State v. Emery
| Decision Date | 30 April 1883 |
| Citation | 78 Mo. 77 |
| Parties | THE STATE v. EMERY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Moberly Common Pleas Court.--HON. G. H. BURCKHARTT, Judge.
AFFIRMED.
Reed & Hall for appellant.
D. H. McIntyre, Attorney General, for the State.
The defendant was indicted for murder in the second degree. On trial he was found guilty of a less offense, to-wit, manslaughter in the fourth degree, and his punishment assessed at two years in the penitentiary. The evidence shows that the defendant, within a few moments before the fatal occurrence, had been brandishing a self-cocking and loaded revolver in his saloon, endangering the lives of those who were there. He was warned of the danger of such actions, and once, when his pistol dropped on the counter, a bystander picked it up and put it in his pocket; but on defendant's promise to put the pistol up, it was returned to him. In a few moments afterward, however, while flourishing the pistol again, it was discharged, resulting in the death of Hammond, a friend, it seems, of the defendant, who had just come into the saloon.
The statute provides: “Every other killing of a human being by the act, procurement or culpable negligence of another which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this chapter to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” R. S. 1879, § 1250.
The first and sixth instructions given for the State, correctly declare the law, and taken together, announce this doctrine: That in order to find a person guilty of manslaughter in the fourth degree, it is sufficient to show that the shooting, though unintentionally done, was the result of negligence in handling the fire-arm, indicating on the part of such person a carelessness or recklessness incompatible with a proper regard for human life.
Mr. Bishop says: “There is little distinction, except in degree, between a positive will to do wrong and an indifference whether wrong is done or not; therefore, carelessness is criminal.” Thus, if a person by careless or furious driving unintentionally run over another and kill him, it will be manslaughter; or, if one in command of a steamboat, by negligence or carelessness unintentionally run down a boat and a person therein is thereby drowned, the act is manslaughter. 1 Bishop Crim. Law, §§ 313, 314. Or if a person points a gun without examining whether it is loaded or not, and it happens to be loaded and death results, he is guilty of negligence and manslaughter. Reg. v. Jones, 12 Cox C. C. 628. So, also, if death ensue from discharging a loaded gun at night into the public highway, whether any person were in sight or not, the...
To continue reading
Request your trial
-
State v. Baublits
... ... Emery, 78 Mo ... 77; State v. Beckham, 267 S.W. 817; State v ... Renfro, 279 S.W. 702; State v. Scheufler, 285 ... S.W. 419. (2) The instruction given in regard to culpable ... negligence correctly states the law. State v. Emery, ... 78 Mo. 77; State v. Weisman, 256 S.W. 740; State ... ...
-
State v. Bradley
...give such instruction, although not requested to do so, constituted reversible error. State v. Morrison, 104 Mo. 638, 16 S.W. 492; State v. Emery, 78 Mo. 77; State v. Markel, 77 S.W.2d 112; State Baublits, 27 S.W.2d 16; Sec. 4070, R.S. 1939; State v. Burrell, 298 Mo. 672, 252 S.W. 709. (4) ......
-
State v. Aitkens
... ... Lewis' Ed.), *p. 192, p. 1589; See also cases cited in ... State v. Studebaker, 334 Mo. 471, 480, 66 S.W.2d 877, ... [ 11 ] State v. Mull, 318 Mo. 647, 654, 300 S.W ... 511, 513; State v. Lockwood, 119 Mo. 463, 466-7, 24 S.W ... 1015, 1016 ... [ 12 ] State v. Emery, 78 Mo. 77, 47 Am. St ... Rep. 92; State v. Morrison, 104 Mo. 638, 642, 16 S.W. 492, ... 493; State v. Millin, 318 Mo. 553, 558, 300 S.W. 694, 697; ... State v. Baublits, 324 Mo. 1199, 1211, 27 S.W.2d 16, 21; ... State v. Studebaker, supra, 334 Mo. l.c. 476(I), 66 S.W.2d ... l.c. 878(I); ... ...
-
State v. Baublits
...L. Cunningham of Counsel. (1) The verdict is in proper form and in accordance with the charge embraced in the information. State v. Emery, 78 Mo. 77; State v. Beckham, 267 S.W. 817; State v. Renfro, 279 S.W. 702; State v. Scheufler, 285 S.W. 419. (2) The instruction given in regard to culpa......