State v. Ellis

• Decision Date: 31 October 1881
• Citation: 74 Mo. 207
• Parties: THE STATE v. CHARLES ELLIS, Appellant.
• Court: Missouri Supreme Court

74 Mo. 207

THE STATE

v.CHARLES ELLIS, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Merrick & Bishop for appellant.

D. H. McIntyre, Attorney General, for the State.

HOUGH, J.

The defendant was convicted of murder in the first degree in the St. Louis criminal court, and sentenced to be hanged. He appealed to the court of appeals, where the judgment of the criminal court was affirmed.

The opinion of the court of appeals contains the following statement of facts: “There was a house on the Levee in St. Louis called the ‘Red House,’ where negro steamboatmen were accustomed to meet for the purpose of gambling. The defendant Ellis was an employe of the house. On the day of the homicide the deceased, Mack Sanders, had been in the house, had given trouble, and had been put out by a policeman; but upon promising to behave himself he was allowed to come back. A little after that he took the money of some one, which was lying on the table, and was compelled by the defendant to give it up. Later in the day the proprietor, having occasion to go out, left the defendant in charge of the place. The deceased got into a dispute with one Tom Kelley about the reckoning of a throw of dice; Kelley claimed that he had won twenty cents of the deceased, which the deceased refused to pay. There was a large number of negroes in the room at the time. The defendant, hearing the noise, came in. The deceased in the meantime had drawn and opened a common pocket-knife, and threatened, in the rough language used by such persons, to cut any one who interfered with him. The defendant got upon the table, examined the checks, which were in a box, and then, taking a pistol from the box in which it was kept, ordered the deceased to pay the twenty cents which Kelley claimed of him, and to put up his knife. According to the defendant's testimony, the deceased said ‘I will drink my heart's blood before I will put up the knife.’ An affidavit as to what Kelley and another person, both of whom were colored steamboatmen, would testify to if present, was admitted in evidence by the State to prevent a continuance. It was there admitted that these witnesses, if present, would testify that the defendant told the deceased several times to put up his knife, and the deceased refused; that the defendant got down from the table, whereupon the deceased advanced upon him with his open knife in his hand, saying that he would cut any son of a bitch that came towards him, whereupon the defendant fired this pistol shot. No witness testified at the trial that the deceased was advancing on the defendant at the time the defendant fired the shot. On the contrary, the evidence of the State's witnesses tends to show that at the time the deceased was in the act of backing towards the door with the apparent purpose of escaping from Kelley who was pressing him to pay the money which he had won from him.”

How then does the case stand upon this evidence? It is a case where two persons quarrel in a public house, and one of them draws a knife and threatens to use it if interfered with. The person who is in charge of the house in the absence of the proprietor comes in, commands him to put up his knife, and on his refusing to do so takes a pistol out of a box and shoots and kills him.”

It may be stated in addition that the affidavit for a continuance stated that one of the absent witnesses would swear that it was not until the deceased advanced upon the defendant in a threatening manner, with a knife in his hand about twice as large as an ordinary pocket knife, that the defendant fired. Other witnesses stated that at the time of the shooting the deceased and the defendant were about six or seven feet apart.

1. STATEMENTS ADMITTED AS TESTIMONY OF ABSENT WITNESS: continuance.

While the statement of the court of appeals sets forth substantially the material facts developed at the trial, yet in summarizing these facts in the last two sentences of its statement, it seems to have entirely ignored as a part of the evidence in the cause, the facts which it was admitted by the State the absent witnesses of the defendant would testify to if present. These facts were as much a part of the evidence in the cause as if the absent witnesses had been present at the trial and testified to them in the presence of the jury, and the judge of the criminal court very properly so instructed the jury in response to an inquiry from them as to whether said facts should be considered by them in making up their verdict. The statute on this subject is as follows: “If in any such case the adverse party will consent that on the trial the facts set out in the application, or affidavit, as the facts which the party asking the continuance expects to prove by the absent witnesses, shall be taken as, and for, the testimony of such witness, the trial shall not be postponed for that cause; but the facts thus set out shall be read on the trial, and shall be taken and received by the court or jury trying the cause as the testimony of the absent witness; but such facts may be contradicted by other evidence, and the general reputation of such witness may be impeached as in the case of other witnesses who testify orally or by deposition.”

The charge of the court to the jury was as follows: “The charge in this cause is for murder in the first degree. Against the accused the indictment alleges that he shot and killed one Mack Sanders, and that he did so feloniously, willfully, deliberately, premeditatedly and of his malice aforethought. By the term ‘feloniously’ is meant wickedly and unlawfully, from a depraved heart or a mind which regards not social obligation, but is fatally bent on mischief. By the term ‘willfully’ is meant intentionally, not by accident. By the term ‘deliberately’ is meant a cool state of the blood, not in that heated state which the law denominates passion; and the passion here meant is not that which comes of no cause, but that, and that only, which is produced by some reasonable provocation. By the term ‘premeditatedly’ is meant thought of beforehand, but for any length of time however short. It means thought of in the sense of thought over. If any act be thought of at all, even for a moment, and a design to perpetrate it is fully formed in the mind before the act is done, it is in law a premeditated act, but if not thus thought of before it is done, it is not a premeditated act. By the term ‘malice’ is meant the intentional doing of a wrongful act without just cause or excuse for it; and by ‘malice aforethought’ is meant to do an evil deed formed in and by the mind before the doing of the deed is begun. In other words, by ‘malice aforethought’ is meant simply a mental condition, and as applied to the facts of this case, the terms mean an intent actually to take the life of Sanders fully formed and existing in the mind of Ellis at some time, however short, before the act of killing was done.”

With this explanation of the meaning of these technical terms, the court instructs you that if from the evidence you believe and find that, at the city of St. Louis, within three years next before the finding of the indictment, the defendant did, with the pistol alleged, loaded as alleged, make an assault upon the said Mack Sanders; that with it he did shoot and kill said Sanders in the manner described in the indictment, and that he did all this feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, you will find him guilty of murder of the first degree, as by the indictment he is charged. And unless from the evidence you so believe and find, you will find him not guilty of murder of the first degree.

Murder is either of the first or second degree. To constitute the killing of a human being murder of the first degree, the elements of willfulness, deliberation, premeditation and malice aforethought must exist together in the act. To constitute such a killing murder of the second degree, all these elements must exist together in the act except that of deliberation. If, therefore, because of the absence of deliberation you acquit the defendant of the offense charged, but from the evidence believe and find that, at the city of St. Louis, and within three years next before the finding of the indictment, the defendant did, with the pistol alleged, loaded as alleged, make an assault upon the said Sanders; that with it he did shoot, and, by thus shooting did actually kill him as alleged, and that he did all this not deliberately but feloniously, willfully, premeditatedly and of his malice aforethought, you will find him guilty of murder of the second degree, and unless from the evidence you so believe and find, you will acquit him.

The right to defend one's self against the violent assaults of others, is a right which the law concedes to all men. In repelling danger not of his own seeking, whether such danger be real or only apparently real and impending, the law permits one to use force even to the extent of slaying his assailant, if that be necessary to avert the apprehended danger, and in such cases the killing will be justifiable, although it may afterward turn out that the appearance was false. But one so placed must act at his peril from the force of the circumstances in which he stands, for his conduct will be subject to judicial review and must be justified or condemned by the facts and circumstances which on his trial are shown to have surrounded him. The defendant, therefore, may have done the shooting complained of and still be innocent of any offense against the law. If at the time he did it he had reasonable cause to apprehend from Sanders, and in good faith did apprehend the immediate danger of some serious injury to his own person, and to avert such danger he shot, and if at the time he did so he had reasonable cause to believe, and in good faith did believe it necessary, in order to protect himself from the...