State v. Dunn

• Citation: 221 Mo. 530,120 S.W. 1179
• Parties: STATE v. DUNN.
• Decision Date: 08 June 1909
• Court: United States State Supreme Court of Missouri

120 S.W. 1179

221 Mo. 530

STATE v. DUNN.

Supreme Court of Missouri, Division No. 2.

June 8, 1909.

1. CRIMINAL LAW (§ 670)—OFFER OF PROOF.

Where a witness on the trial intended to state that she had not said, before the grand jury or elsewhere, that she had seen accused and decedent fight, and the witness was so understood by counsel for accused, the court properly prevented counsel from asking her whether she did not tell the grand jury "a certain thing" not disclosing what he intended to ask the witness.

2. HOMICIDE (§ 3)—"DEADLY WEAPON."

A "deadly weapon" is one likely to produce death or great bodily injury, and the manner in which it is used in the particular instance may enter into the question whether it is deadly.

3. HOMICIDE (§ 290)—DEADLY WEAPON.

A club 22 inches long, 3½ inches wide and ¾ of an inch thick, used to beat a person about the head, causing death, is a dangerous and deadly weapon per se, and the court in its instructions may assume that it was such a weapon.

4. CRIMINAL LAW (§ 304)—EVIDENCE—JUDICIAL NOTICE—COMMON KNOWLEDGE.

Such things as all persons of ordinary intelligence are presumed to know need not be proved.

5. HOMICIDE (§ 112)—SELF-DEFENSE.

Self-defense is not available, where the difficulty was sought by accused's own willful act with the intention of doing decedent some great bodily harm, or where, with such intent, he voluntarily entered into the difficulty.

6. HOMICIDE (§ 300) — SELF-DEFENSE — INSTRUCTIONS.

An instruction that self-defense will not avail accused in any case where the difficulty is sought for, or where he voluntarily enters into the difficulty "with the intention of killing or of doing some great bodily harm," etc., properly submits the issue of self-defense; the quoted words applying to the case where the difficulty is sought by accused.

7. CRIMINAL LAW (§ 822)—TRIAL—INSTRUCTIONS.

The instructions must be considered as a whole, and accused cannot single out for criticism one of the constituents of a sentence, without any reference to its other components by which the first is qualified, and with which it is connected, to bring out the true meaning of the trial court.

8. HOMICIDE (§ 300)—EVIDENCE — SELF-DEFENSE.

Where the physical facts prove that accused was the aggressor in the difficulty resulting in the death of decedent, the court properly limited the right of self-defense by stating the law applicable to one voluntarily entered into a difficulty.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

John R. Dunn was convicted of murder in the second degree, and he appeals. Affirmed.

Thos. B. Harvey, for appellant. Elliott W. Kajor, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

BURGESS, J.

The defendant was prosecuted under an indictment charging him with murder in the first degree, for the killing of one John Cook, with a heavy stick or club, on the evening of January 9, 1907, in the city of St. Louis, and was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of 10 years. Having filed motions for new trial and in arrest of judgment, which were overruled by the court, defendant appealed.

Deceased, John Cook, who was nicknamed "Blackie," and the defendant were seen together, drinking, at Morische's saloon, called the "Bellevue," located at 5000 Easton avenue, in the city of St. Louis, on the afternoon of January 9, 1907, both being under the influence of liquor. Cook had been employed doing odd jobs or chores in and about the saloon, and had a "bunk" or sleeping place in a shed back of the saloon. He was about 50 years of age, his hair being slightly gray, and he weighed over 170 pounds. The defendant was past 21 years of age at the time of the homicide, and for some 8 or 9 months had been a constant frequenter of this and other saloons. On the evening in question, while the two men were drinking at a table in the saloon, the bartender heard the defendant say to deceased: "Blackie, I ought to knock your head off; you are an old man, and I wouldn't hurt you"—but on cross-examination the witness explained that he did not attach any importance to the remark, as he had often heard the defendant make remarks of that character in jest, and that the defendant, after saying that, called the deceased to the bar of the saloon, and they had a drink together; the defendant paying for the same. The defendant at the time was noticed wearing a white sweater under a black coat, and had on a derby hat. About 5:15 o'clock on said afternoon both men were observed leaving the saloon, and the evidence is that they proceeded to another saloon located at 1407 Kingshighway, between Wells and Ridge avenues, and kept by one Mike Francesconi. This saloon was about 1½ blocks from the Morische saloon, and was close to an alley, on the northwest of which was a stoneyard, used for the purpose of dressing stone. The defendant and deceased arrived at the Francesconi saloon about 5:20 o'clock that afternoon, ordered some drinks, the defendant paying for same, and soon afterwards left the saloon together through the door next the alley. About 7:15 o'clock, on said evening, the body of the deceased was found in said alley, and lying between 50 and 75 feet from the mouth of the alley at Kingshighway. There was much mud in the alley where the body was found. Near the head was a pool of blood, and a few feet distant was found a piece of 2×4 scantling about 2 feet in length, with blood on it. The deceased had two deep wounds on the left side of his head, and one on the right side near the ear, from which blood was still flowing, and from which he died. The cuts were apparently done by some dull instrument, and the skull was fractured. He was dead when found. The defendant returned to the Francesconi saloon alone about half an hour after the time he left it in company with the deceased. To Dr. Heitzig, a dentist, and some others in the saloon, he showed his hands, the backs of which were scratched and bleeding a little, and mentioned something about somebody "trimming" him. He then sat down at a table in the saloon, and apparently went to sleep, his head resting on his arms, and was shortly thereafter arrested by the officers. On the way to the police station Officer Lawler asked the defendant what was the trouble between him and "Blackie," and he answered, "Oh, Blackie tried to take a soak at me," but refused to say anything further at that time. At the police station he explained that he and Blackie had been drinking at the Francesconi saloon, that they then started back to the Morische saloon, and that Blackie left him at the entrance to the "grove," saying he was going to his bunk, and that he (defendant) then went into the Morische saloon for another drink, afterwards returning to Francesconi's saloon, where he was arrested. On being questioned more closely he refused to make any further statements, saying he wanted to consult his attorney and see his father before talking further. His garments were taken off and examined, and on the hat, coat, sweater, pants, and handkerchief so examined was found what appeared to be fresh blood, and his outer garments and shoes had mud on them. The right hand of defendant was swollen, and a streak of blood was found on the palm, and the upper part of one of his ears was bruised and discolored. It does not appear that the defendant, before his trial, which occurred some 10 months after the killing, made any statement as to how the killing occurred. The morning after the deceased was found in the alley other pieces of scantling, like to that which was found the evening before with blood thereon, were discovered in the stoneyard; said pieces being used in connection with the work in the stoneyard.

The only direct testimony as to killing, aside from that of defendant himself, was that given by Ida Bunting, a little girl, between 9 and 10 years of age, who lived at 5025 Ridge avenue. She testified that as she was returning from an errand to a butcher shop at Easton and Academy avenues, about 5:30 o'clock on said evening, and while crossing a vacant lot on which was the stoneyard, at the rear of Francesconi's saloon, she saw a young man throwing stones at an old man who was lying in the mud in the alley; that thereafter the young man took off his coat and picked up a club, with which he beat the old man on the head; that she observed that the young man wore something white, and that she told her mother as soon as she got home about what she saw.

Defendant testified that after he and the deceased left the Francesconi saloon that evening and started towards Morische's saloon, the deceased, on reaching the gateway, leading to Morische's garden, left the defendant, saying, "I am going to my bunk and go to sleep"; that he (defendant) said, "I am going in to have another drink, and then I am going down to Mike's [meaning Francesconi's] and from there home"; that he (defendant) then went into Morische's saloon and took a drink, and immediately started back, on Kingshighway, to Francesconi's; that on leaving the Morische saloon he met a Mr. Crump, who walked with him to Wells avenue, where they parted; that defendant said to Crump, "before you go home, why not come down to Mike's and have a drink with me?" but that Crump, who was in a hurry home, declined his invitation; that he then started towards Francesconi's saloon, and just as he passed the foot of the alley, near the saloon door, the deceased, who was standing at the corner of the alley, said to him, "Come here, kid"; that deceased grabbed and pulled him into the alley, and they grappled and fought each other, moving back in said alley a distance of some 75 feet; that deceased struck him on the head and knocked him down, and as he fell down, the deceased said, "Damn you, I got you now, and I will kill you"; that defendant picked up a club which he saw on the ground, and that about the same time...