State v. Downs

• Decision Date: 14 February 1887
• Citation: 91 Mo. 19,3 S.W. 219
• Parties: STATE v. DOWNS.
• Court: Missouri Supreme Court

3 S.W. 219

91 Mo. 19

STATE v. DOWNS.

Supreme Court of Missouri.

February 14, 1887.

1. MANSLAUGHTER — NOT FIRST DEGREE.

On an indictment for unlawful killing, in which it appears that deceased was in the act of attempting to strike defendant's son, of 11 years of age, when defendant seized a bottle out of which deceased and others were drinking whisky, and struck

him a fatal blow on the head, it is error to instruct the jury on manslaughter in the first degree, under Rev. St. Mo. 1879, § 1238, in which that crime is defined as the killing of a human being while the accused is attempting to commit a crime less than felony, when such killing would be murder at common law.

2. SAME — EVIDENCE — DEFENDANT'S BELIEF.

On an indictment for manslaughter, testimony by defendant that he believed deceased was about to do his (defendant's) son some great personal injury is inadmissible.

3. SAME — EVIDENCE — CHARACTER OF DECEASED.

On an indictment for manslaughter, where there is doubt as to whether the killing was done from malice or from a sense of real danger, and there is evidence that deceased commenced the attack, testimony of the turbulent character of the deceased is admissible.

4. SAME — THREATS OF DECEASED ADMISSIBLE.

On an indictment for manslaughter, where there is evidence to show an actual assault by deceased upon defendant, evidence of previous threats by deceased, whether communicated to the defendant or not, is admissible; but not so where the assault is made, not on defendant, but on his son.

5. WITNESS — IMPEACHMENT OF WITNESS.

Where, in a criminal case, the defendant offers to prove by another witness that a witness who had been examined by the state had said that he and another witness would leave, and not be witnesses against defendant, for $100, the defendant is entitled, in cross-examination, to ask such state witness whether he made the statement alleged.

Appeal from circuit court, Iron county.

Indictment for manslaughter. Defendant appeals.

Atty. Gen. Boone, for respondent. Dinning & Byrnes, for appellant.

BLACK, J.

The defendant was indicted for killing Peter Prow, and found guilty of manslaughter in the first degree. The evidence for the state is, in substance, as follows: Between 9 and 10 o'clock on the night of the sixteenth December, 1882, the deceased and others were in a saloon kept by the defendant. Deceased asked several persons, and among them Newberry, to drink. Newberry, to avoid drinking, dodged behind some men, when Prow, the deceased, went after him, saying: "I will kick him." The defendant's son, a lad some 11 years old, who was on a card-table, raised up and asked Prow who he was going to kick. Prow told the boy to go along about his own affairs. The boy again asked Prow the same question, when Prow told him to go, at the same time suggesting that the boy had been intimate with negro women. The boy, in connection with abusive language, hit Prow in the face, when the latter stepped back and threw up his hands, though not then in reach of the boy. At this moment the defendant, without any warning, stepped up behind Prow, and hit him on the head with a cut-glass bottle or decanter containing liquor, and in all weighing from three to five pounds. Prow fell, and soon died from the effects of the blow. Evidence for the defense tends to show that the boy was standing by a stove, when Prow hit him, knocking him over on the card-table; that deceased then raised his hands, when the defendant stepped up with the bottle from which the parties were taking the liquor, and inflicted the blow which proved fatal.

1. The first complaint is that the court erred in instructing upon manslaughter in the first degree. That degree of homicide, as defined by statute, is "the killing of a human being, without the design to effect death, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration, or attempt to perpetrate, any crime or misdemeanor not amounting to a felony, in cases where such killing would be murder at the common law." Section 1238, Rev. St. 1879. This section of the statute was considered in the case of State v. Sloan, 47 Mo. 604. It is there held, following a line of decisions upon a statute of the state of New York like our own, that, in order to convict the defendant of manslaughter in the first degree, the defendant must be engaged in the commission of some offense other than violence upon the person killed. The statute contemplates a class of cases where the defendant is engaged in the commission or attempt to commit a crime or misdemeanor not amounting to a felony, other than violence to the person killed, and, without design to effect death, kills a human being. The crime or misdemeanor...