their verdict.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Affirmed.

M. F. TAYLOR, for the appellant: An indictment must put the parties upon guard as to the specific grounds upon which the charge is founded.-- Bowe v. The State, 5 Mo. 364; Watson v. The State, 5 Mo. 497; The State v. Matterson, 6 Mo. 399; The State v. Jones, 20 Mo. 60. If not murder in the first degree, the crime was manslaughter.-- The State v. Starr, 38 Mo. 277; The State v. Holm, 54 Mo. 165; The State v. Banstetter, 65 Mo. 154; The State v. Weiners, 66 Mo. 11. A declaration by a juror, after the trial, that he had answered untruly on his voir dire as to his prejudice, is admissible.-- The State v. Ross, 29 Mo. 51; The State v. Burnside, 37 Mo. 348; Batte v. Coffman, 33 Mo. 78; Farrar v. The State, 2 Ohio, 57.

JOHN R. WARFIELD, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The defendant was indicted for murder in the first degree; was convicted of murder in the second degree, and sentenced to twenty years in the penitentiary.

1. The first point which is pressed upon our attention is, that the indictment is defective, because the appellant's counsel says, the evidence, if it tends to show any offence greater than manslaughter, shows a killing by lying in wait. We do not see anything substantial in this. The indictment is a good indictment for murder in the first degree under the statute. Such an indictment is sufficient to support a conviction for murder in the second degree, which is included in murder in the first degree. We suppose that the learned counsel really means that, instead of the indictment being defective, there is a variance between what is charged in the indictment and the evidence. There is no such variance. There is no evidence whatever tending to show a killing by lying in wait. The evidence shows a killing in a broil and combat between the defendant and the deceased.

2. The next objection is, that the court admitted evidence of certain threats made by the accused on the day of the homicide; that the evidence failed to connect these threats with the deceased; and, therefore, that the court ought to have excluded them by a proper instruction, although not asked to do so by the defendant. Conceding that an error prejudicial to the accused on the trial of an indictment for a felony will entitle the defendant to have the judgment reversed, although the error was not brought to the attention of the trial court, by the proper objection and exception, yet we see no room for the application of the rule in this case, for we are of opinion that all the evidence which the learned counsel supposed the court ought to have been thoughtful enough to exclude of its own motion, although its attention was not called to the impropriety of allowing the jury to consider it, was perfectly competent evidence, and such as is always admitted on trials for homicide to show motive on the part of the accused. The evidence objected to need not be set out in extenso in this opinion. It is sufficient to say that it consisted of acts and expressions of the defendant on the day of the homicide and within a few hours of the time when it took place. Some of these expressions were in the form of direct threats against the life of the deceased, such as were testified to by the witness Solomon Moore, who swore that on the morning of the day of the homicide, the defendant told the witness, speaking of the deceased, “If you will come over to-night, I will show you his life or his guts.” Others were in the shape of vague threats of violence against some unknown person, such as were testified to by the witness DeHart, who was the bar-keeper of the deceased, and who testified that the defendant, being in the saloon on the day of the homicide, and before it took place, said, speaking of his knife, which he was whetting on an oil-stone, to a third person with whom he had tried to start a quarrel, “I will not need it for you, but I may need it for some one else.” This knife was the same knife with which the killing was afterwards done. The testimony also showed that the defendant, on the day of the homicide and before it took place, got an unloaded double-barrelled shot-gun, took it away, and returned with it loaded; said that “he could kill two men with the loads in that gun and knock the rest down with the stock;” that he told the witness, who had taken the gun up, to put it down, and that the defendant then sat down by the side of the gun, and sat there until the deceased came home. In the same category are the expressions used by the defendant in conversing with the witness Garland, who saw the defendant about one o'clock of the day of the homicide, that is, about eight hours before it took place. He seemed boisterous, and when asked by the witness what was the matter, said he was “going to run the town,” or something to that effect; that he met the defendant later in the day with a double-barrelled shot-gun on his shoulder; asked him if he was going to run the town; the defendant replied, “I am;” and in an answer to another question, said, “I will fix him.” Or that testified to by Frank McDonough, who met the defendant at three or four o'clock on the same day, and the defendant said to him, “I have quit work up there, and am going down to get work, but am coming back to get even with somebody.” Or that testified to by Earnest Hill, who met the defendant about sunset of the same day. The defendant had a shot-gun which had caps on it; said “he was going over to settle up with Mertz, and if he did not do what was right, there...