State v. Gieseke

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGantt
Citation209 Mo. 331,108 S.W. 525
PartiesSTATE v. GIESEKE.
Decision Date18 February 1908
108 S.W. 525
209 Mo. 331
STATE
v.
GIESEKE.
Supreme Court of Missouri, Division No. 2.
February 18, 1908.

1. CRIMINAL LAW — PLEA IN ABATEMENT — PRELIMINARY EXAMINATION.

Rev. St. 1899, § 2476a [Ann. St. 1906, p. 1487], providing that no prosecuting attorney shall file any "information" charging any person with a capital offense until such person shall first have been accorded a preliminary examination before some justice of the peace, in the county where the offense is alleged to have been committed, does not apply to an indictment found by the grand jury, and hence a plea in abatement to an indictment found by the grand jury, by reason of the dismissal of the charges against defendant by information, before the preliminary examination had been had, is properly overruled.

2. INDICTMENT — TIME OF FINDING — PRIOR PROCEEDINGS.

The grand jury may investigate and indict one charged with a felony, although he has been arrested and held for a preliminary examination, and is not bound to await the action of the examining court, for the reason that the action of the examining court is no bar to the right of the grand jury to inquire into the case and indict the accused, even though he has been discharged on the preliminary examination.

3. SAME—JURISDICTION OF COURT.

Rev. St. 1899, § 2476 [Ann. St. 1906, p. 1486], providing that that mode of procedure which shall be first instituted by the filing of the indictment or information for any offense shall be pursued to the exclusion of the other, so long as the same shall be pending and undetermined, and the court in which the prosecution shall be first commenced shall retain jurisdiction and control of the case to the exclusion of any other court, so long as the same shall be pending and undisposed of, applies only to informations filed in the courts which have jurisdiction to determine the guilt of accused, and not to informations filed before a justice of the peace or before the St. Louis court of criminal correction, merely for the purpose of binding the defendant over to await the action of the grand jury, and hence the pendency of such an information in the St. Louis court is no bar to an indictment by the grand jury.

4. CRIMINAL LAW—PLEA IN ABATEMENT—ARRAIGNMENT—EFFECT.

The entering of a plea in abatement to an indictment does not withdraw the plea of not guilty, and on the overruling of the plea in abatement and a motion to quash the indictment it is not necessary that a new arraignment be had.

5. SAME—INSTRUCTIONS—TAKING INSTRUCTION AS A WHOLE.

An instruction in a prosecution for murder that no words of abuse or vile names, however calculated to excite anger, are sufficient to reduce the crime of killing to a lower degree than murder, and the use of such words would not constitute "just cause" or provocation to use a deadly weapon, though defective in the use of the words "just cause," rather than "reasonable or lawful cause," is not erroneous, where the instruction further told the jury that, in order to reduce the crime of killing to manslaughter, the provocation must have consisted of personal violence to the defendant, or the danger of such personal violence must have been so apparent or so appeared to defendant at the time of the killing.

6. HOMICIDE—INSTRUCTIONS—SELF-DEFENSE.

An instruction in a prosecution for murder that words, however vile, will not justify an assault, and that, if the defendant sought or brought on a difficulty with the deceased with the intent to kill him or do him some great bodily harm, then the defendant cannot justify the killing on the plea of self-defense, is not erroneous, in that defendant might plead self-defense where he does not enter into combat with a felonious intent, since the phrase "with the intent to kill him" modifies the phrase "sought or brought on a difficulty."

7. SAME—HEAT OF PASSION.

In a prosecution for murder, an instruction that, if defendant intentionally shot the deceased, and at the time of the shooting the defendant was so far under the influence of a passion, suddenly aroused by being struck or assaulted by the deceased before the defendant shot deceased, as to render the defendant incapable of thinking coolly of the natural consequences of his act, the jury should convict of manslaughter in the fourth degree, is a proper instruction as to heat of passion, where the court further instructed that it was a passion resulting from the provocation, and not the provocation itself.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Walter Gieseke was convicted of murder in the second degree, and appeals. Affirmed.

Joseph McCoy, John B. Denvir, Jr., and S. S. Bass, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.


On February 5, 1906, the grand jury of the city of St. Louis returned an indictment against the defendant, charging him with murder in the first degree. At the January term, 1907, the defendant was tried and convicted of murder in the second degree, and his punishment assessed at 10 years' imprisonment in the penitentiary. His motions for new trial and in arrest of judgment were heard and overruled, and the defendant appeals.

The state's evidence tended to prove that the defendant was a butcher by occupation, and lived in the city of St. Louis. The deceased, Charles Schaefer, and his wife occupied rooms in the second story of an apartment house in said city. The mother of the defendant had done some sewing for the wife of the deceased, and had been delayed in the collection of her account for the same, which amounted to $1.20. About 7 o'clock on the evening of November 8, 1905, the defendant, his mother, and a younger brother called at the home of the deceased, and found him and his wife eating supper. After asking for the money due the mother of the defendant, the wife of the deceased said she was poor and could not pay it all at once, but desired to be allowed to pay it in two or three payments. This was not satisfactory to the defendant's mother, and some words were exchanged between the parties. The deceased told his wife to push defendant's mother down the stairs, and ordered the defendant to leave the place. About that time

108 S.W. 526

the defendant drew his pistol upon the deceased, and the latter left the house, saying he was going to get a policeman to arrest the defendant, and walked through a near-by saloon. The defendant waited on the porch of the house of the deceased for awhile, and, when asked by the deceased's wife if he intended to shoot, her husband replied, "It is none of your d____ business." After sitting on the porch for some time with his pistol in his hand, the defendant got up and went into the same saloon through which the deceased had gone, and took two or three drinks of liquor. The deceased had inquired for a policeman in the saloon, and had gone out of another door. The defendant stated to a man in the saloon that he had had trouble with the man upstairs, trying to collect for some clothing that his mother had sewed for them; that his younger brother had been there to collect the bill, and the deceased had threatened to throw him and his mother down the stairs if either of them ever came there again; that he would not stand for that, and he was going to get even with that man. Defendant then took his pistol out of one pocket and put it into another pocket and walked out of the saloon. In a few minutes the deceased returned to his porch, saying he could not find a policeman, and the defendant said: "I have got you, you son of a b____." The deceased tried to grab the defendant's pistol, and the defendant fired twice at the deceased, but missed him. The struggle after the pistol continued, and the defendant backed down the stairs out into the yard where he fired three more shots, the third shot taking effect in the body of the deceased. The deceased then went into his room, an ambulance was sent for, and he was taken to the City Hospital, where he died two days later. The defendant, after the shooting, returned to the saloon, took out his pistol, and laid it on the bar saying: "I got my man." After taking another drink, the defendant stepped out on the sidewalk, where two policemen arrested him. A post mortem examination was held on the body of the deceased, and the physicians testified that the deceased's death was the result of a gunshot wound, which entered the abdomen 2½ inches to the left, and about 1½ inches above the navel. The bullet went straight through the body of the deceased.

On the part of the defendant the...

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23 practice notes
  • State v. Malone, No. 30987.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1931
    ...approved by this court. State v. Robinett, 281 S.W. 29; State v. Little, 228 S.W. 797; State v. Canton, 234 S.W. 799; State v. Gieseke, 209 Mo. 331; State v. Ballance, 207 Mo. 607; State v. Gamble, 119 Mo. 427; State v. Gartrell, 171 Mo. 489; State v. Griffin, 87 Mo. 608; State v. Gordon, 1......
  • State v. Warren, No. 30203.
    • United States
    • Missouri Supreme Court
    • November 25, 1930
    ...State v. Minor, 193 Mo. 597; State v. Silk, 145 Mo. 240; State v. Crabtree, 111 Mo. 136; State v. Gartrell, 171 Mo. 489; State v. Gieseke, 209 Mo. 331; State v. Ballance, 207 Mo. 607; State v. McKenzie, 177 Mo. 699; State v. Wilson, 98 Mo. 440. (2) The court erred in failing to define the t......
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...v. Umfried, 76 Mo. 404; State v. Rose, 74 Mo. 213; State v. Creighton, 330 Mo. 1176, 52 S.W. (2d) 560; State v. Gieseke, 209 Mo. l.c. 542, 108 S.W. 525; State v. Sterling, 72 S.W. (2d) 70; State v. Reed, 154 Mo. l.c. 131, 55 S.W. 278. (24) Even if appellant struck first blow or thereafter u......
  • State v. Foster, No. 39962.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1946
    ...State v. Skaggs, 159 Mo. 581, 60 S.W. 1048; State v. McKinzie, 102 Mo. l.c. 627; State v. Umfried, 76 Mo. l.c. 407; State v. Gieseke, 209 Mo. 331, 108 S.W. 525. (34) An instruction on self-defense must declare principle defendant has the right to act upon appearances, even though they be fa......
  • Request a trial to view additional results
23 cases
  • State v. Malone, No. 30987.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1931
    ...approved by this court. State v. Robinett, 281 S.W. 29; State v. Little, 228 S.W. 797; State v. Canton, 234 S.W. 799; State v. Gieseke, 209 Mo. 331; State v. Ballance, 207 Mo. 607; State v. Gamble, 119 Mo. 427; State v. Gartrell, 171 Mo. 489; State v. Griffin, 87 Mo. 608; State v. Gordon, 1......
  • State v. Warren, No. 30203.
    • United States
    • Missouri Supreme Court
    • November 25, 1930
    ...State v. Minor, 193 Mo. 597; State v. Silk, 145 Mo. 240; State v. Crabtree, 111 Mo. 136; State v. Gartrell, 171 Mo. 489; State v. Gieseke, 209 Mo. 331; State v. Ballance, 207 Mo. 607; State v. McKenzie, 177 Mo. 699; State v. Wilson, 98 Mo. 440. (2) The court erred in failing to define the t......
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...v. Umfried, 76 Mo. 404; State v. Rose, 74 Mo. 213; State v. Creighton, 330 Mo. 1176, 52 S.W. (2d) 560; State v. Gieseke, 209 Mo. l.c. 542, 108 S.W. 525; State v. Sterling, 72 S.W. (2d) 70; State v. Reed, 154 Mo. l.c. 131, 55 S.W. 278. (24) Even if appellant struck first blow or thereafter u......
  • State v. Foster, No. 39962.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1946
    ...State v. Skaggs, 159 Mo. 581, 60 S.W. 1048; State v. McKinzie, 102 Mo. l.c. 627; State v. Umfried, 76 Mo. l.c. 407; State v. Gieseke, 209 Mo. 331, 108 S.W. 525. (34) An instruction on self-defense must declare principle defendant has the right to act upon appearances, even though they be fa......
  • Request a trial to view additional results

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